Legal counsel Terence Cameron conveying the petition’s subject matter at the preliminary hearing for a material judicial review of the Regional Election Law, Wednesday (9/25/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of the Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) on Wednesday, September 25, 2024. The case No. 126/PUU-XXII/2024 was filed by Wanda Cahya Irani and Nicholas Wijaya, who challenge Article 54C paragraph (2) and Article 54D paragraph (3) of the Pilkada Law.
Article 54C paragraph (2) of the Pilkada Law reads, “The selection of 1 (one) candidate pair shall be carried out using a ballot containing 2 (two) columns consisting of 1 (one) column containing a photo of the candidate pair and 1 (one) empty column without any picture.”
Article 54D paragraph (3) of the Pilkada Law reads, “The next election as referred to in paragraph (2) shall be repeated in the following year or held in accordance with the schedule provided in statutory laws and regulations.”
Before Deputy Chief Justice Saldi Isra and members of the panel, legal counsel Terence Cameron said that the enforcement of Article 54C paragraph (2) of the Pilkada Law could potentially lead voters to vote for the single candidate pair, as the ballots are designed only to present one column containing the single candidate pair and an empty column, without any explanation of the reasons and implications of voting for either one.
Such a vague ballot design could potentially make voters confused, given that not all voters understand that they can vote for the empty column if the do not wish to vote for the single candidate pair. Without such an explanation, based on a few theories in psychology, this could potentially direct voters to vote for the single candidate pair rather than to abstain. Then this could lead to them losing the right to regional heads elected democratically as put forth in Article 18 paragraph (4) of the 1945 Constitution.
In addition, the Petitioners, who are in support of the empty column on the ballot and disagree with the partisan maneuver that results in the single candidate phenomenon, would be harmed since the single candidate pair would reap undeserved benefits from such a ballot design. As such, the Petitioners would lose their right to a fair regional election where even an empty column could win the election, Article 22E paragraph (1) of the 1945 Constitution.
The Petitioners also believe their constitutional rights as guaranteed by Article 18 paragraph (4), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution have been violated by the enforcement of Article 54D paragraph (3) of the Pilkada Law, which could potentially lead to multiple interpretations and legal uncertainty if an empty column wins in the upcoming regional election.
Terence argued that the phrase “in accordance with the schedule provided in statutory laws and regulations” in Article 54D paragraph (3) of the Pilkada Law could direct voters to vote for the single candidate pair due to the concern that if the empty column wins, there would be no definitive regional heads while the next election would not take place until 2029. This is because the Pilkada Law stipulates that a simultaneous regional election takes place every five years.
Therefore, in one of the petitums, the Petitioners requested the Court to declare Article 54C paragraph (2) of the Pilkada Law unconstitutional and not legally binding if not interpreted as “The selection of 1 (one) candidate pair shall be carried out using a ballot containing 2 (two) columns consisting of 1 (one) column containing a photo of the candidate pair and 1 (one) empty column without any picture; as well as the statement ‘Mark the column with the picture of the candidate pair if you support the candidate pair as governor and vice governor, regent and vice regent, or mayor and vice mayor or mark the empty column without picture if you do not wish for the candidate pair to be elected governor and vice governor, regent and vice regent, or mayor and vice mayor.”
In the next petitum, the Petitioners requested the Court to declare Article 54D paragraph (3) of the Pilkada Law unconstitutional and not legally binding if not interpreted as “The next election as referred to in paragraph (2) shall be repeated no later than 1 (one) year after the certification of the election results or no later than 1 (one) year after the end of the settlement of election results disputes in the Constitutional Court.”
Justices’ Advice
In response to the petition, Constitutional Justice Ridwan Mansyur advised the Petitioners to complete the petition so that it would make it easier for the constitutional justices to understand their intent. He stated that the format had followed guidelines in the Constitutional Court Regulation (PMK) No. 2 of 2021, thus needing no advice. He appreciated the clear explanation of the Court’s authority.
“However, in terms of legal standing, two Petitioners are eligible voters,” he said.
Although the Petitioners had elaborated their loss, he provided a piece of advice. “In the reason behind the petition, you should reinforce [the reason behind the petition (posita) with arguments on] the ballot design, which you believe is confusing to voters. You should also emphasize that adequate information on the ballot would help voters make informed decision. Therefore, speculative arguments are best avoided,” he added.
Before the hearing was adjourned, the panel gave the Petitioners 14 days to revise the petition and submit it to the Registrar’s Office no later than Tuesday, October 8 at 15:00 WIB.
Author : Utami Argawati
Editor : N. Rosi
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.
Wednesday, September 25, 2024 | 15:42 WIB 140