Legal counsel Mahkfud conveying the petition’s subject matter at the preliminary hearing for a material judicial review of the Regional Election Law, Thursday (9/26/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — Former two-term Bengkulu City vice mayor of 2013–2018 and 2018–2023 Helmi Hasan, North Bengkulu regent Mian, House of Representatives (DPR) member of 2019-2024 Elva Hartati, and entrepreneur Makrizal Nedi have filed a material judicial review petition of Article 162 paragraphs (1) and (2) 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). The preliminary hearing for case No. 129/PUU-XXII/2024 took place on Thursday, September 26, 2024 in a panel courtroom, chaired by Deputy Chief Justice Saldi Isra.
Article 162 paragraph (1) of the Pilkada Law reads, “Governor and Vice Governor as referred to in Article 161 paragraph (1) holds office for 5 (five) years since the date of inauguration and thereafter can be reelected in the same position for only 1 (one) term of office.”
Article 162 paragraph (2) of the Pilkada Law reads, “Regent and Vice Regent as well as Mayor and Vice Mayor as referred to in Article 161 paragraph (3) shall take office for 5 (five) years since the date of inauguration and thereafter can be reelected in the same position for only 1 (one) term of office.”
Through legal counsel Mahkfud, the Petitioners argued that the norms are in violation of Article 27 paragraph (1) and Article 28D paragraphs (1) and (3) of the 1945 Constitution. Petitioners I and II are Bengkulu governor and vice governor candidates nominated by party coalition in the upcoming 2024 regional election. The coalition had more than 10% valid votes in the previous election, thus meeting the registration requirement in terms of party support. Meanwhile, Petitioners III and IV are coalition-backed South Bengkulu regent and vice regent candidates. On September 14, they were declared eligible to run in the upcoming regional election by the South Bengkulu General Elections Commission (KPU).
Based on Constitutional Court Decisions No. 22/PUU-VII/2009, No. 67/PUU-XVIII/2020, and No. 2/PUU-XXI/2023, Article 162 paragraphs (1) and (2) of the Pilkada Law have been amended. The Constitutional Court no longer differentiates between definitive and interim regional heads by counting the term of office of definitive governor and vice governor, regent and vice regent, and mayor and vice mayor as starting from the inauguration date. However, it does not explain when the term of office of vice governor, vice regent, and vice mayor when they replace the governor, regent, and mayor temporarily as interim officials.
Makhfud explained that despite lacking clarification on the term of office of those interim officials, the norms have been followed up by the KPU and Bawaslu through the issuance of the KPU Regulation (PKPU) No. 8 of 2024 and the Circular Letter No. 96 of 2024, respectively. As such, these election organizers have mistakenly interpreted, disregarded, or even resisted the Constitutional Court decisions.
“Before the KPU issued PKPU No. 8 of 2024, the Ministry of Home Affairs had warned through a letter that basically, by adding a provision stating that the term of office of an interim regional head is counted since it is stipulated in a decree or, in the event that the definitive regional head is temporarily absent, since they have become a defendant, but the KPU hid behind the formal legality of the applicability of the article being petitioned. So, it should be suspected that [the KPU] has deliberately gave officials who have taken the same office twice a “red carpet” to register as regional head candidates, as proven by seventeen regional head candidates who have taken the same office twice running for regional head election based on the validity of Article 162 paragraph (1) and paragraph (2) of Law No. 10 of 2016,” Makhfud explained.
In one of the petitums, the Petitioners requested the Court to declare Article 162 paragraph (1) of the Pilkada Law in violation of Article 27 paragraph (1) and Article 28D paragraphs (1) and (3) of the 1945 Constitution and not legally binding if not added with another paragraph that reads, “(1a) In the event that the Governor is temporarily absent following statutory laws and regulations, the Vice Governor shall carry out the Governor’s duties and authority since the decree of inauguration is signed.”
They also requested the Court to declare Article 162 paragraph (2) of the Pilkada Law in violation of Article 27 paragraph (1) and Article 28D paragraphs (1) and (3) of the 1945 Constitution and not legally binding if not added with another paragraph that reads, “(2a) In the event that the Regent or Mayor is temporarily absent following statutory laws and regulations, the Vice Regent or Vice Mayor shall carry out the Regent or Mayor’s duties and authority since the decree of inauguration is signed.”
Justices’ Advice
Constitutional Justice Enny Nurbaningsih stated that the Petitioners need to explain their qualification and an argument of the impairment of their constitutional rights. “Is the impairment potential or actual? If the petition is granted, what are the impacts? These are mandatory since they relate to the Petitioners’ legal standing. In this petition, the touchstones have not been explained,” she said.
Meanwhile, Constitutional Justice Ridwan Mansyur noted that the Petitioners’ subject matter has been ruled by the Court in previous decisions. He also said that they had not explained the constitutional impairment caused by the enforcement of the article.
Next, Deputy Chief Justice Saldi Isra highlighted the explanation of the Court’s authority, which he believed was still lacking. He also advised the Petitioners to highlight the contradiction between the article petitioned and the touchstones in the Constitution.
At the end of the session, Deputy Chief Justice Saldi Isra gave the Petitioners 14 days to revise the petition and submit it to the Registrar’s Office no later than Wednesday, October 9 at 15:00 WIB, after which a second hearing will be scheduled and all parties be notified.
Author : Sri Pujianti
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.
Thursday, September 26, 2024 | 11:06 WIB 152