Dilemma of Constitutional Court's Decision

JAKARTA – On Thursday, June 26, 2025, the Constitutional Court (MK) issued Decision Number 135/PUU-XXII/2024, which regulates the separation of general elections, also known as general elections, in 2029. The Constitutional Court ordered that national and regional elections be separated by a minimum of two years and a maximum of two years and six months.

The national elections referred to include the election of members of the House of Representatives (DPR), the Regional Representative Council (DPD), and the president and vice president, while regional elections consist of the election of members of the provincial DPRD (Regional People's Representative Council), the regency/city DPRD (Regional People's Representative Council), and the head and deputy heads of regions.

The issuance of MK Decision 135/2024 came as a surprise. In addition to being considered a new norm, namely the separation of national and regional elections, the decision was also deemed to contradict MK Decision Number 55/PUU-XVII/2029, which also regulated the simultaneity of elections without establishing a new norm.

In Decision 55/2019, the Constitutional Court "only" proposed six options for simultaneous elections: simultaneous elections for the House of Representatives (DPR), Regional Representative Council (DPD), president-vice president and Regional People's Representative Council (DPRD); simultaneous elections for the House of Representatives (DPR), Regional People's Representative Council (DPD), president-vice president, governor and mayor/regent; simultaneous elections for the House of Representatives (DPR), Regional People's Representative Council (DPD), president-vice president, DPRD, governor, mayor/regent; simultaneous national elections (DPR, DPD, president-vice president) followed by simultaneous local elections; simultaneous national elections; simultaneous provincial elections; simultaneous district/city elections; and finally, an additional option that maintains the principle of simultaneity.

Through this decision, the Constitutional Court also emphasized that determining the simultaneous election model is the authority of the House of Representatives (DPR) and the government as lawmakers. Meanwhile, Decision 135/2024 directly determines the simultaneous election model that must be regulated by law.

Taufik Basari, Chairman of the Constitutional Review Commission (K3) of the People's Consultative Assembly (MPR RI), stated that the new norm from Decision 135/2024 could impact vacancies in regional governments and the Regional People's Representative Council (DPRD). According to him, vacancies in the executive branch can still be filled by Acting (Pj) members, but not in the DPRD, which cannot be filled by Acting (Pj) members or have their terms extended, as this contradicts the 1945 Constitution.

He stated that Constitutional Court Decision No. 135/2024 places the DPR and the government, as lawmakers, in a dilemma. Because, on the one hand, Article 22E paragraph 1 of the 1945 Constitution mandates elections to be held every five years, while the Constitutional Court, whose ruling is final and binding, has stipulated that national elections will be held in 2029 and local elections in 2031.

"Implementing the Constitutional Court's ruling violates the constitution. Not implementing it also violates the constitution. Why? There's Article 24C, paragraph 1, which states that the Constitutional Court's ruling is final. This is what I call a dilemma, a conditional deadlock. Eaten in the mouth of a crocodile, not eaten in the mouth of a tiger," Taufik stated.

Neni Nur Hayati, Executive Director of the Democracy and Electoral Empowerment Partnership (DEEP) Indonesia, stated that a major challenge posed by Decision 135-2024 is the 2- to 2.5-year gap for Regional Legislative Council (DPRD) members, as there are no regulations regarding term extensions. "Because there are no regulations regarding extending DPRD terms, as clearly stated in Article 22E, legislative members are elected every five years," she added.

Constitutional Void Requires Amendment to the 1945 Constitution

A similar sentiment was expressed by Aan Eko Widiarto, a constitutional law expert from Brawijaya University, explaining why Regional People's Representative Council (DPRD) members differ from regional heads, who serve as acting administrators. DPRD members, on the other hand, are representatives of the people, making the acting system impossible. Therefore, a transitional election is needed to elect regional legislative members with a limited term of office of around two to two and a half years.

"This is a kind of interim election, before entering into the simultaneous national-local election scheme. This short term must be regulated depending on political policy in following up on this Constitutional Court ruling. Only after that will simultaneous elections be held for the next five-year term," he explained.

This constitutional "void" is considered to open the opportunity for an amendment to the 1945 Constitution as a solution to the issuance of Constitutional Court Decision 135/2024. Ahmad Irawan, a member of Commission II of the House of Representatives (DPR), stated that his office is currently studying the Constitutional Court ruling before deciding whether to follow up with a revision of the Election Law or other options. He also revealed that there is an opportunity to push for amendments to the 1945 Constitution to improve the electoral and governance systems.

"Therefore, we still need to study whether the follow-up to the Constitutional Court's ruling is sufficient with a revision of the law, or whether further amendments to the 1945 Constitution are necessary," he said.

The politician from the Golkar Party faction emphasized that the electoral and governance systems cannot be built in a patchwork fashion because they are interconnected. He believes that a comprehensive way to reform them is through a constitutional amendment.

"The path to comprehensive and constitutional reform is different from what the Constitutional Court has done so far, which has been casuistic and partial. Moreover, the Constitutional Court's own opinions often change," Ahmad added.

However, constitutional law expert and former Chief Justice Jimly Asshiddiqie emphasized that following up on Decision 135/2024 does not require an amendment to the 1945 Constitution. This is because the term of office of Regional People's Representative Council (DPRD) members can be extended as stipulated in the law regarding the transition period. "It can be extended. It should be regulated in the law regarding the transition period, just like the extension of the term of office of the regional head with the acting head recently," he said.

The Chairperson of the Perludem Advisory Board, Titi Anggraini, believes that it would be too far-fetched to follow up Decision 135/2024 through an amendment to the 1945 Constitution. This is because the decision does not conflict with Article 22E paragraph (1). Therefore, there is no need to conflate Article 22E paragraph (1) of the 1945 Constitution with the ruling on the constitutionality of simultaneous national and regional elections. She believes it is understandable that the non-simultaneous elections have not yet been implemented according to the constitutional design for simultaneous elections, as we are currently in a transitional period.

She cited an example of a similar transitional period pattern that occurred during the 1977 elections, which were held six years after the 1971 elections. This was despite the constitutional schedule for elections to be held every five years. "Then in 1999, we accelerated the elections, which were supposed to take place in 2002, but they were accelerated to the 1999 election year as a form of consensus to exit the democratic transition," Titi explained.

Constitutional Court Ruling 135/2024 Said to Open Opportunities for Regional Head Elections to be Conducted by the Regional People's Representative Council (DPRD).

On the other hand, Constitutional Court Ruling 135/2024, which separates national and regional elections, seems to be a breath of fresh air for the discourse on returning regional head elections to the DPRD. The Deputy Chairman of the National Awakening Party (PKB), Jazilul Fawaid, stated that his party would push for regional head elections to be conducted by the DPRD, especially at the regency/city level, if the Election Law is revised as a result of the Constitutional Court ruling.

"Regional head elections by the DPRD will be more efficient and effective, especially since many of the regional heads' authority has now been returned to the central government. This way, we can reduce the complexity of the election system, which has been considered unstable and costly," he said.

He dismissed the notion that the Constitutional Court's ruling had dashed hopes of returning regional elections to the Regional People's Representative Council (DPRD). He argued that constitutionally, there is no direct mandate to hold direct regional elections. Based on Article 22E of the 1945 Constitution, elections are elections for the president, the Indonesian House of Representatives (DPR RI), the Regional Representative Council (DPD), and the provincial and district/city DPRDs, held every five years. Meanwhile, members of the second-level DPRD are considered to represent the people.

Furthermore, Article 18 paragraph (4) of the 1945 Constitution states that governors, regents, and mayors are each elected as regional governments democratically. "The word 'democratic' in the Constitution implies that regional head elections do not have to be directly by the people. Democratic means it can be direct, indirect, or through the DPRD. The Constitution does not stipulate that regional head elections must be by the people. Moreover, the meaning of Indonesian democratic philosophy, as enshrined in Pancasila, is clearly deliberation and representation," Jazil explained.

According to BRIN political researcher Aisah Putri Budiarti, each electoral system—whether direct or through the Regional People's Representative Council (DPRD)—has its own advantages and disadvantages. She acknowledged that elections through the DPRD are relatively conflict-free, cost-effective, and stable. Furthermore, the selection process focuses on competence and minimizes the cycle of money politics. Furthermore, this model also strengthens the relationship between the executive and legislative branches.

However, on the other hand, the plan to reinstate regional head elections by the DPRD could be considered a political reaction that degrades the democratic rights of civil society. "Of course, there are many other election schemes that deserve consideration as the best options. In this regard, policymakers must revise the law based on research and collaborate with activists and academics," she said.

Aisah hopes the DPR and the government will maintain the direct regional election system. According to her, the open proportional system aligns with the separation of national and local elections as decided by the Constitutional Court. With an open proportional system, the public has the opportunity to assess the performance of parties and politicians within the circles of power and punish those who perform poorly through regional elections.