Ahmad Kanedi (Petitioner) and legal counsels attending a judicial review hearing of the law on the legislatures and the Election Law, Thursday (7/4/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 17 of 2014 on the People’s Consultative Assembly (MPR), House of Representatives (DPR), Regional Representatives Council (DPD), and Regional Legislative Council (DPRD), also known as the MD3 Law, as well as Law No. 7 of 2017 on General Elections on Thursday, July 4, 2024 in one of the Court’s panel courtrooms. The case No. 48/PUU-XXII/2024 was filed by Ahmad Kanedi dan seven other individuals. Six of the eight petitioners are DPD RI members for the 2019-2024 term.

The Petitioners challenge Article 252 paragraph (1) of Law No. 17 of 2014, which reads, “Members of the Regional Representatives Council of each province shall be set at 4 (four) people,” and Article 196 of Law No. 7 of 2017, which reads, “Each province shall receive 4 (four) available seats in an election of members of the DPD.” Legal counsel Makhfud compared the seat allocation of DPR members and its regulation in electoral districts following Articles 186 and 187 paragraph (2) of Law No. 7 of 2017 as well as the number of members and seat allocation for DPD in each province as regulated in Article 252 paragraph (1) of Law No. 17 of 2014 and Article 196 of Law No. 7 of 2017 petitioned for review. The Petitioners believe both articles have violated the sense of proportionality and justice for them.

“Because the Petitioners, who placed fifth in their constituencies, will certainly not be elected as DPD members from the provinces as mentioned above in the 2024 election. The disproportionality is that the number of DPR members, which is 575, is not proportional to the number of DPD seats in each province, which is only 152. Meanwhile, according to Article 22C paragraph (2) of the 1945 Constitution, a seat requires no more than one-third and no more than one-third does not mean far below one-third. In other words, any number far below one-third is disproportionate and should be considered unconstitutional,” he explained.

Makhfud further said that the injustice lies in the determination of the number of DPR seats, where the legislatures determined at least three seats and at most ten seats. “This means that both are representative state institutions but there is a difference in the regulation of the number of members of these representative institutions,” he said.

He explained that the Petitioners will not be elected DPD members for their respective provinces due to the enactment of the articles petitioned for review, so they believe those articles have violated their constitutional right to fair treatment and legal certainty and have restricted them from having the same opportunity in government, thus in violation of Article 22C paragraph (2), Article 28D paragraphs (1) and (2) of the 1945 Constitution.

In the petition, the Petitioners explained that they were DPD candidates for the 2024-2029 who placed fifth in their constituencies: Bengkulu, Gorontalo, Aceh, West Sulawesi, East Kalimantan, DKI Jakarta, North Sulawesi, and Riau Province. At fifth place, they will not be named DPD members-elect due to the implementation of the articles being questioned. They also believe there is disproportionate number of DPD and DPR members, with the articles in question being one of the reasons.

Therefore, they request that the Court declare Article 252 paragraph (1) of Law No. 17 of 2014 conditionally unconstitutional if not interpreted as “Members of the DPD of each province shall be set at 5 (five) people,” and declare Article 196 of Law No. 7 of 2017 conditionally unconstitutional if not interpreted as “Each province shall receive 5 (five) available seats in an election of members of the DPD.”

Justices’ Advice

In response, Deputy Chief Justice Saldi Isra and Constitutional Justices Arief Hidayat and M. Guntur Hamzah gave their advice for the revision of the petition. Justice Guntur asked the Petitioners to revise their argument on the discriminatory articles. He asked them to differentiate between detriment due to injustice and due to failing to be elected DPD members for placing fifth in the election.

He added that their comparison of the number of DPR members is a subject for legislative review. “(What the Petitioners request) is (the authority of) the legislatures, so it is legislative review, not judicial review. It falls under judicial review if [the issue] has led to intolerable injustice,” he said.

Meanwhile, Deputy Chief Justice Saldi Isra asked the Petitioners to strengthen their reason for filing the petition. He asked them to elaborate the background for the idea to change the number of DPD members.

“Therefore, Article 22C paragraph (2), which states that the maximum number of DPD members not be one-third, should be explained first, then compare it with the current number of DPD and DPR members. The current number (four people) is constitutional as it is not over one-third. The Petitioners’ request of five members should be explained, whether it is unconstitutional or not,” he advised.

Before concluding the hearing, Deputy Chief Justice Saldi Isra announced that the Petitioners would have 14 days to revise the petition. The revised petition must be submitted to the Registrar’s Office by July 17, 2024 at 09:00 WIB.

Author       : Utami Argawati/L.A.P.
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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