The preliminary hearing of another formal petition against Article 169 letter q of Law No. 7 of 2017 on General Elections, Tuesday (11/28/2023). Photo by MKRI/Bayu.
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the judicial review of Article 169 letter q of Law No. 7 of 2017 on General Elections (Election Law) on Tuesday, November 28, 2023. The Petitioners of case No. 145/PUU-XXI/2023, Universitas Gadjah Mada’s (UGM) constitutional law experts Denny Indrayana dan Zainal Arifin Mochtar, challenge the provisions relating to the minimum age requirements for presidential and vice-presidential candidates, which had previously been decided by the Constitutional Court in Decision No. 90/PUU-XXI/2023.
The Petitioners believe the age requirement of at least 40 years old or has occupied/is occupying an office elected through the election, including the regional election (pilkada) is contrary to Article 1 paragraphs (1) and (3), Article 24 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution.
In addition, they believe Article 169 letter q of the Election Law as interpreted in Decision No. 90/PUU-XXI/2023 does not meet the formal requirements because they are contrary to the 1945 Constitution as well as Article 17 paragraphs (5) and (6) of the Judicial Power Law. Article 17 paragraphs (5) and (6) of the Judicial Power Law states that basically every judge, including constitutional justices, must recuse themselves from hearing any case involving their family, otherwise the resulting decision will be invalid or does not meet the formal requirements.
“Article 169 letter q as interpreted in Decision No. 90, which His Excellency Justice Anwar Usman—who at that time was the uncle of Gibran Rakabuming Raka, son of President Joko Widodo—also attended. The relationship was established as a result of the person concerned being married to the president’s sister, Mrs. Idayati. And it has been proven that Decision No. 90/PUU-XXI/2023 was also used as a basis by Gibran Rakabuming Raka, nephew of His Excellency Justice Anwar Usman, to register as a candidate for vice president of the Republic of Indonesia in the 2024 election. His Excellency Justice Anwar Usman should have recused himself from the case,” said legal counsel Muhamad Raziv Barokah.
Raziv continued that when Justice Anwar Usman as involved in Decision No. 90/PUU-XXI/2023, the decision did not meet the formal requirements and became invalid. He believes if Justice Anwar had abided by the code ethics and the law by recusing himself, the decision would be different because the composition of the justices would be balanced.
Later on, Justice Anwar violated the code of ethics and was removed from his position as chief justice of the Constitutional Court by the Ethics Council of the Constitutional Court (MKMK). Raziv said that this could have been prevented if Denny Indrayana’s report to the MKMK on August 27, which requested investigation into Justice Anwar Usman’s participation in adjudicating cases with potential conflicts of interest, had been followed up immediately before the issuance of Decision No. 90/PUU-XXI/2023.
In their provision, the Petitioners requested that this case be examined quickly without any request for testimonies of the House of Representatives (DPR), President, and relevant parties in order to expedite the case so that it would not cause continuous chaos. They also requested that this case be examined, resolved, and decided without involving Justice Anwar Usman.
In the petitum, the Petitioners asked the Court to postpone the enforcement of Article 169 letter q of the Election Law as interpreted in Decision No. 90/PUU-XXI/2023. They also asked the Court to suspend actions or policies related to the provisions of the article.
Justices’ Advice
In his advice, Constitutional Justice Arief Hidayat said that the Petitioners could use a progressive legal approach rather than a legalistic formalistic one in the petition. They must be able to prove and convince the justices to reinterpret the provisions of the article being challenged.
“The legal standing, posita, and petitum must be considered by rewriting, or by—what I believe to be—thinking out of the box, thinking progressively using the exponential approach, the format, the justices may be invited to get out of the provisions or norms or approaches that are formalistic legalistic,” Justice Arief advised the Petitioners.
Meanwhile, Chief Justice Suhartoyo asked the Petitioners to provide comparative data of the Constitutional Court in other countries that had exercised authority related to the matter they challenge, i.e. examining articles that had previously been decided by the Court.
“Do other countries have similar jurisprudence where the Constitutional Court can withdraw [its decision on] formal review even though it relates to statutory norms that have been reviewed by the judiciary? Secondly, what can we refer to in this case so it can be included in the formal review cluster?” he asked.
At the end of the hearing, the justices informed the Petitioners that they would have 14 workdays to revise the petition and to submit it to the Court’s Registrar’s Office no later than Wednesday, December 6, 2023.
Author : Mimi Kartika
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.
Tuesday, November 28, 2023 | 14:14 WIB 89