The Petitioners’ legal counsel Muhamad Raziv Barokah at the hearing for Case No. 145/PUU-XXI/2023 on the Election Law, Monday (12/11/2023). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — Constitutional law expert Denny Indrayana has requested the Constitutional Court (MK) to postpone the enforcement of the minimum age requirement for presidential and vice-presidential candidates, which had previously been decided by the Constitutional Court in Decision No. 90/PUU-XXI/2023. He requested this in the provisional petitum for case No. 145/PUU-XXI/2023 on the formal judicial review of Article 169 letter q of Law No. 7 of 2017 on General Elections (Election Law)

“The decision should not apply since it was read, why is that? Because that is what we feel is important, one of the objectives of this petition is to restore the morality of our constitutionality,” said Denny, who is also a Democratic Party politician, at the petition revision hearing that he participated in online on Monday, December 11, 2023.

The ex-deputy minister of Law and Human Rights believes the enforcement of the minimum age requirement for presidential and vice-presidential candidates as decided by the Court in Decision No. 90/PUU-XXI/2023 is problematic because there are candidates who actually did not meet the requirements but qualified as participants in the 2024 presidential election (pilpres) after the decision.

In addition, he asked the Court to suspend actions or policies related to Article 169 letter q of the Election Law. Additionally, he urged the Court to examine the petition quickly without any request for testimonies from the People’s Consultative Assembly (MPR), the Regional Representative Council (DPR), the President, the Regional Representative Council (DPD), or other relevant parties.

In the subject matter, the Petitioners urged the Court to declare the formation of Article 169 letter q of the Election Law not meeting the formal requirements under Law No. 48 of 2009 on Judicial Power and unconstitutional and not legally binding. They also asked the Court to order election organizers to drop the election participant who registered based on Article 169 letter q of the Election Law because it has been declared to have no binding legal force or to set a special additional agenda for affected election participants to submit replacement candidates in order to implement this decision without delaying 2024 election.

Besides Denny, the other petitioner in this case is constitutional law expert from Gadjah Mada University (UGM) Zainal Arifin Mochtar. According to both of them, the Court has two legislative functions: as negative and positive legislature. The Court acts as a negative legislature when it declares a norm in a law unconstitutional.

Whereas, it acts as a positive legislature when it declares a norm constitutional or by declaring it unconstitutional by creating a new norm. Usually this is done by interpreting certain articles in the law.

Also read: Constitutional Law Experts Formally Challenge Presidential Tickets’ Age Limit

The Petitioners legal counsel Muhamad Raziv Barokah said that the petition is very unique because it requests the formal judicial review of a legal norm that has been interpreted by the Court. Its legal concept is also unusual.

In addition, Raziv said, one thing that must be seriously explored is how the Court places itself in the concept of judicial activism vs judicial restraint. Judicial restraint means the Court’s desire to be more restrained and only enforce existing laws, while judicial activism is the Court’s desire to be more active, including by entering into a broader realm in order to uphold law and justice.

“We quote Article 24 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution, Your Honor, that the authority of the judiciary is not only to enforce the law, but also to uphold law and justice. Likewise, in Article 28D guaranteed not only the legal rights of Indonesian people, but also their fair legal rights,” he said.

Author       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : Najwa Afifah Lukman/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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