Gibran Becomes A Vice Presidential Candidate, The Neutrality Of The Constitutional Court Is Questioned

JAKARTA The Constitutional Court (MK) has been in the public spotlight in Indonesia recently. The reason is none other than the granting of a judicial review request for Law No. 7 of 2017 concerning General Elections related to the age limit for presidential and vice presidential candidates.

Indeed, the Constitutional Court did not change the minimum age limit for presidential and vice presidential candidates, namely still 40 years old. However, the institution led by Anwar Usman added a new phrase, namely having or serving as a regional head who was elected through the general election process.

The Constitutional Court's decision immediately became associated with a red carpet for a Gibran Rakabuming Raka. Even though in his lawsuit, the applicant did not clearly mention the name of President Joko Widodo's eldest son, but the public could interpret if the age lawsuit for a presidential and vice presidential candidate was linked to the figure of the Mayor of Solo who was predicted to run in the 2024 presidential election.

The controversy over the decision continues. Because, the Chief Justice of the Constitutional Court, Anwar Usman is the brother-in-law of President Jokowi or the uncle of Gibran. This is what makes the spotlight, especially in terms of ethics, whether it is appropriate for Anwar Usman to be involved in making the decision.

Former Chief Justice of the Constitutional Court Jimly Asshiddiqie once appealed to Anwar Usman not to participate in deciding the request for a judicial review of the presidential and vice presidential age limits to avoid oblique accusations including the Constitutional Court which was granted the Family Court.

He considered that it would be better if the request for judicial review was decided by eight other constitutional judges outside of Anwar Usman. Jimly still saw the potential for dissenting opinion even though only eight constitutional judges were decided.

"It's better for the chairman to resign from handling the case. So it cannot be accused that this has something to do with the family. The rest is left to eight other judges. Not necessarily the same opinion, right. So it seems exciting to have a dissenting. If the decision is dissenting, it means that there is a substantial debate internally. Judges with their respective independence, with their respective beliefs to decide cases, we must respect it," said Jimly.

Whatever the views and opinions of the public, in fact Anwar Usman is still involved in deciding the matter lawsuit for the presidential and vice presidential age limit. In fact, the verdict issued Monday (16/10) was read out directly by Anwar Usman.

Deputy Chairperson of the Gelora Party, Fahri Hamzah, assessed that the Constitutional Court's decision should not be seen as a red carpet for Gibran. According to him, the decision actually opened the door for outstanding young people who had been hampered from running as candidates for the nation's leaders by laws and regulations.

"This should be a concern for all of us. The Constitutional Court's decision is a break for outstanding young people who should be able to become national leaders. It is better if the threshold is also removed, be it the parliamentary threshold or the presidential threshold," he said.

Apart from the matter of the decision related to Gibran or not, in fact, five days after the Constitutional Court's decision, the Golkar Party National Leadership Meeting which was held on Saturday (21/10) officially proposed Gibran's name as the vice presidential candidate accompanying Prabowo Subianto. Sunday (22/10) night, public questions finally answered. The meeting of the general chairmen of the political parties who are members of the Advanced Indonesia Coalition has officially declared the Prabowo Subianto pair Gibran Rakabuming Raka as a presidential and vice presidential candidate in 2024.

Regardless of whether or not Anwar Usman participated in the request for a judicial review of the presidential and vice-presidential age limit because it was not directly related to Gibran's name in the petition, there were bigger problems and would be a credible and independent stake in the Constitutional Court in the future.

Moreover, after KIM declared the Prabowo pair Gibran and the plan will be registered with the General Elections Commission (KPU) on Wednesday, October 25. If the pair promoted by KIM passes verification and is declared a presidential and vice presidential candidate in 2024, then one big question is directed to the Constitutional Court. Is it still appropriate for the Constitutional Court to hear the 2024 election dispute if Anwar Usman still leads?

In accordance with Law No. 7 of 2017 concerning General Elections, the Constitutional Court has the authority to try the Dispute of General Election Results (PHPU) both in the legislative and presidential elections for parties who are not satisfied with the KPU's decision.

Related to this, political experts, Ikrar Nusa Bakti have their own views. According to him, the Constitutional Court is indeed the highest court to decide whether a law is against the constitution or not, and also to try cases that occur in presidential election disputes, legislative elections, DPD, and regional heads.

"The Constitutional Court's decision is fixed and binding, but, if the Constitutional Court's decision regarding who becomes the presidential/cawapres (age limit) is questioned by many people, how can the Constitutional Court be trusted in deciding an upcoming election dispute," he said, Saturday, October 21.

Moreover, many legal experts have questioned the Constitutional Court's decision regarding the age limit for presidential and vice presidential candidates. Ikrar said that in the same lawsuit, the political party and regional head were rejected by the Constitutional Court. However, the court actually granted the lawsuit filed by the student.

"Why was the lawsuit (about the same matter) rejected, why did it (the presidential/vice presidential candidate's age lawsuit which was recently withdrawn by the Constitutional Court) be accepted? If the standing is a student, does he really want to be vice president? It doesn't make sense," he said.

According to him, it is not wrong if the Constitutional Court's decision grants the term limit for the presidential and vice presidential candidates regarding the political interests that want the Mayor of Solo, Gibran Rakabuming Raka to run as a candidate for the 2024 Presidential Election. This is because Gibran, who is the eldest son of President Joko Widodo (Jokowi) is hindered by a minimum age of 40 years.

However, the Constitutional Court has decided that the age limit for presidential and vice presidential candidates remains at 40 years, unless experienced as regional heads. Moreover, continued Ikrar, Chief Justice of the Constitutional Court Anwar Usman is the uncle of Gibran.

Saldi Isra even said why should he rush to decide on a lawsuit about the age of the presidential candidate. Is it really that important? Therefore, it is suspected that the Constitutional Court has abused its power to decide on this age case," he said.

He considered that democracy in Indonesia had actually led to maturity and could reach its peak in the ninth election since the reforms. Meanwhile, the 2024 election is the sixth election since the reformation. This means that there are still three more elections that will make elections in Indonesia truly make substantial democracy mature.

But if in this sixth election there is coercion of the president's son to become a vice presidential candidate, democracy will recede long before the reform period. However, Ikrar emphasized that this does not mean that it is against President Joko Widodo's attitude.

However, democratic figures want to make it clear that making Gibran a vice presidential candidate is not simple, especially since his father is still the Head of State.

"Imagine, if your son competes for a certain position and you become the main judge. How can it be neutral. If Gibran runs, then the competition field is not equal. We don't want to oppose Jokowi, but we want to make him aware. Hopefully Pak Jokowi is aware," concluded Ikrar Nusa Bakti.

Constitutional Justice, Enny Nurbaningsih, revealed that his party could not confirm whether Anwar Usman would try the dispute over the results of the 2024 presidential election which might involve Gibran. He originated that the allegations of conflict of interest addressed to Anwar had not been proven.

"I think (imolation of ethics due to conflicts of interest) is something that hasn't happened yet. We fully submit it to the Constitutional Court. Let us intervene with those (members of the Constitutional Court) who already have high credibility, when we intervened there. Are there really problems related to intervention or related to various kinds of things, we fully submit them. We do not interfere in the work mechanism of the Constitutional Court," he said at a press conference for the establishment of the Constitutional Court Honorary Council (MKMK), Monday, October 23.

Enny stated that so far the Constitutional Court has only tried norms, not tried people as in criminal or civil courts. For this normative reason, they feel that accusations of conflict of interest are not easily proven, so they leave it entirely to the Constitutional Court to prove it.

However, he emphasized that in adjudicating dispute over election results, the Constitutional Court will ensure that constitutional judges are clean from being related to litigants. "We will definitely do our best in dispute over the results of the presidential election. As we have done, the trial is very open, we don't cover anything there," added Enny.

On the other hand, Research Center for Constitutional Studies (Pusako) Andalas University, Feri Amsari, assessed that the Constitutional Court Decision Number 90/PUU-XXI/2023 concerning the age limit for presidential/cawares candidates could be the basis for dispute over the results of the 2024 presidential election, if Gibran manages to qualify as a candidate and manages to win.

"Moreover, some are considered to have violated the constitution but the Constitutional Court's decision is allowed. It is not impossible that it will become a problem one day. It will become a dispute in itself, that the nomination process is fraudulent, thus changing the election results," he said.

According to him, the problem arose because there were various irregularities in the decision that made Gibran able to advance to the 2024 presidential election contestation. Feri explained that at first Gibran was hit by the minimum age requirement of 40 years to advance to become a presidential and vice presidential candidate. However, the Constitutional Court through its decision added the sound of 169 letter q of Law Number 7 of 2017 concerning Elections, pernah menjadi penyelenggara negara yang terpilih melalui pemilu sebagai syarat alternatif dari usia minimum 40 tahun.

The problem, continued Feri, was that two of the five constitutional judges who agreed to the decision did not seem unanimous. Judge Enny Nurbaningsih and Daniel Foekh stated that state officials who can be excluded from the minimum age of 40 years are only governors. Meanwhile, Gibran is still the mayor of Solo.

"The decision (should only be) the governor (which can be excluded from the minimum age of 40 years to run for presidential and vice-presidential candidates). And that could be the material for disputes," said Feri.

He also considered that although there had been a number of reports submitted to the Ethics Council of Constitutional Justices which urged the process of ethical investigations into the judges who decided the case, the results of the ethics trial could not prevent Gibran from advancing in the 2024 presidential election.

"The proven ethical violation cannot cancel the decision of the Constitutional Court that has been handed down. But it is not impossible, the results of the ethical violation decision are the reason to retest, that this is a new condition that can be proven that the last interpretation process was flawed," concluded Feri Amsari.