Supreme Court Ruling May Have Legal Flaws

The General Elections Commission (KPU) said it had accepted the Supreme Court ruling that revoked two KPU regulations banning former corruption convicts from contesting in next year’s legislative elections. However, the ruling may be legally flawed as it contradicts Law on the Constitutional Court.

KOMPAS/WISNU WIDIANTORO

A wide banner bearing the logos of political parties contesting the 2019 general elections is displayed on Saturday (25/8/2018) along the fence surrounding the Jakarta headquarters of the General Elections Commission (KPU).

JAKARTA, KOMPAS — The General Elections Commission (KPU) said it had accepted the Supreme Court ruling that revoked two KPU regulations (PKPU) banning former corruption convicts from contesting in next year’s legislative elections. However, the ruling may be legally flawed as it contradicts Law No. 24/2003 on the Constitutional Court.

The two KPU regulations revoked by the Supreme Court were PKPU No. 26/2018 on Regional Representatives Council (DPD) candidacy and PKPU No. 20/2018 on House of Representatives and Regional Legislative Council (DPRD) candidacy. The ruling was made by a panel of judges presided by Supandi.

Supreme Court spokesperson Suhadi said on Friday (14/9/2018) that the two PKPUs were revoked on Thursday on the grounds that they contradict Law No. 7/2017 on general elections. “The Election Law allows former corruption convicts to contest in legislative elections, but the PKPUs ban them. Therefore, the PKPU as a lower-level regulation contradicts a bylaw, a higher-level regulation,” he said.

Meanwhile, the nation is still awaiting progress of judicial review requests on the Election Law. Currently, there are at least four judicial review requests on the law at the Supreme Court, namely on presidential threshold, vice presidents’ maximum terms in office, campaign funds and the definition of self-promotion in campaigns. Article 55 of the Constitutional Court Law stipulates: “Judicial reviews of regulations lower than bylaws at the Supreme Court must cease if the bylaw used for reviewing said regulations is under judicial review at the Constitutional Court, up until relevant rulings are made by the Constitutional Court.”

With this consideration, Gadjah Mada University state administrative law lecturer Zainal Airifin Mochtar said the revocations of the two PKPUs by the Supreme Court were legally flawed as the bylaw used for reviewing them was under judicial review at the Constitutional Court. “Normatively, the Supreme Court has violated Article 55 of the Constitutional Court Law,” he said.

Constitutional Court Ruling No. 93/2017 also states that all judicial reviews of regulations at the Supreme Court must be suspended if the bylaws used for reviewing said regulations are under judicial review at the Constitutional Court.

Corruption

The Supreme Court revoked the two PKPUs amid ongoing legal processes against many legislators. Between 2004 and 2017, the Corruption Eradication Commission (KPK) launched investigations against 144 House and DPRD members, outside of the 41 DPRD members in Malang and 38 DPRD members in North Sumatra named corruption suspects by the KPK this year.

KPU chair Arief Budiman said the commission would respect and abide by the Supreme Court ruling.

Elections Supervisory Agency (Bawaslu) chair Abahn said the Supreme Court ruling would not apply to former legislative candidates that parties have replaced in the candidates’ replacement period. The ruling will apply to all former corruption convicts contesting in next year’s election who parties have yet to replace, whether or not they filed disputes at Bawaslu.

Gerindra Party executive Ahmad Riza Patria said the party had withdrawn and replaced all its legislative candidates who were former corruption convicts, except for Jakarta city council deputy chair M Taufik. Hanura secretary-general Herry Lontung Siregar said the party had yet to withdraw its legislative candidates who were former corruption convicts. Therefore, the party would not withdraw them from the candidates’ list.

(REK/AGE/GAL)