Presidential Tickets at Least 40 Years Old or Elected Officials

Chief Justice Anwar Usman reading out the verdict of the material judicial review of the minimum age limit for presidential tickets, Monday (10/16/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The debate on the minimum age limit for presidential and vice-presidential candidates ended with a ruling on the judicial review petition No. 90/PUU-XXI/2023 by law student of University of Surakarta Almas Tsaqibbirru. In its ruling, the Court granted part of the petition, which challenged Article 169 letter q of Law No. 7 of 2017 on General Elections (Election Law).

“[The Court] grants the Petitioner’s petition in part; declares Article 169 letter q of Law No. 7 of 2017 on General Elections that reads ‘at least 40 (forty) years of age’ in violation of the 1945 Constitution and not legally binding if not interpreted as ‘at least 40 (forty) years of age or has occupied/is occupying an office elected through a general election, including the election of heads of regions,’” said Chief Justice Anwar Usman reading out the verdict on Monday, October 16, 2023 in the plenary courtroom.

In its legal opinion, read out by Constitutional Justice M. Guntur Hamzah, the Court held that the filling of public vacancy in casu president and vice president must involve quality, experienced candidates. For the implementation and supervision of national policies, there are public offices use minimum age limits are 40 years old (president and vice president) and under 40 filled through election, such as governor at 30, regent and mayor at 25, as well as members of the DPR (House of Representatives), DPD (Regional Representatives Council), and Regional Legislative Council (DPRD) at 21. However, in relation to the offices of the president and vice president, although they are also elected, because their age is part of the constitutional review being requested, according to logical reasoning, it is irrelevant to connect these offices only to the requirements for presidential and vice-presidential candidates.

“It means that the president and vice president elected through an election have met the age requirement for the offices of the president and vice president. For realizing participation and quality and experienced candidates, the Court holds that state officials who have experience as members of DPR, DPD, and DPRD, governors, regents, and mayors are actually eligible to participate in the national leadership contestation in casu as presidential and vice-presidential candidates in a general election despite being under 40 years of age,” Justice Guntur stated.

These public offices, he added, are the results of an election based on the will of the people and were elected democratically. The restriction of a minimum age of 40 years of age not only restrict the young generation from entering the national leadership contestation, but also could potentially reduce the opportunity of millennials.

“This means that those under 40, if they have been or are currently elected officials, they should be able to participate in the presidential and vice-presidential candidacy. These offices are elected, and so according to logical reasoning, present or past elected officials have been tried and tested and are proven to have received the people’s trust and legitimacy, so the figures/individuals in question are expected to be able to carry out their duties as public officials in casu president or vice president,” Justice Guntur explained.

Experience in Public Office

Justice Guntur added that even if one is under 40 years of age but has an experience being an elected official, they would not necessarily become president and/or vice president since there are two more constitutional requirements that they must meet: endorsement by political party or party coalition and direct election by the people. As such, one who has experience as a public official but no endorsement by political party or party coalition cannot become a presidential and/or vice-presidential candidate. If they have met those two requirements, the must meet the next: being part of a presidential and vice-presidential candidate directly elected by the people, as set forth in Article 6A paragraph (1) of the 1945 Constitution. Therefore, presidential tickets who are 40 or over can be endorsed.

“Meanwhile, presidential tickets under 40 years of age can be nominated as presidential and/or vice-presidential candidates as long as they have an experience of being or is currently an official elected through an election in casu members of DPR, DPD, and DPRD, governors, regents, and mayors but are not appointed officials such as interim or acting officials can be nominated as presidential and vice-presidential candidates through the requirement of the age of 40,” he continued.

Two Entries

Justice Guntur added that the Court held that the alternative requirement of having been or currently being an elected official for presidential tickets under 40 would not harm presidential tickets aged over 40 because the age requirement must be based on the principle of giving opportunity and abolishing restriction that is rational, fair, and accountable. As such, it is important that the Court ensure the presidential election be direct, public, free, confidential, honest, and fair without the restriction of the minimum age of 40.

“Therefore, there are two ‘entries’ in terms of age requirement in Article 169 letter q of Law No. 7 of 2017, i.e. being 40 years of age or having been an elected official. The fulfillment of either of the two requirements is valid and constitutional. Then, the term ‘idu geni’ [Javanese, meaning words that have weight] that is often attributed to the Court’s decision as stated in the verdict and legal opinions of this decision. That is, through the a quo decision, the Court actually wants to state that in the a quo case, namely in relation to the presidential and vice-presidential election, the principle of providing opportunity and eliminating restriction must be applied by allowing for wider, fairer, more rational, and accountable contestation for the nation’s best [generations] including the millennial generation, and giving the weight of fair legal certainty in the framework of a living Constitution. Thus, if one of the two conditions is met, an Indonesian citizen must be deemed to have met the age requirement to be nominated as a presidential and vice-presidential candidate,” said the law professor of Hasanuddin University of Makassar.

He added that in relation to the Petitioner’s petition requesting the Court to interpret Article 169 letter q of the Election Law or the experience as a head of province or regency/city, the Court held that although the abovementioned Court’s legal considerations are in line with and can answer issues that the Petitioner challenged, the appropriate interpretation to realize the core of said legal considerations cannot necessarily be done by following the Petitioner’s request. Therefore, by considering the Petitioner’s petitum on the alternative choice of ex aequo et bono in the petitum and to ensure fair legal certainty, the Court held that the appropriate interpretation of the a quo norm is “at least 40 (forty) years of age or has been or is currently in an office elected through general election including regional head election.”

Therefore, Justice Guntur said, since the offices of head of province or regency/city are elected through an election, the a quo norm should read in full, “is at least 40 (forty) years of age or has been or is currently in an office elected through general election including regional head election.” Furthermore, Article 169 letter q of the Election Law as referred to in the a quo decision takes effect starting from the 2024 presidential and vice-presidential election onward. This is important for the Court to assert so that there would be no doubt on the implementation of the a quo article in determining the minimum age requirement for presidential and vice-presidential candidates as referred to in the a quo verdict.

For that reason, he explained, for the interpretation of Article 169 letter q of the Election Law, it is important that the Court emphasize that if two decisions on the same constitutional issue but with different petitums from previous decisions and result in different verdict, the latest decision takes precedence. This means that the a quo decision immediately disregards the previous decisions. This notion is in line with the principle lex posterior derogat legi priori. Consequently, the constitutional interpretation in the a quo decision disregards the decisions delivered prior on the same constitutional issue and the a quo decision shall be a new constitutional foundation for Article 169 letter q of the Election Law, which takes effect since this decision has been pronounced at a public hearing.

“Based on all the aforementioned legal considerations, Article 169 letter q of Law No. 7 of 2017 has clearly led to intolerable injustice. Therefore, the Court holds, [it] must be declared conditionally unconstitutional as long as it does not meet the interpretation to be referred to in the verdict of the a quo decision. As such, the Court’s interpretation does not grant the Petitioner’s petition in its entirety, so the Petitioner’s petition is legally warranted in part,” Justice Guntur stressed.

Dissenting Opinions

Three constitutional justices shared their dissents while two provided their concurring opinions. The three dissents came from Deputy Chief Justice Saldi Isra, Constitutional Justice Arief Hidayat, and Constitutional Justice Wahiduddin Adams. They believe the Court should have rejected the petition.

In the beginning of his dissent, Deputy Chief Justice Saldi called out the Decision No. 90-91/PUU-XXI/2023 extraordinarily strange and far beyond logical reasoning. The revealed that the Court had changed its stance in a short moment. In Decisions No. 29-51-55/PUUXXI/2023, he said, it had explicitly, straightforwardly, and unequivocally stated that the issue of age in Article 169 letter q of Law No. 7 of 2017 is the legislatures’ prerogative.

“In fact, whether we realize it or not, these three decisions have disallowed other actions other than those by the legislatures. Has the Court ever changed its stance? Yes, but never so quickly, where it occurred in a matter of days. Such a change did not merely overrule previous decisions, but was based on very strong arguments after finding important facts that had changed in society. The question is, what important facts have changed in society so that the Court changed its stance from Constitutional Court Decision No. 29-51-55/PUU-XXI/2023 with a ruling to reject [the petition] to one that grant [the petition] in the a quo Decision?” the law professor of Andalas University said.

He then went on to reveal the process and composition of the constitutional justices when ruling the case. Overall, the numerous petitions challenging the minimum age for presidential tickets in Article 169 letter q of the Election Law can be divided into two batches. Petitions No. 29-51-55/PUU-XXI/2023 were among the first batch, while petitions No. 90-91/PUU-XXI/2023 were among the second. Eight constitutional justices attended a justice deliberation meeting (RPH) on September 19, 2023, where Chief Justice Anwar Usman was absent. Six constitutional justices agreed to reject the petitions and to assert that Article 169 letter q of the Election Law was the legislatures’ open legal policy, just like they did in Decisions No. 29-51-55/PUU-XXI/2023. Meanwhile, two of the justices expressed their dissents.

At the next meeting, Justice Saldi said, some of those six justices showed sudden interest in the alternative model requested in the petitum for case No. 90/PUU-XXI/2023, which had been ruled as the legislatures’ open legal policy in Decisions No. 29-51-55/PUU-XXI/2023. He also revealed that the Petitioners in cases No. 90-91/PUU-XXI/2023 had once intended to withdraw their petitions and canceled their withdrawal request the day after, forcing the Court to convene in a panel hearing to ask for confirmation of the withdrawal request and its subsequent cancelation. Justice Saldi revealed that after the cancelation of the withdrawal, some of the constitutional justices, who in Decisions No. 29-51-55/PUU-XXI/2023 had asserted that the a quo article was an open legal policy, had changed their tune and took the final stance of granting part of the petition in case No. 90/PUU-XXI/2023.

He also highlighted the verdict for Decision No. 90/PUU-XXI/2023. Five constitutional justices who were for granting part of the petition were divided into two groups: three agreed to create an alternative for the minimum age of 40 i.e. “or having been/is currently an elected official including by a regional head election,” while two interpreted the petitum as limited only to “having been/is currently a governor.” In addition, these two constitutional justices maintained the principle of open legal policy in determining the criteria for the governorship. The five constitutional justices shared the same opinion on the elected official requirement being governor so, he argued, the verdict by these five constitutional justices should have been limited to the governor position. As such, the option of interpretation of Article 169 letter q of Law No. 7 of 2017 to “Requirements that must be fulfilled by a Presidential and Vice-Presidential candidate are as follows: q. at least 40 (forty) years of age or have been/is an elected official including by a regional head election” should have been rejected or dismissed by the meaning of “granting the petition in part.”

In addition, Justice Saldi stressed, the legislatures have explicitly shared intention similar to that of the Petitioner’s, so any change or addition to the requirements for presidential tickets must be made through legislative review or amendment to the Law being petitioned, not by delegating it to the Constitutional Court. He regretted that such a clear open legal policy be made into a political burden for the Court to decide.

“If such an approach to ruling is continuously taken, I am very, very, very anxious and worried that the Court is trapping itself in a political vortex in deciding various political questions that will ultimately undermine public trust in and legitimacy of the Court. Quo vadis Constitutional Court?” he emphasized.

Three Irregularities

Meanwhile, Constitutional Justice Arief Hidayat mentioned three irregularities he observed of the give decisions on the minimum age for presidential tickets (No. 29, 51, 55, 90, and 91/PUU-XXI/2023). First, the hearings were sparsely scheduled and took a long time. Second, how they were discussed in the justice deliberation meetings. Third, petitions No. 90 and 91/PUU-XXI/2023 were withdrawn but then continued.

After the petition revision hearing, the evidentiary hearings to hear the House’s (DPR) and the President’s testimonies were up to two months apart for case No. 51/PUU-XXI/2023 and one month apart for case No. 55/PUU-XXI/2023. Although this is not against good procedural law as regulated in laws on the Constitutional Court or in the Constitutional Court Regulation (PMK), such delay of justice could mean denial of justice (“justice delayed, justice denied).”

Justice Arief highlighted the fact that Chief Justice Anwar Usman were absent from the justice deliberation meeting for cases No. 29-51-55/PUU-XXI/2023 citing fear of conflict of interest, since a relative of his might be nominated as a presidential ticket in the 2024 Election by a political party. However, the chief justice attended the meeting for the same constitutional issue in cases No. 90-91/PUU-XXI/2023 and even decide to partially grant petition No. 90/PUU-XXI/2023.

“I believe this to be an act beyond logical reasoning. I questioned this act by the Chief Justice in the justice deliberation meeting. He confirmed at a meeting on Thursday, September 21, 2023 that his absence in the decision-making forum for cases No. 29-51-55/PUU-XXI/2023 was due health issue, not to avoid conflict of interest, which the Deputy Chief Justice mentioned at the previous meeting,” Justice Arief revealed.

Meanwhile, Constitutional Justice Wahiduddin Adams stressed that by granting the petition either partially or in full, the Court was legislating or governing from the bench without sufficient constitutional reasons within logical reasoning. Thus, the Court interfered one of the most fundamental dimension of good, constitutional legislative power, i.e. the parliament’s representation as one of the reflection and implementation of the principle of popular sovereignty as stipulated in Article 1 paragraph (2) of the 1945 Constitution.

Therefore, he explained, in examining, adjudicating, and ruling this case, the Court must (once more) convince the public and the Petitioner that sometimes judicial independence is reflected in the more difficult-to-exercise judicial restraint, since it is easier for humans to do something than to hold back from doing something. “Based on those arguments, I believe the Court should have rejected the Petitioner’s petition,” he said.

Constitutional Justice Suhartoyo also expressed a dissent. He argued that the Petitioner did not request the petitum not for himself and, thus, did not warrant legal standing to be a petitioner for the a quo petition. He asserted that the dissenting opinions for case No. 29/PUU-XXI/2023 and 51/PUU-XXI/2023, mutatis mutandis, are an inseparable part of the legal opinion in his dissent for the a quo petition.

Concurring Opinions

Constitutional Justices Enny Nurbaningsih and Daniel Yusmic P. Foekh expressed their concurring opinions. Both believed the petition should be granted on the condition of having been a governor, whose requirements are further determined by the legislatures. Justice Enny explained that the Court had rejected petitions No. 29-51-55/PUU-XXI/2023, with petitions 51-55/PUU-XXI/2023 questioning experience as state administrator. Head of regions are state administrators. In the Court’s legal opinion for case No. 51/PUU-XXI/2023, which applies mutatis mutandis for case No. 55/PUU-XXI/2023, the Petitioners’ petition did not elaborate clearly until what extent can a state administrator be equated with a president or vice president. Meanwhile, her concurring opinion in the a quo petition was based on the Petitioner’s request relating to the experience of being a head of region either at provincial or regency/city levels, but she argued that the head of as an autonomous region, the governor was closer to the central government for the election of such a higher-level state administrator.

“So, my reason does not negate my views as part of the majority in case No. 51/PUU-XXI/2023 and 55/PUU-XXI/2023. Therefore, I have a concurring opinion in granting part of the Petitioner’s petitum for ‘at least 40 (forty) years of age or having experience as a governor whose requirements are further determined by the legislatures,’” Justice Enny said.

At the same hearing, the Court had previously rejected three other petitions: No. 29/PUU-XXI/2023 by the Indonesian Solidarity Party (PSI) and four individual petitioners, No. 51/PUU-XXI/2023 by the Change Movement Party of Indonesia (Garuda Party), No. 55/PUU-XXI/2023 by Erman Safar and others. It had also declared two petitions inadmissible: No. 91/PUU-XXI/2023 by Arkaan Wahyu Re A and No. 92/PUU-XXI/2023 by Melisa Mylitiachristi Tarandung. It also approved the withdrawal of petition No. 105/PUU-XXI/2023 by Soefianto Soetono and Imam Hermanda.

Author       : Utami Argawati/L.A.P.
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : 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.

Monday, October 16, 2023 | 18:16 WIB 1241