THE DEBATE OVER THE AGE OF PRESIDENTIAL AND VICE PRESIDENTIAL CANDIDATES IS OUTSIDE THE CONTEXT OF CONSTITUTIONALISM

debat, CONSTITUTIONALISM

The debate regarding the age of Presidential Candidates and Vice Presidential Candidates has gone out of the context of the authority of the Constitutional Court which is a judicial body, as a branch of judicial power. One of the Constitutional Court’s authorities according to the Constitutional Court Law is to rule, at the first and final instance, on the judicial review of a law against the 1945 Constitution of the Republic of Indonesia. It is not uncommon that after the issuance of a law there are norms that are not in line with the 1945 Constitution as the highest law in Indonesia. Therefore, laws that are not in line can be subject to judicial review at the Constitutional Court to be declared null and void. As quoted from Stanley I. Kutler's book entitled The Supreme Court and the Constitution, Readings in American Constitutional History “...a law repugnant to the constitution is void".

Concerning Article 169 letter q of Law Number 7 of 2017 concerning General Elections ("Election Law") which was subjected to a judicial review at the Constitutional Court because the age limit of 40 years for Presidential and Vice Presidential Candidates was deemed to be contrary to Article 28D of the 1945 Constitution which states "every citizen shall have the right to obtain equal opportunities in government”, the Constitutional Court already issued its judgment regarding the judicial review of the Election Law which granted part of the petition and in its verdict stated that Article 169 letter q was contrary to the 1945 Constitution and had no binding legal force. However, an oddity emerged from the judgment, where the Constitutional Court added the condition "as long as it is not interpreted as 'being at least 40 (forty) years old or having held or currently holding a position elected through the general elections, including regional elections'".

It is true that judicial review of a law against the 1945 Constitution is the authority of the Constitutional Court, as long as the judicial review is aimed at reviewing norms that are considered repugnant to the 1945 Constitution. However, is interpreting the norms in an article by creating new norms (legal policy) still part of the Constitutional Court's authority? In addition, it was also not explained what the Constitutional Court's legal considerations were in rendering its judgment, and giving rise to new norms (legal policy) in the judicial review of the Election Law, because basically the presidential and vice presidential candidacy test cannot only refer to regional leadership experience. These two things are at different levels of complexity. In rendering a judgment, the Constitutional Court should base its judgment on ratio decidendi or grounds for rendering the judgment. This can help to explain why the Constitutional Court rules on something in a certain way, and the principles contained in ratio decidendi become an important reference in rendering judgments. The act of rendering a judgment that violates the established limits of authority is something that injures constitutionalism.

Constitutionalism in the book An Introduction to Constitutional Law by Eric Barendt is defined as a belief in the application of restrictions on the government through the constitution. This theory believes that political authority distributed across several institutions can prevent arbitrariness. Quoted from Constitutional History in the book Constitutional Law and Politics by David M. O'Brien, "The Founding Fathers gave us a constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safe entrusted with unlimited power”. From these ideas, a French legal expert, Montesquieu in his book entitled L'Espirit des Lois popularized the Trias Politica theory which later developed into the Separation of Power theory, dividing the branches of power in a country into three, namely the executive, legislative, and judicial. Each branch of power has its own duties and functions which must not interfere with the affairs of the other branches of power. According to Montesquieu, the legislative power has the task of forming laws, and the executive power is the implementer of laws. Meanwhile, the judicial power is tasked with ruling on violations of the law.

In Indonesia itself, based on article 20 of the 1945 Constitution it is clearly regulated that the function of forming laws is the function of the House of Representatives. Each draft bill is discussed by the House of Representatives together with the President, then the bill is ratified by the President to become law. Therefore, the Constitutional Court as a judicial body which is a branch of judicial power should not form and create new norms (legal policy) in ruling on the review of a law. This is because the authority to create or changea norm in a law (legal policy) is the function of the House of Representatives as the legislative power together with the President as the executive power, and not the authority of the judicial power

Written by Prof. Dr. Frans H. Winarta S.H., M.H. & Alwi Hafizh Al-Mumtaz, S.H.

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