Legal counsel Regio Alfala Rayandra at the ruling hearing for the material judicial review of Law No. 7 of 2017 Election, Thursday (2/29/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire petition No. 28/PUU-XXII/2024 on the material judicial review of in Article 348 paragraph (4) of Law No. 7 of 2017 on General Elections (Election Law). The provision on voting address change in that article has been declared constitutional.

“[The Court] rejects the Petitioners’ petition in its entirety,” said Chief Justice Suhartoyo at the ruling hearig on Thursday, February 29, 2024 in the plenary courtroom.

In its legal considerations, the Court asserted that electoral districts are the limit to the right to vote and be voted for election contestants. The Court asserted that Article 348 paragraph (4) of the Election Law is within reasonable limits, especially in relation to the open-list proportional election system, where voters can vote for legislative candidates who represent the electoral district’s aspirations and reflect direct relations between voters and candidates. The open-list proportional election system is closer to the system that the 1945 Constitution intended because it allows the people to directly vote for DPR/DPRD candidates.

The Court also affirmed its stance that voters who relocated, despite still remaining in the Republic of Indonesia, can no longer vote for legislative candidates since their representation is not in their original electoral district. If they were given the right to vote for legislative candidates outside their district, it would harm the purity of the district-based election, so that the representation cannot be accounted for.

However, this differs in the case of overseas voters. Although they are outside of the administrative territories of the Republic of Indonesia, they have the right to vote and the state has the obligation to provide facilities and infrastructure that supports their right to vote. Therefore, the Court declared Article 348 paragraph (4) of the Election Law not in violation of the principles of rule of law and popular sovereignty as well as the right to recognition, guarantees, protection, fair legal certainty, equal opportunity in government, and the fulfillment of human rights guaranteed in the 1945 Constitution and not as argued by the Petitioners. Thus, the Petitioners’ arguments were legally unreasonable in their entirety.

The Court also rejected the Petitioners’ provisional petitum that requested the Court to prioritize the case and make a ruling before the 2024 election on February 14 while following its procedural law. In its legal considerations, the Court asserted that the petition was only filed 19 days before voting day. If the provisional petitum was granted, it would hinder the election implementation designed by the KPU (General Elections Commission). Not to mention, the a quo case was ruled after the 2024 election. Therefore, the urgency for it to be ruled before the election was no longer relevant. As such, the Petitioners’ provisional petitum was legally groundless.

Constitutional Justice Arsul Sani had a dissenting opinion on the case. He observed that several Constitutional Court decisions had allowed for regulations that constitute open legal policies be revoke or limited through reinterpretation based on reasons that exceed the legislatures’ authority is an abuse of authority and clearly unconstitutional, violates morality, rationality, and intolerable injustice, and is contrary to political rights and popular sovereignty. Moreover, the Court had changed its stance on laws that were previously declared open legal policy to be unconstitutional, as in Decision No. 22/PUU-XV/2017.

Also read:

Labor Party Challenges Provision on Voting Address Change

Labor Party Revises Petition on Voting Address Change

The Labor Party and private employee Cecep Khaerul Anwar filed the petition No. 28/PUU-XXII/2024. Petitioner I asserted that he could experience specific and potential constitutional impairment which according to logical reasoning is inevitable due to the enforcement of Article 348 paragraph (4) letters a, c, d, and e of Law No. 7 of 2017. Their specific constitutional impairment is the loss of the right and opportunity to be elected as a contestant of the 2024 election.

Meanwhile, Petitioner II possibly cannot vote in his registered domicile due to economic and geographical limitations, since he cannot return to his hometown to vote. He alleges that Article 348 paragraph (4) of the Election Law has restricted the Petitioners’ right and opportunity to vote and be elected as it stipulates that relocating voters can only vote for the president and vice president and cannot vote for members of the DPR (House of Representatives), DPD (Regional Representatives Council), and provincial and regency/city DPRD (Regional Legislative Council).

The Petitioners also proposed a provisional petitum to urge the Court to prioritize the case and rule it before election day on February 14 while maintaining compliance to its procedural law. For those reasons, they requested that the Court accept and grant the petitums and declare Article 348 paragraph (4) of the Election Law conditionally unconstitutional and not legally binding.

Author       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : 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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