Petitioners Terence Cameron and Raihan Husnul Wafa attending the Decision Pronouncement Hearing of the Pilkada Law petition on Tuesday (20/8/2024) in the Courtroom. Photo by MKRI/Ifa.

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Jakarta, MKRI – The Constitutional Court (MK) rejected the judicial review petition of Law No. 10 of 2016 on the Second Amendment 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 Mayor into Law (Pilkada Law) against the 1945 Constitution. The petition was filed by Terence Cameron, Raihan Husnul Wafa, and Wildan Nurmujaddid Erfan. The Decision Pronouncement Hearing of case No. 91/PUU-XXII/2024 was held on Tuesday, August 20, 2024.

Justice M. Guntur Hamzah, pronouncing the legal consideration of the decision, stated the context of the constitutional review of norm under Article 7 paragraph (2) letter s of Pilkada Law as requested by the Petitioner. According to the Court, the Petitioner argues that should the legislators be obliged to resign to run for Pilkada, it will potentially harm their constituents. If they lose in Pilkada, their constituents will lose quality leaders who can fight for their welfare in their position as legislators or region heads. These arguments are unfounded and excessive due to differences in their responsibilities. Also, it is uncertain whether legislators who run for Pilkada will be replaced by those who are not credible and competent when assuming their positions. It depends on the integrity of each legislator in carrying the mandate they hold. Moreover, legislative candidates who will replace them have been through consideration and selection by their party leaders so that they are worthy to replace the candidates who resigned to run for Pilkada. In addition, the performance of the legislators concerned cannot be assessed until they have actually carried out their duties.

Voters’ Choices

Regarding the votes on the legislative and regional head candidates, Justice Guntur said that both choices cannot be separated from the mandate so that they do not deny the trust given to them. Hence, the Court opines that the voters consider capability, integrity, and acceptability aspects. In this case,  they choose legislators because they are deemed to have the capability/competence and track record that are appropriate for the position they will assume.  

Therefore, if the legislator-elect or incumbent is not obliged to resign to run for Pilkada in their constituencies, it will deny the mandate given by their voters. It is because the mandate given to legislative or head of region candidates is not merely formality to channel their aspirations, but also so that their aspirations are materialized by voting for those who have track record. That is why they vote for the candidates to become legislators instead of head of region.

“The provision of Article 7 paragraph (2) huruf s of Law No. 10 of 2016 have given guarantee, acknowledgement, and just legal certainty as well as equal treatment before law as intended by Article 28D paragraph (1) of the 1945 Constitution. Hence, the Petitioners’ arguments are not reasonable by law in its entirety,” Justice Guntur explained.

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In the Preliminary Hearing last Monday, July 29, 2024, the Petitioner argued that Article 7 paragraph (2) letter s of the Pilkada Law has the potential to cause candidates for elected members of the DPR, DPD, and DPRD not to register as candidates for regional heads so that voters lose alternative choices and have an impact on the implementation of the 2024 Simultaneous Pilkada in a fair and democratic manner. The enlistment of candidates for the 2024 simultaneous Pilkada is scheduled for August 27, 2024 to August 29, 2024, then the determination of candidate pairs is scheduled for September 22, 2024, as stipulated in the General Election Commission Regulation (PKPU) No. 2 of 2024. Meanwhile, the inauguration of DPR and DPD members of the 2024 election results will be held on October 1, 2024, and the inauguration of DPRD members in several regions will also be held after September 22, 2024. According to the Petitioner, this will create legal uncertainty whether elected DPR, DPD, and DPRD candidates who want to register themselves as candidates for regional heads must also implement the provisions in Article 7 paragraph (2) letter s, because at the time of registration of regional head candidate pairs on August 27 to August 29, 2024 and at the time of the determination of regional head candidate pairs on September 22, 2024 they have not been inaugurated and have not yet had the status of members of the DPR, DPD, and DPRD.

 In the petitum, the Petitioner asks the Court to declare Article 7 paragraph (2) letter s of the Pilkada Law contrary to the 1945 Constitution and has no binding legal force as long as it is not interpreted as “declaring in writing his resignation as a member of the House of Representatives, member of the Regional Representative Council, and member of the Regional People's Representative Council since being determined as a candidate pair participating in the Election for those running for regional head in a region that does not cover the entire electoral district of the DPR / DPD / DPRD member; or if the elected DPR, DPD, and DPRD members will only be inaugurated as members of the DPR, DPD, and DPRD members after the date of determination of the regional head candidate pair, then they must make a statement letter willing to resign if they have been officially inaugurated as members of the DPR, DPD, and DPRD members for those who are running for regional head in areas that do not cover the entire electoral district of the DPR/DPD/DPRD members.”

Author: Sri Pujianti.

Editor: Nur R.

PR: Fauzan F.

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.

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