Preliminary hearing for the material judicial review of the Regional Election Law relating to provision on leave of absence during campaign period, Monday (9/23/2024). Photo by MKRI/Ilham W.M.

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JAKARTA (MKRI) — Harseto Setyadi Rajah, an advocate, has filed a material judicial review petition of Article 70 paragraph (3) of Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) to the Constitutional Court (MK). In his petitum, the Petitioner requests that the Court add a provision on the length and schedule of leave of absence by paying attention to the task of implementing regional governments.

Article 70 paragraph (3) of the Pilkada Law reads, “Governor and Vice Governor, Regent and Vice Regent, and Mayor and Vice Mayor who run for reelection in the same region, must meet the following requirements during campaign period: a. being on unpaid leave; and b. not using any state facilities awarded to the position.” In the petitums, the Petitioner requested that the Court interpret the a quo article as, “Governor and Vice Governor, Regent and Vice Regent, and Mayor and Vice Mayor who run for reelection in the same region, must meet the following requirements during campaign period: a. being on unpaid leave; b. the arrangement of the duration and schedule of the leave of absence shall take into account the implementation of the duties of the regional government; and c. not using any state facilities awarded to the position.”

The Petitioner believes the Pilkada Law does not stipulate that the implementation and schedule of the leave of absence take into account the implementation of the duties of the regional government. Such an oversight has led to a full two months of leave of absence for incumbent regional heads in the 2024 regional election.

In fact, Article 281 paragraph (2) of Law No. 7 of 2017 on General Elections stipulates that president and vice president, incumbent or not, who run an election campaign do not have to take full leave of absence during campaign period. However, the implementation and schedule of the leave of absence take into account the implementation of the duties of the state and regional governments.

“The arrangement on leave in Law No. 7 of 2017 ensures that it would not hinder the implementation of the official concerned in running the government,” said legal counsel Viktor Santoso Tandiasa at the preliminary hearing on Monday, 23 September 2024 in the plenary courtroom.

The Petitioner stated that the different arrangements on leave during campaign period in Law No. 10 of 2016 and Law No. 7 of 2017 has clearly led to disharmony in the implementation of the election mandated by the 1945 Constitution. Not to mention, in Decision No. 85/PUU-XX/2022 pronounced on September 29, 2022 the Constitutional Court stressed that the presidential, legislative, and regional elections are one regime.

The Petitioner asserted that the Court’s interpretation that the presidential, legislative, and regional elections are one regime should also lead to comprehensive and holistic regulation of regional elections, including on leave of absence during campaign period for incumbents. The disharmony between the provisions on leave in Law No. 10 of 2016 and Law No. 7 of 2017 means that Article 70 paragraph (3) of Law No. 10 of 2016 is not in line with Article 22E paragraph (1) of the 1945 Constitution, which stipulates that the general elections be implemented in a direct, public, free, confidential, honest, and fair manner every five years, as there is no longer any distinction between the presidential, legislative, and regional elections.

“With regard to efforts to ensure and prevent incumbent regional heads from misusing facilities awarded to their positions for the benefit of election campaign, thus harming the other regional head candidates, strict supervision and sanctions from the authorized institutions are needed to implement the prohibition of using facilities related to their positions as stipulated in the Constitution of the Republic of Indonesia,” Tandiasa said.

Justices’ Advice

The hearing for case No. 122/PUU-XXII/2024 was presided over by Deputy Chief Justice Saldi Isra (panel chair) and Constitutional Justices Enny Nurbaningsih and Asrul Sani.

Justice Arsul said that the petitum implied that the Petitioner requested that the Court add a new provision in the a quo article, thus being a positive legislator. He questioned the Petitioner’s argument on such a petitum.

“What is the argument? So as not to upset the House and the Government, why the Constitutional Court has to… since this is not [a request to declare the article unconstitutional] if not interpreted [a certain way], but asking for the addition of a new norm,” he said.

Before adjourning the hearing, Deputy Chief Justice Saldi Isra announced that the Petitioner would have 14 days to revise the petition and submit it by October 7 at 15:00 WIB.

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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