Regional Officials And TNI-Polri Can Be Convicted If They Violate Neutrality In The 2024 Pilkada

Illustration of constitutional court hearings (Diah Ayu/VOI)

JAKARTA - The Constitutional Court (MK) granted case lawsuit number 136/PUU-XXII/2024 regarding neutrality of regional officials and the TNI/Polri in the 2024 Regional Head Election (Pilkada). In its decision, the Constitutional Court emphasized that regional officials and the TNI/Polri who are proven to have violated neutrality in the elections will be subject to a maximum of 6 months in prison.

"Granted the petitioner's application in its entirety," said Chief Justice of the Constitutional Court Suhartoyo when reading the verdict in the courtroom at the Constitutional Court building, Jakarta, Thursday, November 14.

The judicial review is related to Article 188 of Law Number 10 of 2016 concerning the Second Amendment to Law Number 1 of 2015 concerning Stipulation of Government Regulations in Lieu of Law Number 1 of 2014 concerning the Election of Governors, Regents, and Mayors into Laws (UU Pilkada).

According to the Constitutional Court, the norm of Article 188 of the Pilkada Law is contrary to the 1945 Constitution. In addition, the article does not have binding legal force as long as it is not interpreted, every state official, regional official, state civil servant (ASN) official, TNI/Polri member, and village head or other designation/lurah who deliberately violates the provisions as referred to in Article 71.

"He was sentenced to a minimum imprisonment of 1 month or a maximum of 6 months and/or a fine of at least Rp. 600,000 or a maximum of Rp. 6,000,000," said Suhartoyo.

Previously, Article 188 of the Pilkada Law stated, "every state official, ASN official, and village head or other designation/lurah who deliberately violates the provisions as referred to in Article 71, shall be sentenced to a minimum imprisonment of 1 month or a maximum of 6 months and/or a fine of at least Rp. 600,000 or a maximum of Rp. 6,000,000".

The Constitutional Court assesses that the norms of Article 188 of the Pilkada Law have violated the principles of the legal state and guarantees of fair legal certainty rights so that they are contrary to the norms of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution as argued by the applicant.

Related to this, the Constitutional Court changed the text of Article 188 of the Pilkada Law by adding legal subjects to regional officials and the TNI/Polri. Thus, Article 188 of the Pilkada Law reads, "every state official, regional officials, ASN officials, members of the TNI/Polri, and village heads or village heads who deliberately violate the provisions as referred to in Article 71, shall be sentenced to imprisonment for a minimum of 1 month or a maximum of 6 months, and/or a fine of at least Rp. 600,000.00 or a maximum of Rp. 6,000,000".

The Constitutional Court views it as important to add the phrase'regional officials' and the phrase'member of the TNI-Polri' in Article 188 of Law 1/2015 in accordance with the principles of the rule of law and to create fair legal certainty as the norms of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution.

"In the perspective of constitutional or constitutionalism, the rules of the game that are set must guarantee fair legal certainty. This guarantee is one of the basic rights that must be given by the state to its people," concluded Constitutional Justice Arief Hidayat.