Supreme Court Decision on DPD Candidacy

A. Cases and Decision Results The Supreme Court granted part of the request of the Chairperson of the Hanura Political Party, Oesman Sapta Odang for a judicial review of KPU Regulation Number 26 of 2018 concerning the Second Amendment to PKPU Regulation Number 14 of 2018 concerning the nomination of individual election participants for DPD members. Supreme Court Decision No. 65 P/HUM/2018 was decided in a deliberative meeting of judges chaired by Supreme Court Justice Supandi with members of the Supreme Court Justices Yulius and Is Sudaryono on October 25 2018. And the minutation process was completed and uploaded on the Supreme Court's official website starting Thursday. Before filing a lawsuit against the Supreme Court, Oesman Sapta Odang filed a lawsuit against the Constitutional Court. In the decision of the Constitutional Court No. 30/PUU- XVI/2018 dated 23 July 2018 regarding the review of Article 182 letter I Law No. 7 of 2017 concerning Elections which is interpreted as a prohibition for political party officials to become members of the DPD which is effective from the time the decision is pronounced. This means that the prohibition rule applies to the 2019 election, not the 2024 election. The Constitutional Court's decision was used as the basis for issuing KPU Regulation No. 26 of 2018 concerning the nomination of individual candidates for the DPD election, in particular Article 60A which regulates the obligation for political party officials (central/regional) to resign from their positions when registering as candidates for DPD members in the 2019 elections the day before the final list of candidates is determined. The MK's decision was followed up by the KPU by issuing KPU Regulation Number 7 of 2017. Through a circular letter, the KPU asked Oeman Sapta Odang to submit a letter of dismissal from a political party no later than September 19 2018 at 24.00 WIB. However, OSO did not accept and considered that the Constitutional Court's decision was not retroactive. OSO through its attorney, Yusril Ihza Mahendra reportedKPUto Bawaslu regarding allegations of election administration violations regarding the requirements for candidates for DPD members. However, in the decision of the adjudication trial, Bawaslu decided that the KPU had not violated the administration. Bawaslu said the Constitutional

Court's decision No. 30/PUU-XVI/2018 which was read on July 23 is not retroactive and at the time it was decided it was not yet at the stage of establishing a DCT. Because of this, the requirements for the DPD legislative election can still change according to existing legal regulations. Oesman Sapta Odang decided to file a lawsuit with the Supreme Court and Administrative Court. The Election Supervisory Body (Bawaslu) decided to continue the election administration lawsuit filed by Oesman Sapta Odang's attorney, Dodi S Abdul Qadir regarding his client's candidacy as a DPD member. The OSO party sued the KPU for not carrying out the decisions of the Supreme Court (MA) and the decisions of the State Administrative Court (PTUN). The Supreme Court decided that the 2019 Election could be contested by candidates for DPD members who are also political party administrators. Administrative Court ordered the KPU to obtain permanent legal force for the PTUN decision on Case Number 242/G/SP/SPPU/2018/PTUN-JKT. In the PTUN Decision on Case Number 242/G/SP/SPPU/2018/PTUN-JKT, the panel of judges has canceled and revoked the RI KPU Decree Number 1130/PL.01.4-Kpt/06/KPU/IX/2018 Concerning the Appointment of DCT Members of the 2019 Regional Representatives Council dated 20 September 2018. The Assembly also ordered the KPU to issue a new SK by including the name OSO in the DCT. B. Case Chronology Begins fromThe steps taken by the chairman of the Hanura Party, Oesman Sapta Odang, to run as a candidate for DPD members in the 2019 elections were hampered because of the Constitutional Court's decision which prohibited party administrators from becoming DPD candidates. The case began when the Constitutional Court ruled that DPD candidates were prohibited from holding concurrent positions with political party officials. The MK's decision was then followed up by the KPU by issuing KPU Regulation Number 7 of 2017. The KPU through a circular letter dated September 10 2018 asked Oesman Sapta Odang to submit a letter of dismissal from a political party no later than September 19 2018 at 24.00 WIB.

However, Oesman Sapta Odang did not accept and considered that the Constitutional Court's decision was not retroactive or non-retroactive. Oesman Sapta Odang through his attorney, Yusril Ihza Mahendra reportedKPUto Bawaslu regarding allegations of election administration violations regarding the requirements for candidates for DPD members. However, in the decision of the adjudication trial, Bawaslu decided that the KPU had not violated the administration.OSO then filed a lawsuit for judicial review to the Supreme Court. In its decision, the Supreme Court granted the request for judicial review submitted by OSO regarding PKPU Number 26/2018 concerning the Nomination of Individual Candidates for the RI DPD Election. The PKPU prohibits political party officials from advancing as DPD RI candidates. OSO also filed another legal action by filing a lawsuit at the PTUN Jakarta.In the decision read out on Wednesday (14/11), the Jakarta Administrative Court ordered the KPU to include OSO's name as a DPD candidate in2019 election. This was after OSO won a judicial review decision at the Supreme Court (MA).Meanwhile, KPU chairman MrArief Budimanstated that they were waiting for a copy of the Jakarta Administrative Court's decision ordering the KPU to include OSO's name in the DPD final candidate list. The KPU will immediately make a decision after studying the Administrative Court's decision. C. Case analysis The following is a case analysis regarding the MA's Judicial Review of the case of political party officials who became members of the DPD: - Supreme Court concluded Article 60A KPU Regulation No. 26 of 2018 is contrary to Article 5 letter d and Article 6 paragraph (1) letter i Law no. 12 of 2011 concerning Formation of Legislation. Article 5 which reads: In forming Legislation, it must be carried out based on the principle of Forming good Legislation, which includes: a. clarity of purpose; b. proper forming institutions or officials;

c. suitability between types, hierarchies, and payload materials; d. can be implemented; e. usability and effectiveness; f. clarity of formulation; And g. openness. Article 6 : (1) Material content of Legislation must reflect the principles of: a. protection; b. humanity; c. nationality; d. kinship; e. archipelago; f. Unity in Diversity; g. justice; h. equal position in law and government; i. law order and certainty; and/or j. balance, harmony, and harmony. - Article 60A KPU Regulation No. 26 of 2018 was declared conditionally contrary to the Law on Establishment of Legislation as long as it was not applied retroactively to participants in the 2019 DPD Member Election. This means that the ban on political party officials from becoming DPD members takes effect after the 2019 Election through the revision of the Election Law.