The content of article 157 paragraphs (1), (2), and (3) of Law Number 10 of 2016 – substantially the three paragraphs in the two laws a quo are the same in accommodating Decision 97/PUU-XI/2013 – tested with Decision Number 85/PUU-XX/2022. The three paragraphs were tested using the Constitutional Court's interpretation in Decision Number 55/PUU-XVII/2019 which stated that the amenders of the 1945 Constitution did not distinguish between election regimes. This fact was extracted from the debates during the amendment process of the 1945 Constitution. Furthermore, the Constitutional Court elaborated that there are several variants in the simultaneity in the implementation of elections. Among these variants is the election of the executive group; namely the President and Vice President, Governors, Regents, Mayors, and so on are carried out simultaneously and at different times the election of the legislative group is carried out; namely the DPR, DPD, and DPRD.[11] Therefore, regional elections cannot be said to be a system separate from elections and the simultaneous nature is a constitutional matter.

The three paragraphs were also tested with Article 22E paragraph (1) of the 1945 Constitution concerning elections. The implementation of elections – in casu regional elections – will be disrupted because the special court that will handle regional election disputes has not been formed based on Article 157 paragraphs (1), (2), and (3).[12] Article a quo was also tested with Article 24C paragraph (1) of the 1945 Constitution which essentially only gives the authority to resolve election disputes to the Constitutional Court. As the Constitutional Court's constitutional interpretation in Decision 55/PUU-XVII/2019 states that the regional election regime is integrated into one roof with elections, the settlement of regional election disputes should also be one roof with election disputes.[13] 

Based on the legal considerations above, the Constitutional Court (MK) ruled that Article 157 paragraphs (1) and (2) of Law Number 10 of 2016 has no binding legal force. The Constitutional Court also ruled that the phrase "until the establishment of a special judicial body" in paragraph (3) has no binding legal force. The normative implication is that the Constitutional Court's authority to handle regional election disputes is no longer temporal and the establishment of a special court is not necessary. In addition, this decision also has implications for the status of the Constitutional Court. Based on Article 157 above, the position of the Constitutional Court is only as a legislative organ because it is temporary and the Constitutional Court cannot freely use this authority.[14] However, after the decision to annul Article 157 paragraphs (1), (2), and part of paragraph (3), the Constitutional Court returned to being a constitutional organ in terms of regional election disputes.

MK and the 2024 Regional Election Dispute

After holding simultaneous elections on February 14, 2024, Indonesia will hold simultaneous regional elections in 2024. The 2024 simultaneous regional elections will take place in November 2024 based on Article 201 paragraph (8) of Law Number 10 of 2016. As a derivative of the Law, a quo, the General Election Commission (KPU) issued KPU Regulation (PKPU) Number of 2024 which further regulates the schedule of the simultaneous regional elections. Based on the PKPU Attachment, voting in the 2024 regional elections will be held on November 27, 2024.[15]

The determination of the simultaneous regional election schedule as a normative consequence of the Constitutional Court's constitutional interpretation must be obeyed by all parties. As the only institution authorized to define constitutional meaning, the Constitutional Court has judicial supremacy that can bind the obedience of government officials in interpreting the constitution.[16] This supremacy is necessary to create legal certainty, especially the meaning of the constitution as interpreted by the Constitutional Court.

Despite the Constitutional Court's very central position, the Constitutional Court's decisions do not necessarily run smoothly. The formation of law and its implementation are strongly influenced by social and political forces.[17] The formation of law, in casu regional election dispute decisions, have no impact if they are not supported by social and political forces.

Social power is related to public support for the decision. Meanwhile, political power is related to the political steps of state officials in implementing the Constitutional Court's decision. As guardian of democracy, the Constitutional Court must obtain these two forces so that the regional election dispute decisions issued do not become floating decisions and seem to have no executorial power. The constitutional verse which states that the Constitutional Court's decision is final and binding must be realized and this is a shared responsibility, both from social and political forces, to uphold the constitution.

Bibliography

  • Asshiddiqie, Jimly. 2020. Formal Testing of Laws in the Rule of Law State. Jakarta: Konstitusi Press.
  • Buana, Mirza Satria. 2023. Comparative Constitutional Law: Philosophy, Theory, and Practice. East Jakarta: Sinar Grafika.
  • Hermawan, Muhammad Ilham. 2020. The Theory of Constitutional Interpretation: Implications of Constitutional Review in the Constitutional Court. Jakarta: KENCANA.
  • Huda, Ni'matul. 2021. Indonesian Constitutional Law. Depok: Rajawali Pers.
  • Magnis-Suseno, Franz. 2023. Political Ethics: Basic Moral Principles of Modern Statehood. Jakarta: Gramedia Pustaka Utama.
  • Martitah. 2023. The Constitutional Court from Negative Legislature to Positive Legislature. Jakarta: Konstitusi Press.
  • Palguna, I Dewa Gede. 2020. The Constitutional Court and the Dynamics of Legal Politics in Indonesia. Depok: Rajawali Press.

 

[1] Mirza Satria Buana, Comparative Constitutional Law: Philosophy, Theory, and Practice (East Jakarta: Sinar Grafika, 2023) p. 92

[2] Jimly Asshiddiqie, Formal Testing of Laws in the Rule of Law State (Jakarta: Konstitusi Press, 2020), p. 76

[3] Buana (2023), pp. 275-276

[4] Franz Magnis-Suseno, Political Ethics: Basic Moral Principles of Modern Statehood (Jakarta: Gramedia Pustaka Utama, 2023), p. 370

[5] Decision Number 97/PUU-XI/2013, p. 54

[6]           Ibid, p. 55

[7]           Ibid, p. 56

[8]           Ibid, p. 60

[9] Ibid, p. 62

[10] Law Number 8 of 2015 concerning Amendments to Law Number 1 of 2015 concerning the Stipulation of Government Regulations in Lieu of Law Number 1 of 2014 concerning the Election of Governors, Mayors, and Regents into Law Article 157 paragraphs (1) and (3)

[11] Decision Number 55/PUU-XVII/2019, pp. 323-324

[12] Decision Number 85-PUU-XX-2022, pp. 32-33

[13]          Ibid, pp. 37-39

[14] I Dewa Gede Palguna, The Constitutional Court and the Dynamics of Legal Politics in Indonesia (Depok: Rajawali Pers, 2020), p. 75

[15] Regulation of the General Election Commission Number 2 of 2024 concerning the Stages and Schedule for the Election of Governors and Deputy Governors, Regents and Deputy Regents, and Mayors and Deputy Mayors in 2024

[16] Muhammad Ilham Hermawan, Theory of Constitutional Interpretation: Implications of Constitutional Review in the Constitutional Court (Jakarta: Kencana, 2020), p. 124

[17] Martitah, The Constitutional Court from Negative Legislature to Positive Legislature (Jakarta: Konstitutsi Press, 2023), p. 45