Legal counsels Mursid Mudiantoro and A. Sjamsul Ardiansyah explaining the subject matters at the judicial review hearing of the Election Law, Wednesday (11/29/2023). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The age requirement for presidential and vice-presidential candidates is challenged once again to the Constitutional Court (MK). The petition was filed by Heri Purwanto and Bambang Barata Aji. The preliminary hearing for case No. 146/PUU-XXI/2023 took place on Wednesday, November 29, 2023.

The Petitioners challenge Article 169 letter q of Law No. 7 of 2017 on General Elections (Election Law) as interpreted in Decision No. 90/PUU-XXI/2023 on the age limit of presidential and vice-presidential candidates.

The Petitioners are self-employed Indonesian citizens (WNI). They highlighted the concurring opinions of two justices in said decision, i.e. Constitutional Justices Daniel Yusmic P Foekh and Enny Nurbaningsih.

“When compared to the verdict, the concurring opinions are unsynchronized. In our opinion [as stated in] in our petition, Professor Enny’s concurring opinion can actually be categorized as a dissent,” said legal counsel Mursid Mudiantoro.

Mursid explained that the concurring opinions were fundamentally different from the verdict. The former emphasized the minimum age requirement of 40 years or having been or is currently a governor, whereas the verdict focuses on having been or is currently occupying an office elected through the general or regional election.

The Petitioners assert that the concurring opinion limited the requirement to governors. Meanwhile, the verdict extends it to legislative and executive election, in this case, regional election. When linked to the issue of presidential threshold, instead of being erga omnes, the a quo decision shows partiality to certain legal subjects.

“The formulation of the a quo decision where the two justices’ concurring opinions are not included in the dissenting has violated Article 28D paragraph (1) of the 1945 Constitution. In this regard, the basic principle of realizing justice based on the One Supreme God, which is intended for fair legal certainty, does not work as set forth in the Constitution,” Mursid said.

In their petitum, the Petitioners request the Court to declare the phrase “at least 40 (forty) years of age” in Article 169 letter q of the Election Law as interpreted in Decision No. 90/PUU-XXI/2023 unconstitutional and to declare the a quo decision executorial.

Strengthening Legal Standing

In response, Constitutional Justice Arief Hidayat advised the Petitioners to strengthen their legal standing and constitutional loss due to Article 169 letter q of the Election Law as interpreted in Decision No. 90/PUU-XXI/2023.

“What are the Petitioners as legal subjects? Individuals or legal entities. If they are individuals, [the petition] relates to what is being challenged, what the loss is, which is caused by this article. That must be mentioned and strengthened,” he said.

In Decision No. 90/PUU-XXI/2023, three justices delivered dissenting opinions while two delivered concurring opinions. Three justices—Deputy Chief justice Saldi Isra, Constitutional Justices Arief Hidayat and Wahiduddin Adams—have different opinions. All three believed the Court should reject the petition.

Meanwhile, Constitutional Justices Enny Nurbaningsih and Daniel Yusmic P Foekh, who delivered concurring opinions, believed the petition should be granted on the condition that the candidates have experience as a governor, the requirements of which are determined by the legislatures.

Justice Enny explained, relating to Decisions No. 29/PUU-XXI/2023, 51/PUU-XXI/2023, and 55/PUU-XXI/2023, which the Court rejected although in cases No. 51/PUU-XXI/2023 and 55/PUU-XXI/2023 the petitioners argue about experience as state administrators, there are regional heads. In the legal considerations for Decision No. 51/PUU-XXI/2023, which mutatis mutandis applies to Decision No. 55/PUU-XXI/2023, the petition basically did not clearly outline at what limit experience as state organizers is said to be equivalent to the position of president or vice president. Meanwhile, the reason for the difference in the a quo petition is because the Petitioner’s argument has outlined the connection to experience as a regional head at both the provincial and regency/city levels, but in accordance with levels in the administration of government affairs, in this context the governor as the head of an autonomous region and also the representative of the central government, it is relevant to qualify them alongside higher levels of organizers of government affairs.

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Andhini S.F.
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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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