Legal Literacy - Deputy Minister of Home Affairs (Wamendagri) Bima Arya Sugiarto conveyed that as many as 270 regional heads elected in the 2024 Simultaneous Regional Elections are scheduled to be inaugurated by President Prabowo Subianto on February 6, 2025 at the Presidential Palace, Jakarta. In his official statement on Wednesday (22/1/2025), Bima emphasized that the inauguration would take place in accordance with the provisions of Law Number 10 of 2016, specifically Article 164 B which regulates the election of governors, regents and mayors."God willing, Mr. Prabowo will inaugurate in accordance with Law Number 10 of 2016 Article 164 B," said Bima. (President Prabowo Will Inaugurate 270 Elected Regional Heads on February 6, 2025, menpan.go.id, January 23, 2025).

This action clearly contradicts the Constitutional Court Decision No. 27/PUU-XXII/2024. However, fortunately the Minister of Home Affairs (Mendagri) immediately made revisions and postponed the inauguration. However, is it in accordance with the decision of the Constitutional Court (MK)? This condition is interesting to study in depth and comprehensively. Therefore, this paper is intended to be input for policy makers so as not to be legally mistaken. First, it is necessary to explain the reason why the Governors, Regents and Mayors submitted judicial review Article 201 paragraph (7) of Law Number 10 of 2016 concerning the Second Amendment 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, Regents and Mayors (UU Pilkada) to the Constitutional Court.

Because the existence of Article 201 paragraph (7) of the Regional Election Law makes the regional heads elected in 2020 (inaugurated 2021) have their term of office cut short until 2024. Article 201 paragraph (7) of Law Number 10 of 2016 concerning Regional Elections states,regional heads from the 2020 Regional Election serve until 2024”. Meanwhile, Article 162 paragraphs (1) and (2) of the same Law regulate,regional heads serve for five years.” A rough calculation is that regional heads only serve for three years or more, even though the mandate of the law is five years. The Constitutional Court granted part of the requests from a number of regional heads regarding Article 201 paragraph (7) of Law No. 10 of 2016, which states that their term of office does not have to end at the end of 2024. The Constitutional Court considers that the provisions in the article contradict the principle of the rule of law, violate the principle of equality before the law and government, create legal uncertainty, and are not in line with the principles of democracy and elections guaranteed in the 1945 Constitution. In simple terms, Article 201 paragraph (7) in the Regional Election Law is declared conditionally unconstitutional. This means that regional heads elected in the 2020 Regional Election will remain in office until regional heads from the 2024 Simultaneous Regional Election are officially inaugurated. However, the question that arises is, when exactly will the inauguration of regional heads produced by the elected 2024 simultaneous regional elections be carried out?

The Constitutional Court (MK) realizes that this issue has the potential to cause debate, so in its decision, the Constitutional Court clearly affirms its position. There are opinions that say that if there are no lawsuits to the Constitutional Court, the regional heads elected in 2024 should be immediately inaugurated so that they can immediately carry out their duties. However, wait a minute, the regional heads who are currently in office are not without legitimacy, they were also directly elected by the people through the 2020 Regional Elections and are still carrying out their duties. Therefore, in its considerations, the Constitutional Court provides a special note regarding this matter. So as not to be biased, the author quotes excerpts from the Constitutional Court's considerations in its decision:

“[3.13.3] Constitutional Court Decision Number 67/PUU-XIX/2021]. Moreover, in Constitutional Court Decision Number 12/PUU-XXII/2024, the Court has emphasized that the schedule for national simultaneous voting in the Election of Governors and Deputy Governors, Regents and Deputy Regents, and Mayors and Deputy Mayors simultaneously remains implemented in accordance with the provisions of Article 201 paragraph (8) of Law 10/2016, namely November 2024. Although the affirmation regarding the schedule for holding simultaneous regional head and deputy regional head elections nationally in 2024 has been affirmed by the Court in Constitutional Court Decision Number 12/PUU-XXII/2024 as stipulated in Article 201 paragraph (8) of Law 10/2016, namely November 2024, even though it is not mandated in the decision, however, through the a quo decision, The Court emphasizes again that the legal considerations of the Court's decision also have binding legal force because the legal considerations are the ratio decidendi of the decision as a whole.”

Then what are the Constitutional Court's considerations regarding the inauguration of regional heads from the 2024 Regional Elections? Here is the Constitutional Court's affirmation in consideration 3.17.2:

“That relating to the agenda for the implementation of the regional head and deputy regional head elections simultaneously nationally in 2024, Article 201 paragraph (8) of Law 10/2016 states, "National simultaneous voting in the Election of Governors and Deputy Governors, Regents and Deputy Regents, and Mayors and Deputy Mayors throughout the Unitary State of the Republic of Indonesia will be held in November 2024". With this provision, voting will be held in November 2024 so that the inauguration can be carried out after the settlement of the regional head election dispute in the Constitutional Court. The time period for resolving regional head election dispute cases has been regulated in Article 157 paragraph (8) of Law 10/2016 which states that the Constitutional Court decides on disputes over regional head election results no later than 45 (forty-five) working days from the receipt of the application for disputes over regional head election results. However, this does not rule out the possibility for the Constitutional Court in its decision on disputes over regional head election results to order a re-election, or a revote, or a recount. Therefore, for the sake of legal certainty and in order not to hinder the transition of regional government leadership and the running of regional government, according to the Court, the inauguration of regional heads and deputy regional heads simultaneously is an exception for regions that carry out re-elections, or revotes, or a recount in accordance with the decision of the Constitutional Court in the case of disputes over regional head election results. In addition, there is the possibility of non-simultaneous inaugurations due to force majeure factors in accordance with the provisions of laws and regulations. Thus, before the inauguration of regional heads and deputy regional heads resulting from the national simultaneous elections in 2024, Governors and Deputy Governors, Regents and Deputy Regents, and Mayors and Deputy Mayors who are the result of the 2020 elections and are still in office can continue to carry out their duties and positions until the inauguration of regional heads and deputy regional heads resulting from the national simultaneous elections in 2024. Within reasonable limits, the Court's considerations will not disrupt the transition process of regional government leadership originating from the results of the national simultaneous elections in 2024.”

So, the next question is, when will the Pilkada dispute really be resolved? Based on the existing Law, a maximum of 45 days from the submission of the application. However, it needs to be understood that the resolution of the Pilkada dispute is not just a matter of the issuance of a Dismissal Decision from the Constitutional Court. In fact, after the decision, the examination of the main case of the Pilkada dispute in the Constitutional Court begins. Here, the government must be more careful and not rush into making decisions. Based on the Constitutional Court Decision Number 27/PUU-XXII/2024, the inauguration should be carried out after all Pilkada dispute applications have been decided by the Constitutional Court, not just based on the dismissal decision. The only exception is for regions that in the Constitutional Court's decision are required to undergo a Revote (PSU). For elected regional heads, it is better to be more patient, because this is not just a matter of time, but also concerns the legitimacy of regional government legally. In addition, it needs to be remembered that regional heads resulting from the 2020 Pilkada also have the right to complete their term of office according to the mandate given by the people, even though in fact their term of office has been cut to less than five years.

Don't be in a hurry to come to power. As a state of law, Indonesia must comply with the Constitutional Court's Decision to avoid potential further legal disputes. In addition, this year is the final stage of the transition towards Simultaneous Pilkada and the alignment between the central and regional governments. Thus, if the inauguration of regional heads resulting from the 2024 Pilkada is still forced before all disputes in the Constitutional Court are resolved—except for regions that are required to undergo a Revote (PSU)—then this action risks creating a legal defect because it is contrary to the Constitutional Court Decision No. 27/PUU-XXII/2024.