Polemics over Supreme Court Decision on Age Limit for Regional Head Candidates

The Supreme Court has granted a judicial review petition filed by the Garuda Party regarding the minimum age limit for regional head candidates in Article 4 paragraph 1 of General Election Commission Regulation (PKPU) Number 9 of 2020. The Supreme Court changed the age limit for regional head candidates, from being calculated from the determination of candidate pairs, to being calculated from the inauguration of elected candidates. The process is also fairly short, it only takes three days.

The decision is suspected to be a way to pass President Joko Widodo’s son, Kaesang Pangarep, to run in the 2024 Pilkada. Even though if you refer to the old rules, Kaesang cannot participate in the regional election contestation because he is not yet 30 years old when the candidate pairs are determined in September 2024.

Responding to this, Constitutional Law Expert at the Jentera Indonesia College of Law (STH), Bivitri Susanti, said that the decision had something in common with MK 90’s decision on the age limit for presidential and vice presidential candidates which passed Gibran Rakabuming Raka as a candidate. The two decisions actually both tinker with age limits by adding or changing certain norms.

“The problem is whether 30 years for governors and deputy governors is counted since the determination of registration or since the inauguration,” explained Bivitri in the KBR Public Space Talkshow entitled ‘Criticizing the Supreme Court Decision on the Age of Regional Head Candidates’ (5/6).

In its legal considerations, the Supreme Court argued that the decision was based on advancing young people. However, Bivitri views that advancing or postponing 3 months will not make young people no longer young, nor does she see that intention in explaining the textual interpretation or original intent of Law Number 10 of 2016 (Pilkada Law) which is said to accommodate young people.

Furthermore, Bivitri explained, the Supreme Court made a decision that refers to the 1945 Constitution, even though the Supreme Court’s authority only conducts material testing of laws and regulations under the law. She explained that material testing with the size of the 1945 Constitution should be carried out at the Constitutional Court (MK).

“So it is natural that we then associate that this is a matter of memory, we read the same pattern between the older brother’s court (MK) for his brother and the younger brother’s court (MA) for his younger brother,” she said.

He also explained the difference between the decision of the Constitutional Court and the Supreme Court in terms of the implementation of the decision. If the Constitutional Court’s decision will take effect immediately when it is stipulated, while the Supreme Court’s decision that asks to revise the PKPU rules, the rules must be changed by the KPU itself.

Meanwhile, the Executive Director of the Association for Elections and Democracy (Perludem), Khoirunnisa Nur Agustyati, sees that the Supreme Court is confusing the requirements for candidates to become regional heads and the requirements for the inauguration of regional head candidates. Article 7 letter C of the Pilkada Law clearly states that age is one of the requirements for candidacy.

“This is what then forms public opinion, now it seems that by using legal instruments, everything can be legalized. It’s like this has become normalized,” said Ninis.

Ninis explained that if the Pilkada Law is not changed, there is still a requirement for candidacy as a candidate for governor and deputy governor to be at least 30 years old. As long as the Pilkada Law is not regulated, the General Election Commission (KPU) should work in accordance with the law, because legal certainty is one of the principles of elections with integrity.

KPU has a history of not complying with Supreme Court decisions, previously KPU had not implemented the Supreme Court’s decision on the affirmation of women’s representation of legislative candidates, which clearly contradicts the law. KPU has also not followed up on the Supreme Court’s decision regarding the provision of former corruption convicts who are required to have served a five-year gap to run for office. In these two cases, KPU did not revise PKPU and only issued circular letters to political parties to follow the decision.

It is known that the Supreme Court ordered the KPU to revoke Article 4 paragraph (1) letter d of PKPU Number 9/2020 which regulates the minimum age requirement for regional head candidates, namely 30 years for candidates for governor-deputy governor and 25 years for candidates for regent-deputy regent and candidates for mayor-deputy mayor since they are determined to be a candidate pair.

“So in my opinion, it should be on the track, because the Pilkadanya law has not been changed, so what guides the KPU in making technical regulations is the KPU regulation. Although the decision canceled the PKPU, but now the KPU is in the process of forming the new PKPU technical regulations. So in my opinion, the KPU does not need to carry out this Supreme Court decision,” Ninis explained.

Furthermore, Ninis explained, in elections it is important to remember the principles of integrity, honesty, justice, and legal certainty. When making technical regulations, the KPU must adhere to the Pilkada law. For example, the law states that the minimum age requirement for gubernatorial candidates is 30 years old, it should be the KPU’s guide in drafting the technical rules, so that the rules are not easily shaken.

He views the many problems that occur in the body of election organizers because the legislators chose not to revise the Election Law. Finally, the public has used the material test route to the Constitutional Court and the Supreme Court to change certain points. For example, changes in the age of presidential candidates are made through judicial review at the Constitutional Court, while other technical election rules are submitted to the Supreme Court.

He also regretted the Supreme Court’s decision regarding the limit of regional head candidates calculated at the inauguration of the election winner. Judges must have a fair perspective and consider the nomination stages that have been running. Because the registration of individual candidates has begun and has been verified, the rules applied to individual candidates should be the same as those of candidates running from political parties.

“In every election process, the principle of justice must be maintained so that there is no difference in treatment that harms one party. Judges and KPU must ensure that all candidates, both individuals and those through political parties, are treated fairly and according to the applicable rules,” he said. []