Constitutional Justice Enny Nurbaningsih delivering the Court’s legal opinion at the ruling hearing of the material judicial review of the Party Law, Wednesday (3/20/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) dismissed a judicial review petition of the provisions on the temporary suspension of a political party as stipulated in Article 48 paragraphs (2) and (3) of Law No. 2 of 2008 on Political Parties as amended by Law No. 2 of 2011 on the Amendment to Law No. 2 of 2008 on Political Parties on Wednesday, March 20, 2024 in the plenary courtroom. The case No. 15/PUU-XXII/2024 was petitioned by Teja Maulana Hakim, a university student.

“[The Court] declares the Petitioner’s petition inadmissible,” said Chief Justice Suhartoyo delivering the verdict.

In its legal considerations, delivered by Constitutional Justice Enny Nurbaningsih, the Court stated that in asserting the Petitioner’s qualification relating to the formal requirement for judicial review as referred to in Article 51 paragraph (1) of the Constitutional Court Law, he had explained that he is an Indonesian citizen and a law student of the Batam International University (UIB). As proof, he had submitted a copy of his electronic resident identity card (e-KTP) [vide evicence P-3]. As such, the Court deemed he had met said formal requirement.

The Petitioner must also meet all five material requirements of constitutional injury. “Therefore, in a judicial review [case], a petitioner has the obligation to explain one by one the requirements, which can generally be categorized into two: elaboration of (i) constitutional rights and/or authority and (ii) presumed constitutional injury that the petitioner suffers or experiences. With regard to the first requirement, the Petitioner has explained the constitutional right that has allegedly been harmed due to the enforcement of the norm being petitioned, i.e. Article 28D paragraph (1), Article 28J paragraphs (1) and (2) of the 1945 Constitution,” Justice Enny read.

The Court believes Article 28D paragraph (1), which guarantees fair legal certainty for the Petitioner, is more relevant to the case. Meanwhile, Article 28J paragraphs (1) and (2) is more of a guideline in implementing protection of human rights by setting the obligation to respect others’ human rights, so it is more appropriate to be used as a basis in the posita, not for the Petitioner’s legal standing. “As such, the Court is of the opinion that the first element of the material requirements relating to the Petitioner’s legal standing has been fulfilled,” she stressed.

Justice Enny further explained that instead of explaining the impairment to the constitutional right to fair legal certainty as per Article 28D paragraph (1) of the 1945 Constitution, the Petitioner explained the ineffective selection process for public offices by political parties, thus leading to state administrators cum party members who were involved in corruption crimes.

“The Court is of the opinion that the Petitioner’s elaboration of his legal standing relating to the presumed loss of constitutional right did not have any causal relation to the enactment of Article 40 paragraph (2) letter b and Article 48 paragraphs (2) and (3) of Law No. 2 of 2008 since the Petitioner could not show that the relation between the injury is traceable from the article whose constitutionality was being challenged. The Court understands and appreciates the Petitioner’s good intent to ensure law supremacy in the Unitary State of the Republic of Indonesia based on Pancasila and the 1945 Constitution. However, the Petitioner must understand universal principles that apply in court, that is, point d’interet point d’action, or there is interest, there is a lawsuit,” she explained.

The Court did not find any causality between the Petitioner’s elaboration of ineffective selection process for public offices by political parties leading to corrupt state administrators cum party members and the enactment of the articles petitioned for review.

Not to mention, the Petitioner’s status as a law student is not convincing to assert specific and actual, or at least potential, constitutional injury that based on legal reasoning is inevitable due to the enforcement of the articles.

As such, even though the Petitioner met the requirement for a petitioner and had explained his constitutional right as guaranteed by the 1945 Constitution, he his constitutional injury was not enough to meet the cumulative requirements detailed in Constitutional Court Decisions No. 006/PUU-III/2005 and No. 11/PUU-V/2007, and subsequent decisions. Therefore, the Court declared, the Petitioner did not have the legal standing to act as a petitioner in the case.

“Because the Petitioner did not have legal standing to act as a petitioner, the subject matter was not considered,” Justice Enny said.

Dissenting Opinion

Constitutional Justices Suhartoyo, Saldi Isra, and Arsul Sani expressed a dissenting opinion. “In essence, the three justices are of the opinion that the Petitioner had legal standing to act as the a quo petitioner. Therefore, the Court should have considered the subject matter,” Chief Justice Suhartoyo delivering the dissent.

Also read:

University Student Challenges Provision on Political Party’s Temporary Suspension

Student Questioning Party Temporary Suspension Adds Touchstones

The Petitioner challenged Article 48 paragraphs (2) and (3) of the Party Law, which reads, “(2) Any violation of the provisions referred to in Article 40 paragraph (2) shall be subject to administrative sanctions in the form of temporary suspension of the Political Party concerned in accordance with its level by the district court for a maximum of 1 (one) year. (3) Political Parties that have been temporarily suspended as referred to in paragraph (2) and commits another violation to the provisions referred to in Article 40 paragraph (2) shall be dissolved by a decision of the Constitutional Court.”

He reasoned that political party disbandment through the Constitutional Court is limited. He also believes that Article 40 paragraph (2) of the Party Law does not explicitly mention party disbandment due to members who commit criminal acts of corruption while in public office. He also asserts that the word “and” in “Political Parties shall be prohibited from: a. conducting activities that are contrary to the 1945 Constitution and statutory laws and regulations; or” in Article 40 paragraph (2) of the Party Law has created issues, so the word “or” should be used instead. He believes the word “and” in the a quo norms is more appropriate to use for the petition for the disbandment, not temporary suspension, of political parties.

Therefore, in the petitum, the Petitioner requested that the Court declare 48 paragraph (2) of the Party Law unconstitutional and not legally binding while 48 paragraph (3) conditionally unconstitutional if not interpreted as “Political Parties that have committed violations of the provisions as referred to in Article 40 paragraph (2) shall be disbanded with a decision by the Constitutional Court.”

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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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