Jonatan Ferdy petitioning Law No. 7 of 2017 on General Elections, Thursday (11/9/2023). Photo by MKRI/Fauzan.

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JAKARTA (MKRI) — Law No. 7 of 2017 on General Elections (Election Law) is being challenged again to the Constitutional Court (MK). This time, the prohibition of not voting (abstain) in elections as stipulated in Article 515 was questioned by Jonatan Ferdy. The preliminary hearing for For petition No. 142/PUU-XXI/2023 was held on Thursday, November 9, 2023, presided over by Deputy Chief Justice Saldi Isra and Constitutional Justices Suhartoyo and Daniel Yusmic P. Foekh.

The a quo article reads, “A person who, during voting, deliberately promises to give a voter money, gifts, or other incentive to not vote or to vote a certain way or to cast an invalid vote is criminally punishable with maximum imprisonment of 3 (three) years and a maximum fine of Rp 36,000,000.00 (thirty-six million rupiah).”

At the hearing, Jonatan, who was present without a legal counsel, said that the criminalization of incitement to abstain or not vote in election was no longer relevant. He believes the article has caused harm to the community.

“The prohibition of inciting citizens to abstain from voting [in election] is no longer relevant. This is because it actually damages the image of democracy in the rule of law that has been built. In addition, from the community’s perspective, it actually kills the attitude of democracy and free speech in public,” he explained.

Furthermore, in one of his arguments, the Petitioner asserted that many people who are apathetic towards politics no longer care or find out the meaning of the abstinent group and the risks caused by its implementation of the provision. He emphasized that the incitement to abstain in election is the right of every citizen, because every citizen has the right to express their thoughts, in accordance with the provisions of statutory laws and regulations.

He explained that election coverage in the press or on social media has not made everyone aware of the exact date of the 2024 General Election. Ahead of the 2019 General Election, the Indonesian Survey Agency (LSI) held a survey a month before the voting day, whose results showed that most people had not known the exact date of the General Election.

He also argued that people with disabilities have the same rights as other Indonesian citizens to vote on election day. Unfortunately, their limitations often prevent them from voting. For example, there has been no assistance to polling stations nor special ballots for diffables. He also asserted that the rights of association and assembly, of expressing thoughts orally and in writing, should be protected in accordance with the mandate of the Constitution and are is the right of every citizen and not an obligation that must be protected by the Ministry of Law and Human Rights.

For this reason, the Petitioner hoped that the Constitutional Court would declare Article 515 of Law No. 7 of 2017 unconstitutional and not legally binding insofar as it is interpreted as currently written in the Election Law.

Justices’ Advice

Responding to the petition, Constitutional Justice Suhartoyo advised the Petitioner to read the Constitutional Court Regulation on the procedure of judicial review.  He said that in the description of constitutional losses must be clear. “You should see the Constitutional Court’s decisions. Then for legal standing, you must describe the presumed constitutional loss. It is described that [you] are a third child and have two biological brothers. What is the context? In your perspective, there is a constitutional loss. It must be clear whether you have the right to vote and whether this interferes with other constitutional rights related to the electoral system. So, you must be clear in describing the constitutional loss that is being harmed,” he advised.

Meanwhile, Deputy Chief Justice Saldi Isra asked the Petitioner to explain the loss of his constitutional rights due to the enforcement of this the norm. “If there is no explanation, you can be considered to not have legal standing. Then, which article in the Constitution is used as a reference to explain the loss of constitutional rights?” he said.

He added that the Petitioner had not provided an accurate explanation why the article being challenged is contrary to the 1945 Constitution. “There is no explanation, even though it will be reviewed later by the Court whether it turns out to be contrary to the 1945 Constitution. So, find why Article 515 is unconstitutional,” Justice Saldi said.

Before adjourning the hearing, Deputy Chief Justice Saldi Isra informed the Petitioner that he would have 14 workdays to revise his petition and to submit it to the Registrar’s Office no later than Wednesday, November 22, 2023 at 09:00 WIB.

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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