MK Rejects PSI's Lawsuit to Lower Minimum Age for Presidential Candidates
The Constitutional Court rejected PSI's request for a judicial review of the Election Law to lower the age requirement for presidential and vice presidential candidates from 40 to 35 years. Two judges had different opinions, namely Suhartoyo and Guntur Hamzah.
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The following article was translated using both Microsoft Azure Open AI and Google Translation AI. The original article can be found in MK Tolak Gugatan PSI untuk Turunkan Usia Minimal Capres
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The building of the Constitutional Court on Jalan Medan Merdeka Barat, Jakarta, Saturday (29/8/2020).
JAKARTA, KOMPAS - On Monday (16/10/2023), the Constitutional Court rejected the lawsuit filed by the Indonesian Solidarity Party, who wanted the minimum age requirement for candidates running for president and vice-president to be lowered from 40 years old to 35 years old.
Previously, PSI tested the constitutionality of the minimum age requirement for capres and cawapres as regulated in Article 169 letter q of Law Number 7 of 2017.
The Constitutional Court (MK) has also rejected the application for testing the minimum age of presidential and vice-presidential candidates submitted by the Garuda Party and five regional heads who requested that the MK add the phrase "or experienced as a state organizer" to Article 169 letter q of the Election Law.
In the decision rejecting the petition PSI, the Constitutional Court based its view on the original intent of Article 6 Paragraph (2) of the 1945 Constitution and the decisions of theMK previously related to age for public office, all of which stated that it was within the authority of the legislators to regulate it or open legal policy.
The Constitutional Court did not find any constitutional problem in the regulation of age requirements for presidential and vice presidential candidates as a reason to take over the government and DPR's authority.
Constitutional Justice Arief Hidayat, when reading out the considerations revealing the original intent of the 1945 Constitution and its amendments, said that the Constitutional Court opened the minutes of the ad hoc committee meeting (PAH), especially those discussing the requirements for presidential and vice presidential candidates. He said, based on careful tracing and tracing back of the minutes of amendments to the 1945 Constitution above, the Court found the legal fact that the majority of the amendments to the 1945 Constitution or factions in the MPR at that time were of the opinion that the minimum age for the President was 40 years.
However, due to various reasons including age-related issues in the future, it is possible for there to be dynamics and no ideal benchmarks, so as not to be unable to register as a President due to age-related issues despite meeting the requirements stipulated in the Constitution, the amendment of the Constitution agreed to have the issue of age determined by law.
"In other words, the determination of the minimum age for presidents and vice presidents becomes the domain of law formation," said constitutional judge Arief Hidayat during a session led by MK Chairman Anwar Usman.
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Constitutional Judge Arief Hidayat reads the decision on the dispute of the results of the legislative general election at the Constitutional Court building in Jakarta on Tuesday (6/8/2019).
The Constitutional Court (MK) also considered it inappropriate for the arguments presented by the petitioner stating that Article 169 Letter q of the Electoral Law is incompatible with the state conventions by taking the example of the former Prime Minister Sutan Sjahrir, who took office at the age of 36. This is because it was not done continuously, so it cannot be considered and categorized as a state tradition or convention that is accepted and recognized in the practice of state administration.
Furthermore, the appointment of the Prime Minister is a practice within a parliamentary system of government, while the applicant questions the age limits for presidential and vice-presidential candidates in a presidential system. Similarly, the applicant argues that a minimum age limit of 40 for presidential and vice-presidential candidates violates the institution of triumvirate (Foreign Minister, Interior Minister, and Defense Minister).
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However, according to the Constitutional Court (MK), such reasoning is legally baseless because the position of the triumvirate ministers is not that of a definitive president and vice president. Rather, they only serve as acting presidential officials until the President and Vice President are elected by the People's Consultative Assembly (MPR) in a session to select the President and Vice President (as stipulated in Article 8 Paragraph (3) of the 1945 Constitution).
"This means that there is no correlation linking the minimum age limit for the President and Vice President to the absence of regulations regarding the minimum age limit for the President and Vice President," emphasized Arief Hidayat.
Although in several of its decisions, the Constitutional Court has always stated that the issue of age is the authority of the law makers, it does not mean that the Constitutional Court cannot deviate from it. Constitutional Judge Saldi Isra said, the Constitutional Court has made an exception if there is a constitutional issue involved.
In other words, determining the minimum age of the president and vice president is the domain of law formation.
Among them, if the lawmakers exceed and abuse their authority, and clearly contradict the provisions in the Constitution. For this reason, the Constitutional Court did not find it justified because there is a legal fact that the UUD amendment states that the requirements must be included in the material regulated in the Constitution.
"Thus, the norm in Article 169 letter q of Law 7/2017 is a legislative material that is an implementation of Article 6 Paragraph (2) of the 1945 Constitution," said Saldi.
The Chief Justice of the Constitutional Court (MK), Saldi Isra, presides over the material test session of Law Number 7 of 2017 concerning General Elections at the MK building in Jakarta on Wednesday (26/7/2023).
The second reason why the Constitutional Court can deviate from open legal policy is if Article 169 Letter q of Law 7/2017 is contrary to morality, rationality and injustice that is intolerable. PSI argued that this provision was discriminatory against residents under 40 years of age.
However, Saldi revealed that with the same logic, lowering the age requirement for presidential and vice presidential candidates to 35 years old can also be seen as a form of moral violation, injustice, and discrimination against those who are under 35 years old, especially for those who already have the right to vote.
"Thus, the Supreme Court cannot determine a minimum limit for presidential and vice-presidential candidates because there may be dynamics in the future. In addition, if the Court determines the limit, its flexibility will be lost and may trigger various requests related to minimum age requirements for other public positions to the Constitutional Court," asserts Saldi Isra."
Different opinions
Two constitutional judges submitted dissenting opinions or different opinions, namely Suhartoyo and Guntur Hamzah. Suhartoyo assessed that PSI did not have legal standing or legal standing to question the age requirements of presidential and vice-presidential candidates. Therefore, the application should not be accepted.
Meanwhile, Guntur Hamzah stated that Article 169 Letter q of Law 7/2017 regarding Elections should be conditionally declared unconstitutional as long as it is not interpreted as "being at least 40 years old or having previously held a position whose election was conducted through elections such as regional head."
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Guntur Hamzah was confirmed as a Constitutional Judge at the Constitutional Court during the 7th plenary session of the 1st Session of the 2022-2023 Court Year in the Plenary Session Room of the Indonesian House of Representatives in Jakarta on Thursday (29/8/2022).
Deputy Secretary General of the Indonesian Solidarity Party (PSI), Mikhail Gorbachev Dom, expressed his disappointment and sees the age limit of 40 years as a setback. This is because the two previous election laws accommodated a minimum age of 35 for presidential and vice presidential candidates.
"Pray for us to win and pass to the DPR so that the revision of the Election Law can accommodate the interests of young people," he said.
The Constitutional Court (MK) has also rejected the request submitted by Garuda Party and five regional heads (Mayor of Bukittinggi Erman Safar, Deputy Regent of Lampung Pandu Kesuma Dewangsa, Deputy Governor of East Java Emil Elestiano Dardak, Regent of Sidoarjo Ahmad Muhdlor, and Deputy Regent of Mojokerto Muhammad Albarraa). They requested that MK add the phrase "or experienced as a state organizer" to Article 169 letter q of the Election Law.
At 1-2 PM, the Constitutional Court is still suspending the verdict reading. There are still three similar cases that have not been read. One of them is case 90/PUU-XXI/2023 which requests the Constitutional Court to add the phrase "or experienced as a regional head" proposed by one of the law students from Sebelas Maret State University Faculty of Law.
