Sandy Yudha Pratama Hulu and Stefanie Gloria, as Petitioners, attending the decision pronouncement hearing on Law No. 1 of 2015 on the Election of Governors, Regents, and Mayors on Tuesday (20/08/2024) in the Courtroom. Photo by MKRI/Ifa.
JAKARTA, MKRI - The Constitutional Court (MK) granted all of the petitions of two students in the case of judicial review of Article 69 letter i of Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) against Article 28C paragraph (1), Article 28D paragraph (1), and Article 22E paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The hearing to pronounce Decision No. 69/PUU-XXII/2024 was held on Tuesday, August 20, 2024, in the Plenary Courtroom.
“Granting the petition of the Petitioners in its entirety. Stating that the phrase “place of education” in the norms of Article 69 letter i of Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents and Mayors into Law (State Gazette of the Republic of Indonesia of 2015 No. 23, Supplement to State Gazette of the Republic of Indonesia No. 5588) is contrary to the 1945 Constitution of the Republic of Indonesia and has no conditional binding legal force as long as it is not interpreted as “exempted for universities that obtain permission from the person in charge of the university or other designation and are present without election campaign attributes,” said Chief Justice Suhartoyo when reading out the verdict.
In the legal reasoning delivered by Justice M. Guntur Hamzah, the Court stated that constitutionally, the norm construction of Article 22E paragraph (2) of the 1945 Constitution of the Republic of Indonesia should not only read that general elections (elections) are held to elect members of the people's representative council, regional representative council, president and vice president, and regional people's representative council but must also be interpreted to include regional head elections. Such an interpretation requires harmonization or synchronization of electoral regulations or laws for matters that have similarities between elections and regional head elections. In this regard, one of the stages of elections and regional head elections that can be considered to have similarities is the organization of the campaign.
“If read carefully, the provisions regarding the prohibitions during the campaign period above, among the prohibitions on campaigns that are regulated with a similar substance between Law No. 1 of 2015 and Law No. 7 of 2017 is “prohibition on using educational places”. However, related to the “prohibition on using educational places” as stipulated under Article 280 paragraph (1) letter h of Law No. 7 of 2017, the Court has excluded the prohibition for educational places,” Guntur added.
Exemption on Campaign Ban
As stipulated under the Verdict of the Court’s Decision No. 65/PUU-XXI/2023 pronounced during an open plenary hearing on August 15, 2023, the campaign on educational places was allowed after obtaining permission from the university ‘s person in charge and without the use of campaign attributes. The stipulation refers to paragraph [3.14] of the Court’s Decision No. 128/PUU-XXI/2023, pronounced on November 29, 2023.
Based on the excerpt of the legal consideration above, Guntur added the exemption to the prohibition of campaigning in universities to give the opportunity for academics to learn the vision, mission, and programs proposed by each candidate by giving the opportunity fairly. In addition to being a gathering place for some new and critical voters, lifting the campaigning ban at the universities means opening up the opportunity for more constructive dialogical campaigns, which ultimately lead to the political maturity of the community.
Guntur explained that after carefully studying the legal considerations regarding the exemption of the campaigning ban in colleges and universities, considering the Court’s standing not to differentiate between general and regional elections, and examining the similarities in substance between the current petition and case No. 65/PUU-XXI/2023, the Court has no hesitancy to apply the legal considerations of the latter case, mutatis mutandis. Also, the mutatis mutandis application cannot be separated from the principle of erga omnes.
Elections Regime
Prohibition of political campaigns in the university under Article 280 paragraph (1) letter h of Law No. 7 of 2017 has been declared conditionally constitutional. Hence, similar norms in other laws should also be given similar interpretations. Allowing conflicting norms to continue to exist within the limit of reasonable reasoning may damage the legal certainty of the implementation of elections.
Despite the provision being regulated under two different laws, because there is no longer a difference in the election regime for the sake of legal certainty and the strengthening of erga omnes, the prohibition of campaigns in educational places during regional heads elections as stipulated on the norm of Article 69 letter i of Law No. 1 of 2015 must be declared contradicting the 1945 Constitution and does not have legally binding force conditionally as long as it is interpreted as obtaining permission from the person in charge of the university or other designation and being present without election campaign attributes.
Also read:
Two Students Challenge Campaign Ban in Campus
Two Students Revise Law on Prohibition of Regional Election Campaign in Universities
During the Preliminary Hearing on Friday, July 12, 2024, Sandy Yudha Pratama Hulu (Petitioner I) felt disadvantaged by Article 69 letter I of Pilkada Law, which limits the petitioner to test critically the ideas of regional head candidates in his university. Meanwhile, Stefanie Gloria (Petitioner II), who is also a university student, felt harmed by the abovementioned article due to the obstruction from obtaining information regarding ideas between candidates within the academic dialog, which affected her choices as a new voter on the 2024 Pilkada.
Sandi stated that during the 2024 General Elections, there were many public discussions, academic forums, and debates between candidates for presidential and legislative elections in the universities. “The organization of the event received great attention from the colleges and students,” Sandy said.
According to him, if the provision on Article 69 letter i of Pilkada Law is still applicable during the Simultaneous Pilkada in 2024, the Petitioners’ constitutional rights will be harmed because they will not be able to examine the wit of regional head candidates regarding their visions, missions, and ideas in depth, critically, and academically in the universities. Their means to choose wisely for the upcoming Pilkada will also be lost.
For that, the Petitioners requested the Court to declare Article 69 letter i of Pilkada Law on the phrase “educational place” is in breach of the 1945 Constitution and does not have legally binding force as long as it is not interpreted as “exempted for universities that obtain permission from the person in charge of the university or other designation and are present without election campaign attributes.”
Author: Utami Argawati.
Editor: N. Rosi
PR: Tiara Agustina
Translator: Rizky Kurnia Chaesario/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
Tuesday, August 20, 2024 | 15:36 WIB 49