The petitioner’s legal counsel M. Hafidz Al Zikri arguing against Article 240 paragraph (1) and Article 258 paragraph (1) of the Election Law, Monday (9/11/2023). Photo by Humas MK/Fauzan.

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JAKARTA (MKRI) — The lack of term limit for candidates for the House of Representatives (DPR), the Regional Representatives Council (DPD), as well as the Provincial and Regency/City Legislative Council (DPRD) in Law No. 7 of 2017 on General Elections (Election Law) was challenged at the Constitutional Court (MK). The case No. 98/PUU-XXI/2023, was filed by university student Andi Redani Suryanata, who challenges Article 240 paragraph (1) and Article 258 paragraph (1) of the Election Law. He argues that articles regulate the requirements for DPR, DRPD, and DPD candidates and the provisions for DPD candidate registration through the Provincial KPU.

On Monday, September 11, 2023 in one of the Court’s panel courtrooms, Constitutional Justices Wahiduddin Adams (panel chair) and Enny Nurbaningsih, and Deputy Chief Justice Saldi Isra presided over the hearing. The Petitioner’s legal counsel M. Hafidh Al Zikri conveyed that Article 240 paragraph (1) and Article 258 paragraph (1) of the Election Law must be interpreted that the term limit of members of the DPR, DPD, and DPRD is as important as that of the president/vice president.

Hafidh argued that as Indonesia is a state of law based on Article 1 paragraph (3) of the 1945 Constitution, its state apparatuses, policies, and residents must behave in accordance with the law. The law exists to regulate and to prevent arbitrariness and power abuse by both state apparatuses and the population so that state leaders can exercise their power based on statutory laws.

“DPR, DPD, and DPRD must also follow the rules and principles of statutory laws. This must also be applied in regulating the term limit of members of DPR, DPD, and DPRD. A leader in a broad sense is someone who leads by initiating social behavior by regulating, directing, organizing, controlling the behavior of others through prestige, power, or position,” he explained.

He asserted that the low quality, integrity, and competence have allowed corruption, collusion, and nepotism (KKN) by the legislative state institutions because Article 240 paragraph (1) and Article 258 paragraph (1) of the Election Law do not include term limit in the requirements for candidates for DPR, DPD, and DPRD members.  Based on the argument, he added, both articles must state explicitly that the requirements for the election of candidates for members of the DPR, DPD, and DPRD include a term limit, which is two terms for the same position.

Another counsel, Henna Hanjaya, said that the term limit in Article 240 paragraph (1) and Article 258 paragraph (1) of Law No. 7 of 2017 on General Elections is contrary to the principle of equality and fair opportunities to participate as candidates for members of the DPR, DPD, and DPRD as guaranteed under Article 22E paragraph (1) of the 1945 Constitution.

The Petitioner argues that a term limit is important because of the current state of state institutions. Currently there is little guarantee of development and welfare improvement due to, among others, lack of innovation by state institutions. He cited Giovanni Sartori’s view that the problem with the presidential system lies not in the executive, but the legislative. The challenged provisions are the legal basis for the holding of elections, which exercises popular sovereignty, because elections are intended as a means of filling political positions, such as the legislative leadership consisting of the DPR, DPD, and DPRD. As such, elections must be carried out through certain mechanisms and procedures and by qualified organizers.

For this reason, the Petitioner requests that the Court declare Article 240 paragraph (1) and Article 258 paragraph (1) of the Election Law unconstitutional and not legally binding if not interpreted as “Candidates for members of the DPR, DPD, and DPRD shall only serve a maximum of two terms and afterwards cannot be re-elected for the same position.”

Justices’ Advice

Responding to the petition, Constitutional Justice Enny Nurbaningsih asked the Petitioner to read the Constitutional Court Regulation (PMK) No. 2 of 2021 on the procedural law for judicial review. She also advised him to observe his argument of constitutional loss.

“[The Petitioner must explain] the rights given by the Constitution and whether those rights are indeed harmed by the enactment of the two articles. Please carefully analyze that and think about whether Articles 182 and 240 on the requirements for DPR, DPD, and DPRD candidates are detrimental to the Petitioner. Try to consider whether there is indeed a loss,” she said.

Similarly, Deputy Chief Justice Saldi Isra asked the Petitioner to explain his constitutional loss due to the enactment of the two articles, especially related to the right to vote and be elected.

“If you do not lose your constitutional right because of these articles, it means there is no constitutional loss. For example, the two articles [cause you to] lose the right to be nominated. However, you do not lose the right to vote; there is no loss. You are to explain that there is a constitutional loss. For example, that the opportunity to be elected is reduced,” he explained.

At the end of the hearing, the panel announced that the Petitioner had 14 workdays to revise the petition and submit it no later than Monday, September 25 to the Registrar’s Office. 

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : Tahlitha Laela/Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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