Petitioner's legal cousel, Terene Cameron, during Decision Pronouncement Hearing of Judicial Review of Law Number 10 of 2016 (Pilkada Law), Thursday (14/11) at the Plenary Courtroom. Photo by MKRI/Panji.
JAKARTA, MKRI—The Constitutional Court decided to partially grant Wanda Cahya Irani and Nicholas Wijaya's petition for judicial review of Law Number 10 of 2016 (Regional Election Law). The Petitioners questioned the design of the ballot papers for single-candidate elections, which only contained one column with photos of candidate pairs and one blank column without an explanation of the implications of each choice.
In Decision Number 126/PUU-XXII/2024, read out by Chief Justice Suhartoyo, the Court stated that Article 54C paragraph (2) of the Pilkada Law is contrary to the 1945 Constitution and has no conditional binding legal force as long as it is not interpreted as “The election of 1 (one) candidate pair is carried out using a ballot paper containing the name and photo of the candidate pair and 2 (two) blank columns at the bottom containing/with options to express ‘agree’ or ‘disagree’ with 1 (one) Candidate Pair for Governor and Deputy Governor, Regent and Deputy Regent, or Mayor and Deputy Mayor”.
Subsequently, the Court declared Article 54D paragraph (3) of the Regional Election Law contradicts the 1945 Constitution and has no legally binding force conditionally as long as it is not interpreted as “The next election shall be held within the maximum of 1 (one) year from the day of the election, and the regional heads/deputy heads elected based on the next election’s result hold their office until the inauguration of regional heads/deputy heads of the next simultaneous election, as long as it does not exceed 5 (five) years since the inauguration”.
Petitioners’ Concern
Deputy Chief Justice Saldi Isra, in the Court’s legal consideration, explained related to the petitioners’ concern over the design of the ballot with the empty column mechanism as stipulated in Article 54C paragraph (2) of the Regional Election Law, which has been used by the Election Commission during the Simultaneous Regional Election in 2019. The ballot design confused the voters in deciding their choices and led them to vote for a single candidate as compared to the empty column. It is due to the absence of an explanation on the implication of each choice in the ballot, both the choice to vote for the candidate pairs or the empty column. According to the Court, the concern is normal and can potentially happen. It is because, in the single-candidate ballot, there is only a note that states, “Vote on: candidate pair photo or the empty column without photo.” The sentence, according to the Court, is not a complete and comprehensive one in providing options.
“Considering the sentence/note “Vote on: Candidate Pair Photo or Empty Column Without Photo” is not supplemented with the statement that explains the implication of each option, both when voting for the candidate pairs photo or the empty column without a photo, so that it creates misperceptions for those who read it, especially for certain types of voters, because not all voters understand that the empty column is the place to state their disagreements if the only candidate pairs determined by the Regional Election Commission to become the regional heads,” Justice Saldi stated.
Containing Conditional Statement
Justice Saldi continued that ballots used in regional head elections with 1 (one) candidate pair should contain information in the form of a conditional statement that contains a sentence containing the main idea and explanatory ideas. The statement “Vote on: Candidate Pair Photo or Empty Column without Photo" in the ballot design, as referred to in Article 54C paragraph (2) of Law Number 10 of 2016, is a sentence containing 2 (two) choices, both of which are the main idea that is not equipped with explanatory ideas that can provide complete information on the two choices in the main idea itself.
The Court, in consideration of its decisions, both the Constitutional Court Decision Number 100/PUU-XIII/2015 and the Constitutional Court Decision Number 14/PUU-XVII/2019 have held that the blank column is a "place" for voters to determine their choice if they do not agree with the single candidate pair that has been determined by the regional election commission, so the more appropriate narrative information to be used on ballots in regional head elections with 1 (one) candidate pair, for example, is " Vote On: Columns that Contain Photos of Candidate Pairs If You Agree or Vote on Empty Columns If You Disagree Candidate Pairs Become Regional Heads and Deputy Regional Heads.” Such a statement is a form of conditional statement that is more assertive or clear because it contains the main idea, namely the choice to vote for a column with a photo of a candidate pair or an empty column without a picture, and an idea that contains an explanation for each of these choices, namely if you agree or disagree with the candidate pair to become regional head and deputy regional head.
The Potential of Voters’ Imbalance
Regarding the potential for misunderstanding due to the absence of complete information or explanation in the information contained in the ballot design for regional head elections with 1 (one) candidate pair as stipulated in Article 54C paragraph (2) of the Regional Election Law, according to the Court, it will directly impact voters in making decisions, because not all voters understand that the empty column is a place to express the choice of “disagreeing” with the single candidate pair to become regional head and deputy regional head. As a result, there is a potential imbalance in voting. In this case, the more favorable option is the one that contains more information, such as a column that contains a photo of the candidate pair, complete with the name of the candidate for regional head and deputy regional head, so that it tends to attract the attention of voters.
Meanwhile, the empty column appears without adequate explanation because the ballot design barely contains information to choose the empty column. Within the limits of reasonable reasoning, Justice Saldi said, such a ballot design does not provide balance in the democratic election of regional heads and deputy regional heads and is far from the principles of elections as mandated in the 1945 Constitution of the Republic of Indonesia.
Implemented in 2029 Regional Elections
In order to provide a balance so that the electoral principles as mandated in the 1945 Constitution of the Republic of Indonesia are properly reflected in the election of regional heads and deputy regional heads with 1 (one) candidate pair, the Court in this case, remains in its stance as in the Constitutional Court Decision Number 100/PUU-XIII/2015 which requires that the contestation of regional head and deputy regional head elections with 1 (one) candidate pair again use a plebiscite model that asks voters to make a choice either “agree” or “disagree” with the single candidate pair. Although returning to the plebiscite model as used in the 2015 Simultaneous Regional Elections, the model also still provides an opportunity for registered election observers to represent voters in the "disagree" column with the single candidate pair to dispute at the Constitutional Court. However, this option can still leave problems, for example, there are prospective voters who cannot or have limitations in reading and writing. Therefore, more intensive dissemination is needed by the organizers so that voters understand the true meaning of the word "agree" or "disagree" in the plebiscite model ballot.
Based on the description of the considerations above, the Court is of the opinion that the ballot model in the election of regional heads and deputy regional heads with 1 (one) candidate pair needs to be returned to the plebiscite model.
However, because the process and stages of printing ballots for the 2024 national simultaneous regional elections have entered the stage before the voting, it is not possible to be implemented in the 2024 national simultaneous regional elections. Therefore, the new ballot design/model with a plebiscite model in the election of regional heads and deputy regional heads with 1 (one) candidate pair will take effect in the 2029 National Simultaneous Regional Head and Deputy Regional Head Elections.
Term of Office of the Regional Head
The Court then considers the petition regarding the unconstitutionality of the norms of Article 54D paragraph (3) of the Regional Elections Law. This has been considered in Constitutional Court Decision Number 14/PUU-XVII/2019 in Sub-paragraph [3.12.2] to Sub-paragraph [3.12.4], which was pronounced in a plenary hearing open to the public on May 20, 2019. Based on the legal considerations above, because the design of the timing of the next election as stipulated in Article 54D paragraph (3) of the Election Law in question was formulated by the legislator, not in the national simultaneous election design model, the timing of the “next election” is affirmed to be repeated in the following year. This is because the norm of Article 54D paragraph (3) of the Election Law, in addition to containing the phrase “the next election,” also contains the phrase “the following year.”
Therefore, the Court must interpret both the phrases “the next election” and “the following year” together. In this case, the phrases “the next election” and “the following year” must be interpreted by not releasing the nature of the next election in the context of the simultaneous holding of national simultaneous elections in 2029 and not allowing acting regional heads or Plt. who served too long from the previous simultaneous elections.
Thus, according to the Court, the meaning of the phrases "the next election" and "the following year" in the norm of Article 54D paragraph (3) of the Regional Election Law becomes "the next election shall be held within a maximum of 1 (one) year from the voting on November 27, 2024". However, as the organizer, the Election Commission should try to hold the next election as soon as possible. This is intended so that regional heads and deputy regional heads elected from the results of the next election do not lose their rights to serve in the period of office since the inauguration.
Regarding the Petitioners' concerns regarding the absence of provisions regulating the term of office of the regional head from the next election after the election of the regional head and deputy regional head with 1 (one) candidate pair that causes legal uncertainty in the implementation of the next election, where under normal circumstances the regional head and deputy regional head elected from the simultaneous regional head election in 2024 will hold office for 5 (five) years. Meanwhile, if in the condition that the regional head and deputy regional head elected from the next election held no later than November 27, 2025, will still hold office for 5 (five) years, it will affect the simultaneous national elections in 2029. According to the Court, these concerns are reasonable and have the potential to occur. Therefore, in order to maintain the model of simultaneous national elections that have been considered constitutional in several Court decisions, it is necessary to accept the fact that regional heads and deputy regional heads are elected due to the necessity of re-election, including the consequences of the results of dispute resolution in the Court, must accept a term of office of less than 5 (five) years. In this case, the term of office of the regional head and deputy regional head that will not reach 5 (five) years is a logical consequence of the “next election.”
With regard to the reduction of the term of office, it is necessary to consider legal protection for regional heads and deputy regional heads whose term of office is not fulfilled until 5 (five) years. For example, legal protection can be carried out by providing compensation as stipulated in I Article 202 of Law Number 8 of 2015, or compensation can be formulated in other forms. Normatively, such compensation has been declared as something that can be justified and considered constitutional by the Court (vide Constitutional Court Decision Number 18/PUU-XX/2022).
“That based on the entire description of the legal considerations above, the provisions of the norms of Article 54C paragraph (2) and Article 54D paragraph (3) of Law Number 10 of 2016 have been found to be contrary to the principles of organizing regional head and deputy regional head elections that are democratic, fair and have legal certainty guaranteed in the 1945 Constitution of the Republic of Indonesia as argued by the Petitioners. However, because the Court's interpretation of Article 54C paragraph (2) and Article 54D paragraph (3) of Law Number 10 of 2016 is not as requested by the Petitioners, the arguments of the petition of the Petitioners a quo are legally reasonable in part,” Justice Saldi said.
Also read:
Ballot Design for Single-Candidate Regional Election Questioned
Petitioners Add Arguments on the Review of Regional Elections’ Single Candidate Ballots
Article 54C paragraph (2) of the Regional Election 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 Regional Election 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.”
Legal counsel Terence Cameron said during the preliminary hearing on Wednesday, September 25, 2024, that the enforcement of Article 54C paragraph (2) of the Regional Election 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 a blank column. Such a vague ballot design does not explain the reasons and implications of voting for either one, which could confuse voters, given that not all voters understand that they can vote for the empty column if they do not wish to vote for the single candidate pair.
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 a blank box wins in the upcoming regional election. Also, 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 blank box wins, there would be no definitive regional heads while the next election would not take place until 2029. This is because the Regional Election 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 Regional Election 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) blank 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 the vice mayor or mark the blank column without a 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 Regional Election 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.”
Author: Utami Argawati.
Editor: N. Rosi
PR: Raisa Ayuditha Marsaulina.
Translators: Rizky Kurnia Chaesario/Yuniar Widiastuti
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, November 14, 2024 | 12:22 WIB 44