Measuring The Supreme Court Decision That Will Not Cancel The Victory Of The Jokowi-Ma'ruf Amin Presidential Election

Constitutional Law Expert Yusril Ihza Mahendra (Irvan Meidianto / VOI)

JAKARTA - The Supreme Court (MA) granted Rachmawati Soekarnoputri's lawsuit regarding the determination of the elected candidate pair in the general election. Even so, the Supreme Court's decision did not invalidate Joko Widodo-Ma'ruf Amin's victory in the 2019 presidential election.

Constitutional Law Expert, Yusril Ihza Mahendar said that the Supreme Court decision No. 44 P / HUM / 2019 only materially examines KPU Regulation Number 5 of 2019 concerning the Determination of Selected Candidate Pairs, Determination of Acquisition of Seats, and Determination of Elected Candidates in General Elections.

"The Constitutional Court has decided whether Jokowi will win or not in the 2019 presidential election because it is under his authority. The decision (MA) does not include or mention whether or not Jokowi has won in the 2019 Presidential Election," said Yusril in a written statement received by VOI, Wednesday, July 8th.

According to Yusril, the Supreme Court has absolutely no authority to try the Presidential Election dispute because it has been decided by the Constitutional Court (MK). Moreover, the Supreme Court's decision was only processed on October 28, 2019, or a week after Jokowi-Ma'ruf was inaugurated by the MPR.

Thus, the Supreme Court decision is prospective or applies forward from the date it was decided and does not apply retroactively or retroactively.

Yusril explained that the rules for the Presidential Election which are only followed by two candidate pairs are not regulated in Article 416 of Law 7/2017 on Elections. However, the provisions of Article 7 paragraph 3 PKPU No. 5 of 2019 will refer to the Constitutional Court Decision No. 50 / PUU-XII / 2017 which interprets the provisions of Article 6A of the UUD 45 in terms of only two pairs of Candidates for Presidential and Cawapres Candidates.

Therefore, according to Yusril, in such circumstances what applies is the majority of votes without needing to be repeated to meet the requirements for the distribution of victories in the provinces as stipulated in Article 6A itself. Moreover, the Constitutional Court's decision in judicial review has the same strength as the legal norm, even though the Constitutional Court delegation is not a form of statutory regulation.

"In determining the victory of Jokowi and Kiai Ma'ruf, the KPU referred to the Constitutional Court's decision which firmly rejected the dispute requests submitted by Prabowo Subianto and Sandiaga Uno,"

Yusril Ihza Mahendra

Meanwhile, the Supreme Court decided the PKPU review case by referring to Article 416 of the Election Law which did not regulate it, so that it stated that Article 3 paragraph 7 of PKPU was against the Election Law, "The problem is that the Supreme Court cannot test whether PKPU is against the Constitutional Court Decision or not. Here lies the legal problem, "said Yusril.

Likewise in the context of material review of the norms of Article 158 of Law No. 42 of 2008 on the Presidential Election. The Constitutional Court found that the material content was the same as the norm in Article 416 of Law No.7 of 2017 concerning Elections. Because the regulatory materials tested sound the same, the Constitutional Court's decision on reviewing Article 158 of Law No. 42 of 2008 is mutatis mutandis and also applies to the norms of Article 416 of Law No. 7 of 2007 on Elections.

"Therefore, if there are only two pairs of presidential candidates, then the correct rules will be seen from the point of view of constitutional law. Where the presidential election process will only be carried out in one round, with the candidate who gets the most votes winning," explained the Professor. Constitutional Law.

Rachmawati Soekarnoputri's lawsuit case

It should be noted that the case filed by Rachmawati Soekarnoputri against the KPU was decided by the panel of judges on October 28, 2019. However, the a quo verdict has just been uploaded to the MA website on July 3, 2020.

Quoting an explanation from MA spokesman Andi Samsan Nganro, the new reason for the upload of the decision was because there were many cases still being handled by the Supreme Court. Not to mention the health protocol due to the impact of the corona virus pandemic, as summarized from detikcom.

The Supreme Court's decision granted the lawsuit filed by the founder of the Soekarno Education Foundation, Rachmawati Soekarnoputri, and several other plaintiffs against the KPU. Decision Number 44 P / PHUM / 2019 cancels the KPU regulation regarding the majority vote requirement, if there are two candidate pairs in the presidential election results.

Rachmawati Soekarnoputri believes that Article 3 paragraph (7) of KPU Regulation Number 5 of 2019 concerning the Determination of Elected Candidate Pairs, Determination of Acquired Seats, and Determination of Elected Candidates in the General Election is contrary to Law (UU) Number 7 of 2017 concerning Elections, especially Article 416 verse 1.

In its consideration, the Supreme Court is of the opinion that the KPU, which issued PKPU 5/2019, has made a new norm from the regulations above it, namely Law 7/2019. In addition, the KPU has also expanded the interpretation in article 416 of Law 7/2017.