A. Fahrus Rozi as Petitioner and Constitutional Law Student of UIN Syarif Hidayatullah Jakarta during Decision Pronouncement Hearing No. 52/PUU-XXII/2024, Tuesday (20/8/2024). Photo by MKRI/Bayu.
Jakarta, MKRI – Any state officials or officials in the region who are actively involved in a campaign and the person concerned is still performing the duties of his position must apply for a campaign permit in advance and must automatically take leave outside the state’s dependence.
That is the Court's legal consideration regarding the petition of Ahmad Farisi (researcher) and A. Fahrur Rozi (Constitutional Law Student of UIN Syarif Hidayatullah Jakarta). The Decision of Case No. 52/PUU-XXII/2024 was pronounced in the Decision Pronouncement Hearing on Tuesday (20/8/2024). Both Petitioners argued that Article 70 paragraph (2) of Law Number 10 of 2016 concerning the Second Amendment to Law Number 1 of 2015 concerning the Stipulation of Government Regulations in Lieu of Law Number 1 of 2014 concerning the Election of Governors, Regents, and Mayors into Law (Pilkada Law) is contrary to the 1945 Constitution.
In the legal reasoning read out by Justice Daniel Yusmic P. Foekh, the Court considers that if state officials or officials in the regions participate in the campaign, they must comply with the provisions that generally regulate “prohibitions in the campaign”, as also regulated in Law No. 7 of 2017. Therefore, in order to ensure that the implementation of Pilkada can take place democratically, honestly, and fairly, as guaranteed in Article 18 paragraph (4), Article 22E, and Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia, state officials or officials in the regions must still fulfill the provisions not to use facilities in their positions, except for security facilities for state officials and undergo leave outside state dependence as stipulated in Article 281 paragraph (1) of Law No. 7 of 2017.
“Thus, the arguments of the Petitioners regarding the norms constitutionality of Article 70 paragraph (2) of Law No. 10 of 2016 are reasonable according to law as long as the norms are not interpreted as ‘Governors and Deputy Governors, Regents and Deputy Regents, Mayors and Deputy Mayors, other state officials, and regional officials may participate in the campaign by applying for a campaign permit in accordance with the provisions of laws and regulations by fulfilling the provisions of not using facilities in their positions, except security facilities for state officials as stipulated in the provisions of laws and regulations and undergoing leave outside state dependence’,” Daniel said.
Bawaslu Testimony
Then, Justice Daniel said that to ensure neutrality in the campaign process, there is a prohibition on the participation of state officials and officials in the regions covered in Article 121 of Law No. 5 of 2014. In addition, Article 280 paragraph (2) of Law No. 7 of 2017 expands the scope of the prohibition of parties involved in the campaign to the village level. Therefore, to ensure that the elections take place honestly and fairly, it is necessary to strengthen supervision by the Election Supervisory Agency (Bawaslu) and its staff up to the polling station level in accordance with their duties and authorities. In other words, if there is a violation of the “prohibition in the campaign” committed by anyone, Bawaslu and its staff, in accordance with the provisions of the election law, must exercise their authority to follow up on the violation.
Therefore, Daniel added, it is irrelevant to only limit it to family relationships by blood or marriage because it will narrow the area of supervision in organizing elections. Thus, the Petitioner's argument regarding the prohibition in the campaign for officials who are related by blood or marriage to the third degree, or the relationship of husband or wife even though they have divorced the candidate pair and do not have a potential conflict of interest with the duties, authority and rights of their respective positions is not reasonable according to law. Therefore, it has been found that Article 70 paragraph (2) of Law No. 10 of 2016 is contrary to the principles of democratic, honest, and fair elections and legal certainty as stated in Article 18 paragraph (4), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia as argued by the Petitioners. However, because the decision made by the Court is not the same as the Petitum requested by the Petitioners, the arguments of the Petitioners regarding the testing of the norms of Article 70 paragraph (2) of Law No. 10 of 2016 are reasonable according to the law in part.
“Stating that Article 70 paragraph (2) of Law Number 10 of 2016 on the Second Amendment to Law Number 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law Number 1 of 2014 on the Election of Governors, Regents and Mayors into Law is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force as long as it is not interpreted as “including having to fulfill the provisions: a. not using facilities in his/her position, except security facilities for state officials as stipulated in the provisions of laws and regulations; and b. undergoing leave outside state dependence”, so that Article 70 paragraph (2) of Law No. 10 of 2016 on the Second Amendment to 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 reads in full, “Governors and Deputy Governors, Regents and Deputy Regents, Mayors and Deputy Mayors, other state officials, and regional officials can participate in the campaign by applying for a campaign permit in accordance with the provisions of laws and regulations, including having to fulfill the following provisions: a. not using facilities in their positions, except security facilities for state officials as stipulated in the provisions of laws and regulations; and b. undergoing leave outside state responsibility,” said Chief Justice Suhartoyo, reading out the decision of the petition.
Also read:
Lack of Campaign Restrictions for State Officials Questioned
Petitioners Reaffirm Petition on Lack of Campaign Regulations for State Officials
At the Preliminary Hearing on Friday, July 5, 2024, the Petitioners said that they were entitled to the implementation of honest, democratic, legally certain, and free from conflicts of interest elections. However, the tested article opens the door to a monopoly of power and the practice of nepotism by active regional heads and other state officials. For this reason, the Petitioners request that the Court require regional heads and other state officials to leave their positions during the campaign period.
In addition, according to the Petitioners, the article causes the absence of restrictions that rigidly regulate the instruments of power and state apparatus that are always inherent in state officials. Thus, it opens up a large space for the monopoly of electoral electability through the apparatus and instruments of power by state officials. In addition, the absence of provisions prohibiting Governors and Deputy Governors, Regents and Deputy Regents, Mayors and Deputy Mayors, Regional Officials, and other officials from conducting campaigns who have family/kinship up to the third degree or husband and wife relationships even though they have been divorced with Pilkada candidates also greatly allows for the practice of nepotism in Pilkada.(*)
Author: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Raisa Ayuditha Marsaulina
Translator: Rizky Kurnia Chaesario (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 | 17:44 WIB 51