Chief Justice: Ex-Convict Served Five Year, Should Not Face Political Rights Revocation

KPU chairman Hasyim Asy’ari at a ruling hearing for the 2024 legislative election results dispute of West Sumatra Province, Monday (6/1/2024) on panel 1. Photo by MKRI/Ifa.

JAKARTA (MKRI) — A former convict who has completed a five-year waiting period does not need to face the penalty of political rights revocation, Chief Justice Suhartoyo emphasized at a hearing for the 2024 DPD (Regional Representatives Council) election results dispute in the plenary courtroom on Monday, June 3, 2024. The case No. 03-03/PHPU.DPD-XXII/2024 was petitioned by West Sumatera Provincial DPD candidate Irman Gusman. This, he said, follows the Constitutional Court Decision No. 12/PUU-XXI/2023.

Chief Justice Suhartoyo firmly stated this in response to General Elections Commission (KPU) chairman Hasyim Asy’ari’s explanation regarding the disqualification of Irman Gusman from the DPD election. Hasyim explained that initially, the KPU had followed the Constitutional Court’s decision, but during the harmonization of regulations with the Ministry of Law and Human Rights, changes were made. The change was based on the idea that the KPU must respect judicial decisions that impose political rights revocation on convicts.

“If we examine the Court’s decision, for convicts who have already passed a five-year waiting period, it is no longer relevant to impose the additional penalty of political rights revocation. Although not explicitly stated, this is part of the legal considerations of the Court’s decision. Why? Because it is akin to punishing someone twice, even for serious offenses,” Justice Suhartoyo emphasized.

Previously, Hasyim explained that during the harmonization with the Ministry of Law and Human Rights, it was agreed that if a former convict has their political rights revoked for three years, an additional two years should be added to complete a five-year waiting period.

“However, this perspective emerged during harmonization [of legislation], and following the Ministry of Law and Human Rights’ view, it was concluded that if political rights had been revoked and a three-year waiting period had been completed, it would suffice without needing to complete a full five years of waiting period. This became the standard,” he explained.

Waiting Period Passed

Hasyim’s statement aligns with the explanation provided by Khairul Fahmi, a constitutional and electoral law lecturer at Andalas University, who served as the Respondent’s expert. He noted that the criminal provisions in Article 11 of the Anti-Corruption Law include a maximum imprisonment of five years.

“When linked to the requirement that a candidate must not have been convicted of a crime punishable by five or more years of imprisonment, as stated in Article 182 letter g of the Election Law, the five-year period matches. The maximum five-year imprisonment in Article 11 of the Anti-Corruption Law corresponds to the five-year waiting period requirement in the Election Law,” Khairul explained.

Therefore, he continued, if someone has been convicted of a crime under Article 11 of the Anti-Corruption Law, the five-year waiting period stipulated in Constitutional Court Decree No. 12/PUU-XXI/2023 applies. If they have not completed this waiting period, they do not yet meet the qualifications to run as an individual candidate for the DPD.

“A state administrative court ruling states that the KPU Decree No. 1563 of 2023 regarding the DPD final candidates list (DCT) in the 2024 election was annulled, and the KPU was instructed to revoke the decision. However, the KPU did not comply because Article 18 paragraph (2) of the KPU Regulation No. 11 of 2023, which was the basis for the Petitioner’s candidacy, was deemed contrary to higher regulations by the Supreme Court. As a consequence of the Supreme Court’s decision, the Petitioner in this DPD election results dispute case must first complete a waiting period after serving their prison sentence,” explained Khairul.

Khairul continued that in deciding the DPD final candidates list, the KPU based its decision on existing laws and court rulings, including the Election Law, the Court decisions, and Supreme Court ruling regarding the Election Law and the KPU Law No. 11 of 2023. Therefore, the decision to finalize the DPD list of permanent candidates for the 2024 election cannot be considered a violation. The KPU decree regarding the West Sumatra DPD candidates aligns with regulatory and judicial mandates.

Additionally, he explained that in accepting legislative candidate registrations, the KPU verifies the completeness and validity of the required documents uploaded onto the candidates information system (SILON). If any supporting documents are found to be false or inaccurate, the KPU has the authority to declare that the prospective candidate does not meet the requirements.

“Therefore, such prospective candidates must be declared ineligible. Once declared ineligible, the KPU no longer needs to include them in the DCT,” explained Khairul.

At the hearing, law expert Maruarar Siahaan stated that conflicts arising from the Court decree should be resolved through principles of normative derogation, either by judicial review or legislative amendment.

He argued that a final and binding court decision in a specific case constitutes a concrete legal norm derived from an abstract norm. As long as the court decision is not overturned, it remains binding as the applicable legal norm for that specific case.

“Constitutional Court/Supreme Court judicial review decisions that declare a norm unconstitutional and non-binding must be implemented by amending the reviewed law to give it binding legal force, except in cases involving the annulment of human rights and criminal law norms, which are self-implementing. No one can be punished under a norm declared unconstitutional,” Siahaan stated.

He emphasized that ignoring such decisions violates professionalism, honesty, fairness, legal certainty, and the KPU’s independence. This results in KPU Decree No. 1563 of 2023 regarding the DCT for DPD in the 2024 election and KPU Decree No. 360/2024 regarding the recapitulation of vote counts for the 2024 DPD election in the West Sumatra electoral district being null and void.

Also read:

Former DPD Chair Irman Gusman Calls for Revote in W. Sumatera

KPU Clarifies Irman Gusman’s Cooling-Off Period Is Not Five Years

Irman Gusman is a DPD candidate in the 2024 election from West Sumatra Province, established by the KPU Decree No. 1042 of 2023 as candidate number 7 in the temporary candidates list (DCS) for DPD in 2024 election, listed in Appendix III for the electoral district of West Sumatra.

In his petitum, the Petitioner requests the Court to accept and grant the Petitioner’s petition in its entirety; to declare null and void the KPU Decree No. 360 of 2024 on the nationwide certification of the 2024 presidential and legislative election results.

Author              : Utami Argawati/L.A.P.
Editor                : Lulu Anjarsari P.
PR                    : Fauzan Febriyan
Translator         : Sedanti Anjali Putri/Yuniar W.

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.

Monday, June 03, 2024 | 17:40 WIB 22