MATRANEWS.ID – The Constitutional Court (MK) has scheduled a hearing to read the verdict on the lawsuit regarding the minimum age of presidential candidates and vice presidential candidates (capres-cawapres) on Monday (16/10/2023) next week.
In principle, I am of the view that, in essence, the Constitutional Court has no authority to set norms regarding the age limit for presidential or vice-presidential candidates in the legal norms system.
Because the issue of determining the age limit is related to the requirements for filling public positions constitutionally, which is based on various decisions of the Constitutional Court which has laid down the rule “open legal policy” is the domain of law makers, namely the DPR and the president.
The institution must go through a process of “legislation, wetgevingtherefore, this issue must be placed in the context of “statutory rules” so it must be returned to that context.
The Constitutional Court is examining, adjudicating and deciding case number: 29/PUU-XXI/2023, related to the material review of the Election Law concerning the age limit for presidential and vice presidential candidates on Monday next week, 16 October 2023.
If we refer to the provisions of Article 57 of Law Number 24/2003 concerning the Constitutional Court which has been amended by Republic of Indonesia Law 7/2020, as well as Constitutional Court Regulation No. 2/2021 concerning Procedures in judicial review cases, I am of the opinion that there are several possibilities and variants of the Constitutional Court’s decision in this case, namely:
- Decision for material review: In the event that the Application does not meet the formal requirements for submitting an Application, among others, as intended in Article 4, Article 10, Article 11, and/or Article 12, the decision is, “Declaring that the Petitioner’s application cannot be accepted”:
- The next possibility is that if the subject matter of the Petition has no legal grounds, the Constitutional Court in its decision states, “Rejects the Petitioner’s petition”:
- Then, if the main issue of the Petition has legal grounds, the Constitutional Court in its decision states that it has granted the Petitioner’s petition in part/entirely;
- The next variant of the decision is that if the Court is of the opinion that the application for material review is conditionally unconstitutional, then the ruling is to grant the Petitioner’s request;
- And finally, if it is deemed necessary, the Court may add orders other than those specified as intended in paragraph (1) and paragraph (2).
If we pay attention to the development of the Constitutional Court’s trials in adjudicating cases “a quo“During this time, there is potential for two possibilities to occur, namely:
- First: The Constitutional Court in its decision will reduce the age limit for presidential/cawapres candidates from 40 to 35 years; And
- Second possibility: Maintaining the age of 40 years but adding a special condition, namely having served or been a Regional Head with all the constitutional consequences.
Of course, by looking at the “experience” of previous MK decisions, including the Constitutional Court (MK), it has granted all requests for review of Law Number 19 of 2019 concerning the Second Amendment to Law Number 30 of 2002 concerning the Corruption Eradication Commission ( KPK Law).
The application was submitted by Deputy Chairperson of the Corruption Eradication Commission Nurul Ghufron in Number 112/PUU-XX/2022, according to the decision, the Constitutional Court stated that Article 29 letter e of the Corruption Eradication Committee Law which originally read, “A minimum age of 50 (fifty) years and a maximum of 65 (six twenty-five) years in the election process”.
It is contrary to the 1945 Constitution and has no legally binding conditional force as long as it is not interpreted as “a minimum of 50 (fifty) years of age or experience as a KPK leader, and a maximum of 65 (sixty five) years in the election process.”
Thus, it is possible for the Constitutional Court to make a decision with such style and character, so that the 40 year age limit for the existence of the norm remains valid, but with the addition of special legal conditions so that it can reach certain legal subjects, all of these possibilities could happen, and if that happens then the internal dynamics of the Constitutional Court Judges will be divided, of course there will be some Constitutional Court Judges who will submit different opinions or “dissenting opinions”. This is of course a product of my analysis which may or may not happen.
By: Dr. Fahri Bachmid, SH, MH (Expert in Constitutional and Constitutional Law, Indonesian Muslim University Makassar)