Petitioner Sefriths Eduard Dener Nau and legal counsel Hendriyanus Rudyanto Tonubessi at the ruling hearing of the material judicial review No. 23 of 2014 on Regional Governments, Tuesday (10/31/2023). Photo by MKRI/Ifa.

---

JAKARTA (MKRI) — The Constitutional Court (MK) granted the material judicial review petition of Article 193 paragraph (2) letter i of Law No. 23 of 2014 on Regional Governments as amended by Law No. 9 of 2015 on the Second Amendment to Law No. 23 of 2014 on Regional Governments (UU Pemda) on Tuesday, October 31, 2023. The petition was filed by three Regional Legislative Council (DPRD) members: South Timor Tengah DPRD member Sefriths Eduard Dener Nau, Mataram City DPRD member Misban Ratmaji, and Kampar Regency DPRD member Kardinal.

“[The Court] grants the Petitioners’ petition in part,” said Chief Justice Anwar Usman reading the verdict for Decision No. 88/PUU-XXI/2023 alongside the other eight constitutional justices.

In its ruling, the Court holds that Article 193 paragraph (2) letter i of the Regional Government Law is unconstitutional and not legally binding insofar as it is not interpreted to mean “except for regency/city DPRD members if ... a. The political party that nominated the member is no longer a participant in the election or the management of the political party no longer exists. b. The regency/city DPR/DPRD member is not dismissed or not withdrawn by the political party that nominated them. c. There is no longer a replacement candidate listed in the permanent candidate list of the party that nominated them.”

Delivering the Court’s legal opinion, Deputy Chief Justice Saldi said that because of Article 193 paragraph (2) letter i of Law No. 23 of 2014, the Petitioners had to step down from their position as members of the regency/city DPRD, thus causing legal uncertainty and injustice and preventing their right to obtain equal opportunity in government. These were contrary to Article 280 paragraphs (1) and (3) of the 1945 Constitution.

Normatively, Article 193 paragraph (1) of Law No. 23 of 2014 reads, “Members of the regency/city DPRD shall temporarily be dismissed for reasons of: … a. death, b. resignation, or c. dismissal.” Meanwhile paragraph (2) reads, “Members of the regency/city DPRD shall temporarily be dismissed because: … i. become a member of another political party.”

The recall of DPRD members are also regulated in Law No. 2 of 2008 on Political Parties and Law No. 17 of 2014 on the People’s Consultative Assembly, House of Representatives, Regional Representatives Council, and Regional Legislative Council. In relation to this, Article 16 paragraph (1) of Law No. 2 of 2008 states that a member of a political party is dismissed from the political party if c. he/she becomes a member of another political party.

In its opinion, the Court also stated that Article 16 paragraph (3) of Law No. 2 of 2008 on Political Parties as amended by Law No. 2 of 2011 on the Amendment to Law No. 2 of 2008 on Political Parties is not legally binding insofar as it is not interpreted as “except for DPRD members if ... a. The political party that nominated the member is no longer a participant in the election or the management of the political party no longer exists. b. The DPR/DPRD member is not dismissed or not withdrawn by the political party that nominated them. c. There is no longer a replacement candidate listed in the permanent candidate list of the party that nominated them.”

According to the Court, the constitutional issue of the dismissal of DPRD members and a political party member switching to another party by a current member of the legislatures have been considered and outlined in the Constitutional Court Decision No. 39/PUU-XI/2013.

Thus, Article 193 paragraph (2) letter i of Law No. 23 of 2014 must also be interpreted conditionally as it was in the Constitutional Court Decision No. 39/PUU-X/2013 only insofar as it relates to the membership status of the regency/city DPRD. The Court continues to follow the ruling of Decision No. 39 PUU-X/2013 because the substance or material regulated in Article 193 paragraph (2) letter i of No. 23 of 2014 petitioned by the Petitioners is substantially the same that of Article 16 paragraph (3) of Law No. 2 of 2008.

Also read:

DPRD Members of a Party Failing Verification File a Petition

Three DPRD Members Clarify Petitum on Interim Substitution after Party Switch

Article 193 paragraph (2) letter i of the Regional Government Law reads, “Members of the regency/city DPRD shall temporarily be dismissed because: … i. become a member of another political party.” The Petitioners believe the a quo article is in violation of Article 27 paragraph (1), Article 28D paragraphs (1) and (3), and Article 28I paragraph (2) of the 1945 Constitution.

At the preliminary hearing on Thursday, August 31 in the plenary courtroom, legal counsel Hendriyanus Rudyanto Tonubessi said the Petitioners are legislative members elected as legislative members in the 2019 Election and serve until 2024. They would like to run in the upcoming 2014 Election, but their party—the Justice and Unity Party (PKP)—did not pass the verification required by Article 173 of the Election Law.

The only thing left to do was to join another party that passed the verification. Based on the Decree of the Ministry of Home Affairs (SE Mendagri) No. 100.2.1.4/4367/OTDA issued based on the a quo article, the Petitioners must be dismissed for switching party to be able to run in the next election.

Therefore, in their petition, the Petitioners asked the Court to declare Article 193 paragraph (2) letter i of the Regional Government Law unconstitutional and not legally binding as long as it is not interpreted as “except for DPRD members if ... a. The political party that nominated the member is no longer a participant in the election or the management of the political party no longer exists. b. The DPR/DPRD member is not dismissed or not withdrawn by the political party that nominated them. c. There is no longer a replacement candidate listed in the permanent candidate list of the party that nominated them.”

Author       : Sri Pujianti
Editor        : Nur R.
PR             : Muhammad Halim
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.

---