Chief Justice Suhartoyo (center) delivering the verdicts for cases No. 41, 70, 88, 89, 90, and 99/PUU-XXII/2024 on Law No. 7 of 2017 on General Elections, Tuesday (8/20/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the petition No. 70/PUU-XXII/2024 on the judicial review of the provision on the minimum age of regional heads as regulated in Article 7 paragraph (2) letter e of Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law). However, it emphasized that all requirements for regional head candidates regulated in Article 7 of the Pilkada Law must be met before the candidates are determined.

“This means that, within legal reasoning, a study on the fulfillment of the requirement must be done before the determination of the candidate pairs. In this case, all requirements as stipulated in Article 7 of Law No. 10 of 2016 must be met before election organizers, in casu the KPU, determines the regional head candidates and their deputies,” said Deputy Chief Justice Saldi Isra delivering the Court’s legal opinion at a ruling hearing on Tuesday, August 20, 2024 in the plenary courtroom.

He explained that all requirements must be met before the candidates are determined. This means that the next stages of the election, such as the voting, vote counting, vote recapitulation, and certification of elected candidates, cannot be used as a mark to assess and determine the fulfillment of those requirements.

So far in practice since the people have been voting in regional elections in 2015, 2017, 2018, and 2020, the point to determine the fulfillment of those requirements was the determination of the regional head/deputy candidates.

The Court had also taken a comparative approach of the indicator of the fulfillment of the requirements based on the determination of permanent candidates between regional heads and their deputies, legislative members, and presidential tickets. For the election of DPR (House of Representatives), DPD (Regional Representatives Council), or DPRD (Regional Legislative Council) members, the fulfillment of requirements is determined since the determination of election participants, specifically the determination of permanent candidates list. This also apply to presidential ticket candidates.

“This means that all requirements to fulfill in running for election must be met when [candidates] are determined as candidates and must be fulfilled before the next stage of election,” Deputy Chief Justice Saldi Isra said.

The Court also emphasized that textually, Article 7 paragraph (2) letter e of the Pilkada Law does not explicitly says “since the determination of candidate pairs.” However, all regulations relating to the implementation of the election does not include this phrase.

As such, as long as there is no regulation on the age limit for regional head candidates in Article 7 paragraph (2) letter e of the Pilkada Law, this means the Constitution has left the age restriction to the legislatures. This means that the minimum age limit is seen as an open legal policy.

Deputy Chief Justice Saldi added that based on the elucidation to Appendix II of Law No. 12 of 2011 on Lawmaking in the chapter on “Requirements for Candidates,” the requirements for running as a regional head candidate and their deputy are the same. Upon in-depth study, it was found that the minimum requirement must be fulfilled when one is declared a candidate.

Aside from minimum age, all requirements stipulated in Article 7 paragraph (2) of Law No. 10 of 2016 must be fulfilled at the nomination stage. In this case, as in the a quo petition, Article 7 paragraph (2) letter e of Law No. 10 of 2016 on the minimum age for regional head candidates must be fulfilled when one registers or be nominated as a regional head candidate. Article 42 paragraph (3) of Law No. 10 of 2016 even explicitly stipulates that candidates for governor, regent, mayor, and their deputies must meet the requirements as set forth in Article 77 of Law No. 10 of 2016.

Not Following Court’s Opinion, Candidates Invalid

Deputy Chief Justice Saldi Isra also emphasized that if the election organizers, in this case the KPU, needs technical regulations to implement Article 7 paragraph (2) letter e of Law No. 10 of 2016, these regulations must comply with the material in the a quo norm. In addition, following the principle of erga omnes, the Court’s legal opinion and interpretation of Article 7 paragraph (2) letter e of Law No. 10 of 2016 are binding for all election organizers, election participants, and citizens.

“As such, if the election organizers do not follow the considerations in the a quo decision of the Court as a holder of judicial power authorized to settle election results, candidates for regional heads and their deputies who do not meet the requirements and conditions in question could potentially be disqualified by the Court,” Deputy Chief Justice Saldi explained.

Mutatis Mutandis

On the other hand, the Court also delivered its rulings for cases No. 41/PUU-XXII/2024, 88/PUU-XXII/2024, 89/PUU-XXII/2024, 90/PUU-XXII/2024, and 99/PUU-XXII/2024 back-to-back. It rejected those five petitions, which also concerned Article 7 paragraph (2) letter e of the Pilkada Law relating to the minimum age for regional head candidates.

Chief Justice Suhartoyo said that the constitutional issue in those cases is the same as that in case No. 70/PUU-XXII/2024, which had been rejected by the Court. Therefore, the Court’s legal opinion for case No. 70/PUU-XXII/2024 applies mutatis mutandis on the legal opinion to adjudicate the constitutionality of Article 7 paragraph (2) letter e of Law No. 10 of 2016 petitioned for review. In this case, the Court interpreted the starting point to determine the minim age limit in question has been emphasized in its opinion for case No. 70/PUU-XXII/2024.

“As such, the petition’s claims in relation to the conditional unconstitutionality of Article 7 paragraph (2) letter e of Law No. 10 of 2016 were legally baseless in their entirety,” said Chief Justice Suhartoyo. Therefore, the Court did not consider other matters as they were deemed irrelevant.

Also read:

Ahead of Local Election, Requirements for Candidates Challenged

Petitioners Seek Ruling Before Regional Head Nominations

Minimum Age Limit for Regional Head Candidates Challenged Again

The case on the minimum age for regional head candidates was brought to the Constitutional Court after the Supreme Court had reinterpreted Article 4 paragraph (1) letter d of the PKPU (General Elections Commission Regulation) No. 9 of 2020. The regulation stipulates that regional head candidates meet the minimum age requirement since the determination of candidate pairs. However, the Supreme Court through its ruling had interpreted the PKPU to mean that the minimum age requirement shall apply since the inauguration of the elected candidates.

The Petitioners asserted that if the minimum age requirement applied since the inauguration of the elected candidates, it would imply disregard and disrespect for their right to vote. They asserted that the a quo norm did not provide legal certainty and could potentially allow those ineligible to run as regional head candidates since the minimum age was counted since the inauguration of the elected candidates, as the Supreme Court had ruled.

Author            : Mimi Kartika
Editor             : Lulu Anjarsari P.
PR                 : Raisa Ayuditha Marsaulina
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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