Chief Justice Suhartoyo reading out Decision No. 134/PUU-XX/2023 on the Election Law at a ruling hearing, Thursday (12/21/2023). Photo by MKRI/Bayu.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Article 12 letter I and Article 93 letter m of Law No. 7 of 2017 on General Elections (Election Law) and their elucidation filed by twelve university students—Josua A.F. Silaen, Rolis Barson Sembiring, Sheehan Ghazwa, Bima Saputra, Michael Purnomo, Marvella Nursyah Putri, Ahmad Ghiffaru Rizqul Haqq, Muhammad Nugroho Suryo Utomo, Fathor Rahman, Agusta Richi Fugarsyah, Bagus Septyan Fajar, and Nobval Fahrizal Gunawan.
“[The Court] rejects the Petitioners’ petition entirely,” Chief Justice Suhartoyo delivered Decision No. 134/PUU-XX/2023 at a ruling hearing on Thursday, December 21, 2023 alongside the other eight constitutional justices.
Previously, the Petitioners argued that Article 12 letter l and Article 93 letter m of the Election Law and their elucidations were contrary to Article 22E paragraph (1), (5), and (6); Article 28D paragraph (1); Article 28F; and Article 28G paragraph (1) of the 1945 Constitution. They believe that as election organizers, including the election of presidential and vice-presidential candidates, the General Elections Commission (KPU) and the Election Supervisory Agency (Bawaslu) have a strategic role in determining the future of the nation. Therefore, the KPU and Bawaslu need to be granted the authority to conduct special inquiry on the track records of presidential and vice-presidential candidates who have been registered and verified, which include their physical, mental, and psychological health records; record of criminal acts of corruption money laundering, human rights violations, abduction of activists, forced disappearances; and so on. The results of the special inquiry should be announced to the public no later than the last day of campaign period.
KPU and Bawaslu’s Duties
In its legal considerations, the Constitutional Court emphasized that structurally, Article 12 letter I and Article 93 letter m of the Election Law were formed to allow for additional duties that can be regulated in accordance with statutory provisions. In other words, they were intentionally formulated openly, so that the duties of the KPU and Bawaslu remain dynamic, so that they can follow current needs and developments.
“This is consistent with the provisions governing the authority and obligations of the KPU (vide Article 13 letter I and Article 14 letter n of Law No. 7 of 2017) and the authority and obligations of Bawaslu. However, the addition of the duties of the KPU and Bawaslu should not be done by changing or adding norms to Article 12 letter I and Article 93 letter m of Law No. 7 of 2017, which the Petitioners requested, because this not only could potentially lead to unclear norms, but also to loss of legal basis for other duties of the KPU and Bawaslu, which are dynamic in nature,” said Constitutional Justice Guntur Hamzah when reading out the Court’s legal considerations.
In addition, continued Justice Guntur, changing Article 12 letter I and Article 93 letter m of the Election Law as requested by the Petitioners would actually narrow the meaning of the a quo articles, and could lead to legal uncertainty. Moreover, the interpretation they requested would create overlapping duties for the KPU and Bawaslu, because they expected the KPU and Bawaslu to carry out the same duties in organizing general elections. This would actually create a conflict of norms, because although the KPU and Bawaslu are both election organizing institutions (Article 1 paragraph 7 of Law No. 7 of 2017), they have different duties and functions. The KPU as an election organizer is tasked with carrying out elections, while Bawaslu is tasked with supervising the implementation of elections (vide Article 1 point 8 and Article 1 point 17 of Law No. 7 of 2017).
No Constitutional Reason
With regard to the scope, purpose, and structure of the a quo articles, Justice Guntur explained that the Court believed there was no constitutional reason for changing or reinterpreting them other than as formulated in Article 12 letter I and Article 93 letter m of the Election Law, that is, “carrying out other duties in accordance with the provisions of laws and regulations.” Even if it is to provide consideration to voters with accurate and official data/information to better understand their voting rights in the presidential election, it is also inappropriate because the real issue does not lie in the a quo norm, but rather in the implementation or enforcement of the requirements that must be met by a presidential candidate as stipulated in Article 169 of Law No. 7 of 2017, not regulations related to the duties of the KPU and Bawaslu in the norms the Petitioners challenged.
“Therefore, based on the legal considerations, the Court is of the opinion that it is irrelevant to state that the provisions of Article 12 letter I and Article 93 letter m of Law No. 7 of 2017 have violated the principles of direct, public, free, confidential, honest, and fair general elections. This means that the a quo norms are not contrary to the principles of general elections as referred to in Article 22E paragraph (1) of the 1945 Constitution,” he explained.
Also read:
Students Request KPU, Bawaslu Be Authorized to Assess Presidential Tickets’ Eligibility
Court Continues with Revision Hearing for Provisions on KPU, Bawaslu Authority
Candidate Pairs’ Track Record
Justice Guntur continued that the Petitioners’ argument related to the track records of candidate pairs that had been registered and verified by the KPU, that is, medical records (physical, mental, and psychological health); records of criminal acts of corruption money laundering, human rights violations, abduction of activists, forced disappearances; and records of other serious crimes as well as their career, work history, and achievements.
According to the Court, although the petitum did not clearly explain what “candidate pair” was meant by the Petitioners, based on the arguments presented in the petition, the Court understood that the Petitioners were referring to the presidential and vice-presidential candidate pairs. If that was the case, the Court did not deny the importance of presidential and vice-presidential candidates who will contest in the general election, not only in terms of meeting all the requirements stipulated in the 1945 Constitution and legislation but also in terms of having a good or non-alarming track record concerning physical, mental, psychological health, criminal offenses, human rights violations, and career records. However, this does not mean that the task of researching and announcing such track records can be formulated as the responsibilities of the KPU and Bawaslu under Article 12 letter I and Article 93 letter m of Law No. 7 of 2017, as the Petitioners requested.
“With regard to this matter, the Petitioners’ question of the potential for the elected president and vice president to have a bad track record, this is an issue related to the norms of the articles regulating the requirements for presidential and vice-presidential candidates, which are stated in Article 6 of the 1945 Constitution and the provisions in the laws that are implemented based on Article 6 paragraph (2) of the 1945 Constitution. When examined, the requirements that the Petitioners connected to track records as argued in the petition have essentially been covered in the regulation of these requirements. With regard to several matters related to the additional requirements for presidential and vice-presidential candidates, the Court had explained it in the legal considerations of Decision No. 102/PUU-XXI/2023, which was pronounced at a hearing that was open to the public on October 23, 2023,” he said.
Therefore, based on those considerations, according to the Court, the conditions stipulated in Article 169 of the Election Law have been able to provide a general description of how presidential candidates are expected to be elected president and vice president, and what kind of presidential candidates should be avoided or not allowed to become president and vice president of the Republic of Indonesia. Therefore, according to the Court, if the petitum in the Petitioners’ petition was applied or formulated explicitly, quod non, it has been summarized in Article 169 of the Election Law. Therefore, the absence of provisions regarding the duties of the KPU and Bawaslu in examining and announcing the track records of president and vice-presidential candidates in of Article 12 letter I and Article 93 letter m of the Election Law explicitly cannot be said to have violated the constitutional rights of citizens to obtain information in developing their personal and social environment and the right to obtain information by using all types of available channels as guaranteed by Article 28F of the 1945 Constitution. Thus, the Petitioners’ argument that Article 12 letter I and Article 93 letter m of the Election Law were conditionally unconstitutional to Article 28F of the 1945 Constitution was legally unreasonable.
Considering the legal considerations above, although there was no constitutionality issue in Article 12 letter I and Article 93 letter m of the Election Law, the Court understood the importance of president and vice-presidential candidates who have good track records. The issues raised by the Petitioners regarding these track records were not unimportant. President and vice president are strategic positions that will lead the nation and state to achieve aspired goals as stated in the Preamble to the 1945 Constitution. Therefore, it is important for the people to know their track records as referred to in Article 169 letters d, e, j, and p of Law No. 7 of 2017 as long as they are not exempted information in accordance with the provisions of laws and regulations.
Based on the all legal considerations above, it is evident that the provisions of Article 12 letter I and Article 93 letter m of Law No. 7 of 2017 are not against to Article 22E paragraph (1) and Article 28F of the 1945 Constitution. Thus, the Petitioner2’ subject matter was declared legally unreasonable in its entirety.
Author : Utami Argawati
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.
Thursday, December 21, 2023 | 16:36 WIB 85