Passing Gibran, Yusril Is Sure That The KPU Will Not Violate Ethics

Yusril Ihza Mahendra became the attorney for candidate pair Prabowo-Gibran to face a civil lawsuit at the Central Jakarta District Court. (Instagram @yusrilihzamhd)

JAKARTA - The head of the Prabowo-Gibran Defenders Team, Yusril Ihza Mahendra, emphasized that no ethical violations were committed by the Commissioner of the General Elections Commission (KPU) in processing Gibran Rakabuming Raka's candidacy as vice presidential candidate.

This was stated by Yusril through his written statement, Sunday, December 24 in response to reports from Demas Brian Sicaksono, PH Hariyanto and Rumondang Damanik to the Election Honorary Council (DKPP) which began trial on Friday, December 22.

The reporters argued that the KPU Commissioners allowed Gibran to follow the nomination stage process by ignoring the principle of legal certainty. The reported party also arbitrarily appointed Gibran as the vice presidential candidate accompanying Prabowo. Whereas the KPU commissioner knew that during the nomination process the age limit for the presidential candidate pair was 40 years. The KPU only changed the regulation after the nomination process was complete. The reported parties stated that the actions were contrary to the principle of legal certainty which was implicitly ordered by Article 11 letter a of the DKPP Regulation No. 2/2017 concerning the Election Implementation Code of Ethics.

The ethical norm that is used as the argument for the complainants is Article 11 letter a of the DKPP Regulation which provides ethical obligations to the KPU commissioners to take action in the context of holding elections which are strictly ordered by laws and regulations. Meanwhile, PKPU itself strictly regulates the requirements for presidential and vice-presidential candidates for at least 40 years.

Since the strict regulations have not been changed and the KPU continues to process Gibran's candidacy, the reporters argued that the KPU commissioners had committed ethical violations. The complainants asked the DKPP to impose ethical sanctions in the form of dismissal as KPU commissioners.

Yusril assessed that the fundamental problem for DKPP assessed that there was a violation of ethics on the norms of Article 11 letter a of the DKPP Regulation was how to expressly interpret the word ordered by the laws and regulations. If it is explicitly interpreted as limitative to the PKPU, the argument seems to be true. The KPU regulation explicitly states that the registration of the vice president can be processed if it is 40 years and over. If the process continues, then the commissioners can be subject to administrative legal sanctions, in addition to being subject to ethical sanctions.

However, Yusril continued, the interpretation of the implementation of the applicable laws and regulations cannot be limited to only PKPU. Above the PKPU there are still PP, Law and the 1945 Constitution. The KPU processes Gibran's candidacy, not an omission that is a passive act, but an active action.

The KPU commissioners acted thus based on the Constitutional Court Decision No. 90/PUU-XXI/2024 which has changed the provisions of Article 117 of the Election Law. The age of the presidential and vice-presidential candidates has been interpreted by the Constitutional Court to be under 40 years old if the candidate has been and/or is currently serving in the position chosen through elections, including the Pilkada," he said.

The Constitutional Court's decision is based on Article 24C of the Constitution 45 which states that the Constitutional Court's decision is final and is valid immediately since it was pronounced in a trial that is open to the public. With the Constitutional Court's decision, the norm of Article 169 letter q of Law no. 7 of 2017 concerning Elections has changed since that date, without having to wait for the President and the DPR to amend the Election Law.

"The KPU has not been able to change its own regulations because it collided with the election stage schedule which must be obeyed. In addition, changes in PKPU require consultation with the DPR, while at that time the DPR was in recess," explained Yusril.

In such a situation, the KPU has no choice but to implement the Constitutional Court's Decision and ignore the PKPU it made itself. The Constitutional Court's decision has an equal position to the law, so that the position is higher than the PKPU.

In such a context, the KPU chooses to choose to obey the Constitutional Court's Decision, which has a higher position than the PKPU. If the KPU obeys its own regulations that have not been changed and ignores the Constitutional Court's Decision, the KPU actually acts against the principle of legal certainty as ordered by Article 11 letter a of DKPP Regulation No. 2/2017 and disrupts the stages of the implementation of the General Election. Such actions can actually be categorized as ethical violations and can be subject to dismissal sanctions by DKPP.

"Based on these reasons, we are sure that DKPP will reject the reports of Demas Brian Wicaksono, Imam Munandar and Rumondang Damanik because they have no legal basis and have no ethical basis at all. The KPU has carried out the nomination process of Gibran based on the Constitutional Court's Decision, and that is in accordance with the principle of legal certainty. All KPU commissioners do not commit any ethical violations as argued by the reporters," concluded Yusril.