Between Article and Market

In the midst of public scrutiny over Constitutional Court or MK, the MK gave a relief decision for the development of democracy.

ADRYAN YOGA PARAMADWYA

Judgment hearing at the Constitutional Court Building, Jakarta, Wednesday (30/11/2022). The Constitutional Court added that a five-year waiting period is required for former convicts if they wish to run for office as candidates for the legislature.

In the decision on the judicial review of Law Number 7 of 2017 concerning Elections, especially regarding the status of ex-convicts as candidates for legislative members (caleg), the Constitutional Court decided on a waiting period for former convicts who wish to become candidates for members of the House of Representatives (DPR) and Regional Legislative Council (DPRD). The waiting period is set at five years after the convict has served his or her sentence in accordance with a court decision with permanent legal force.

The Constitutional Court's decision is a relief. The decision amended an article made by the DPR and the government, which did not include a five-year waiting period for ex-convicts to run for legislative candidates. We hope that the DPR will accept the decision even though the MK's decision corrects the political decisions of the DPR and the government. The DPR no longer needs to "recall" MK judges who also added a five-year waiting period requirement for ex-convicts before registering as candidates for legislature.

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As in the case of the Job Creation Law, the Constitutional Court declared the law conditionally unconstitutional. Even though the Job Creation Law was not mentioned as a reason, the DPR later "recalled" constitutional judge Aswanto who was nominated by the DPR, and was replaced by Guntur Hamzah.

The Constitutional Court then stated that the dismissal of constitutional judges had nothing to do with MK’s decision that the Article 23 of the Constitutional Court Law was unconstitutional. The Constitutional Court's decision and the political reality of replacing Aswanto with Guntur still raise questions about the constitutionality of the composition of MK judges. This is a problem that also needs to be fixed.

KOMPAS/RONY ARIYANTO NUGROHO

Actions by Indonesian Corruption Watch (ICW) activists and representatives of community elements who are members of Civil Society during a demonstration calling for the rescue of the Constitutional Court in the courtyard of the Constitutional Court Building, Jakarta, Tuesday (4/10/2022). The civil society protested the steps taken by the DPR RI to dismiss and replace Constitutional Justice Aswanto.

Regardless of the institutional problems of MK judges, the Constitutional Court's decision on the "five-year waiting period" for ex-convicts to run for legislature is progress for democracy. State institutions, such as the DPR, the government and the Constitutional Court, can actually play a role in regulating articles that contain the requirements for someone to become a public official.

State institutions can take on the role of selecting through an article so that people with a bad track record for the Republic have a limited space to participate in the selection of public officials. Regulation through this article is important before it is handed over to the voter market mechanism, which sometimes gets stuck in transactional patterns and popularity.

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The empirical reality also shows that through democracy, it appears that some elites in representative institutions, whose track records are unclear, can be elected as people's representatives. As a result, the representative institution's performance has been disappointing.

Furthermore, the General Elections Commission needs to make rules to implement the Constitutional Court's decisions. The Constitutional Court's decision did not mention the Regional Legislative Council candidates. However, the spirit of mysticism is the same. Ex-convicts must have a five-year waiting period to run for the legislature, including the Regional Legislative Council.

This article was translated by Hendarsyah Tarmizi