The Constitutional Court, as one of the judicial power institutions, has the features of protecting and maintaining the 1945 Indonesian Constitution through diverse attribution authorities. Recently, the Constitutional Court has become the object of public dialogue due to numerous events, specifically on the 2024 presidential election dispute. Henceforth, a comprehensive illustration of Constitutional Court duties and procedures, with additional insight of precedent of disputes adjudicated by the Constitutional Court would be favorable for public knowledge in light of the recent issues. Find out more of our insights about this topic Legal Brief publication.
2. Recent Constitutional Court Decision
A decision where it declares that Articles 14 and 15 of the
Criminal Code (KUHP), which prohibit broadcasting false
news or announcements that cause riots, contradict the
1945 Constitution.
Background
A H R P L e g a l B r i e f
Indonesia’s Energy Solar Potential
“303 academics and civil society figures submitted an amicus curiae, which indicates that we want to become
friends with the court and support the judges.”
Sulistyowati Irianto – Professor of Indonesia University
Source: https://www.cnnindonesia.com/nasional/20240328121413-617-1079983/303-akademisi-ajukan-
amicus-curiae-minta-mk-adil-di-sengketa-pilpres
A decision where it declares changes in the age
requirements for vice president stipulated in Article 169 (q)
of Law No. 7/2017. Therefore, allowing Gibrang
Rakabuming to run as a vice presidential candidate in the
2024 presidential election.
Decision No. 78/PUU-XXI/2023
Decision No. 90/PUU-XXI/2023
Recently, the Constitutional Court has drawn public attention by issuing decisions related to the issues that has
become subjects of public dialogue lately.
Public attention to the Constitutional Court has surged due to the dismissal of the constitutional court chairman
on 7 November 2023 and the dispute over the results of the 2024 Presidential Election. These disputes have
intensified, among other things, due to the unprecedented movements of college professors and civil society
figures, who are imparting support and input by submitting third-party letters regarding opinions on adjudicated
cases aimed at ensuring judge impartiality (amicus curiae). The expectation is that the Constitutional Court will
issue a great decision.
Understanding the Constitutional
Court: Composition, Powers, and
Precedents
Given the recent surge in public attention
towards the Constitutional Court, providing
a legal overview pertaining to its
establishment, the composition of its
judges, its powers, and the precedents of
its decisions would greatly enhance the
public's understanding.
The Constitutional Court (MK) is expected to continue to fulfill its
functions and goals, namely as the guardian of the constitution, the sole
interpreter of the constitution, the guardian of democracy, the protector
of citizens' constitutional rights, and the protector of human rights.
A
B
Source: Janedjri M. Gaffar, Peran Putusan Mahkamah Konstitusi dalam Perlindungan Hak
Asasi Manusia terkait Penyelenggaraan Pemilu, Jurnal Konstitusi Vol. 10 No. 1, Maret 2013.
C D
Constitutional Court has a main duty to maintain and protect the
constitution.
Purpose of Constitutional Court Establishment
Consideration (b) of Law No. 24/2003
3. A H R P L e g a l B r i e f
Institutions that Nominate Constitutional Court Judges
Constitutional Court are proposed 3 (three) by the Supreme Court, 3 (three) by the Dewan
Perwakilan Rakyat/People's Representative Council ("DPR"), and 3 (three) by the President, to
be appointed by Presidential Decree.
Requirement for Constitutional Court Judges
Constitutional Court must have integrity and an unblemished character, be fair, statesmanlike,
knowledgeable in constitutional law and state governance, and must not hold concurrent positions as
state officials.
Source: Article 24C (3) of the 1945 Constitution of the Republic of Indonesia Jo. Article 18 (1) Law No. 24/2003
Source: Article 24C (4) of the 1945 Constitution of the Republic of Indonesia
Selection of Constitutional Court Judges
Before being appointed by the President, constitutional judges must first undergo a fitness and
propriety test conducted by an Expert Panel. In this regard, the Supreme Court, DPR, and/or the
President each propose candidate constitutional judges to the Expert Panel, up to a maximum of
3 (three) times the number of constitutional judges required for the fitness and propriety test.
Source: Article 18A (1) and (2) Law No. 24/2003
ARRANGEMENT AND SELECTION OF
CONSTITUTIONAL COURT JUDGES
4. Art. 24C (1) of the Indonesia Costnitution
AUTHORITIES OF THE CONSTITUTIONAL COURT
Constitutional Court has the authority to adjudicate at the
first and final levels, with its decisions being final and
binding, to review laws against the Constitution, decide
disputes over the authority of state institutions whose
authority is granted by the Constitution, decide the
dissolution of political parties, and decide disputes over the
results of general elections.
A H R P L e g a l B r i e f
Constitutional Court is an institution of judicial power.
Therefore, the Constitutional Court is bound by judicial
power principle namely, independent and loose from any
institution’s interference in adjudicating disputes.
General Elucidation of Law No. 24/2003
Adjudicating Authority
Constitutional Court Authorities
Other Authorities
Art. 24C (2) of the Indonesian Constitution
Constitutional Court shall issue decision upon the People's
Representative Council’s opinion regarding alleged
constitution violations by the President and/or Vice
President.
Constitution Violation by President and/or Vice President
1. Betrayal of the state.
2. Corruption.
3. Bribery.
4. Serious crimes.
5. Disgraceful act.
6. No longer qualified as President and/or Vice President.
Art. 10 (2) of Law No. 24/2003
Constitutional Court is a judicial power
institution who uphold law and justice.
Art. 2 of Law No. 24/2003
While carrying out its authority, the
Constitutional Court has power to summon
state officials, government officials, or
community to provide testimony.
Art. 11 of Law No. 24/2003
5. General Elections Commission/ Komisi Pemilihan Umum is
abbreviated as “KPU”.
Constitutional Court/ Mahkamah Konstitusi is abbreviated as “MK”.
General Election Supervisory Agency/ Badan Pengawas
Pemilihan Umum is abbreviated as “Bawaslu”.
Applicant means presidential and vice presidential candidates
Respondent means KPU.
Relevant Party means presidential and vice presidential candidates
who have an interest in the Applicant’s application.
Application means application to annul the KPU’s presidential
election results submitted by Applicant.
Definition and Abbreviation of Terms in Presidential Election Dispute Hearing Procedure
CC Reg. No. 4/2023
Applicant shall file
Application with its evidence
at the latest of 3 days after
the issuance of KPU’s
presidential election results
and along with the evidence
Application
Applicant may withdraw the
Application at the latest at
the final stage of the
hearing.
Relevant Party may file
application to involve in the
presidential election dispute.
Relevant Party’s
Application
MK renders or rejects the
Relevant Party’s application.
Preliminary examination
conducted at latest of 4 days
after Applicant’s Application is
recorded in the registration.
Preliminary
Examination
Preliminary examination
conducted to check the
completeness and clarity of
the Application substance, as
well as ratifying the
Applicant’s evidence.
Bawaslu shall file statement
with its evidence at the latest
of 1 day before hearing that
scheduled to hear the
Bawaslu’s statement.
Bawaslu’s
Statement
Respondent shall file
response with its evidence
over Applicant’s
Application and submitted
it at the latest of 1 day
before hearing that
scheduled to hear the
Respondent’s response.
Respondent’s
Response
Relevant Party’s
Statement
If MK grants the Relevant
Party’s application, Relevant
Party shall file statement
with its evidence at the latest
of 1 day before hearing that
scheduled to hear the
Relevant Party’s statement.
Case examination includes
examining Applicant’s
Application, Respondent’s
response, Relevant Party
and Bawaslu’s statement,
ratifying and examining
evidence.
Case
Examination
MK Decision is rendered
amicably or based on vote.
Decision
If MK Decision is based on
vote, dissenting opinion shall
be included in the MK
Decision.
Evidence consists of written evidence,
involved parties’ statement, witness and
expert testimony, other party’s testimony,
other evidence, and/or indicative evidence.
If Applicant’s Application is legally justified, the
MK Decision grants the Applicant’s Application
and annuls the presidential election results,
including determining the new presidential
election results based on recapitulation of the
correct votes.
Presidential Election Dispute Procedure
A H R P L e g a l B r i e f
PRESIDENTIAL ELECTION DISPUTE HEARING
PROCEDURE
6. MK Decision No. 062/PHPU-B/II/2004
Applicant
H. Wiranto, S.H – Presidential Candidate
Ir. H. Salahuddin Wahi – Vice Presidential Candidate
Respondent KPU Dispute
Object
Presidential
Election
Results of
2004
Relevant
Party
Megawati S. – Presidential Candidate
Hasyim Muzadi – Vice Presidential Candidate
M. Amin Rais – Presidential Candidate
Siswono Yudhohusodo – Vice Presidential Candidate
Susilo Bambang Y. – Presidential Candidate
M. Yusuf Kalla – Vice Presidential Candidate
Hamzah Has – Presidential Candidate
Agum Gumelar – Vice Presidential Candidate
A discrepancy recapitulation results arise from electoral vote calculation conducted between KPU province and KPU district/regency, thus resulting in an unknown 2.513.881
electoral votes.
1)
MK Decision
C
The number of the presidential election ballots is less than the voter number, thus Applicant’s 5.434.660 received votes are lost as detailed below:
West Java: 1.038.855 votes
Central Java: 752.552 votes
East Java: 768.339 votes
Banten: 466.045 votes
South Sumatera: 963.661 votes
Gorontalo: 4.084 votes
West Kalimantan: 5.306 votes
Jakarta: 348.878 votes
Riau: 145.991 votes
Riau Islands: 250.476 votes
Aceh: 131.911 votes
South Sulawesi: 224.881 votes
Bali: 7.983 votes
Central Sulawesi: 10.206 votes
East Kalimantan: 37.411 votes
East Nusa Tenggara: 35.792 votes
Southeast Sulawesi: 32.126 votes
West Papua: 25.895 votes
South Kalimantan: 21.228 votes
Southeast Sulawesi: 33.882 votes
Jambi: 19.705 votes
West Nusa Tenggara: 16.965 votes
Bangka Belitung Islands: 15.912 votes
Central Kalimantan: 6.420 votes
North Maluku: 5.519 votes
Yogyakarta: 64.364 votes
2)
MK Justice’s Legal Consideration
B
MK rejects Applicant’s Application. causing
KPU’s recapitulation results of the 2004
presidential and vice presidential elections
remain valid. Therefore, Susilo Bambang
Y. and M. Yusuf Kalla are the 2004
Indonesia President and Vice President.
MK DECISION ON 2004 PRESIDENTIAL ELECTION
DISPUTE IN INDONESIA
There are no difference between the number of the voting voter and the received vote number.
West Java, Central Java, Riau, Aceh, North Sulawesi, South Kalimantan, Jambi, West Nusa Tenggara, North Maluku, Gorontalo, West Kalimantan, Central Sulawesi,
Southeast Sulawesi, and Yogyakarta
East Java
Applicant cannot prove its argumentation that he lost the mentioned number of votes.
Banten, East Nusa Tenggara, West Papua, Central Kalimantan, and Bali
South Sumatera, Riau Islands, South Sulawesi, and East Kalimantan
Jakarta
Applicant cannot prove that the difference between the number of the voting voters and the received vote number is related to the Applicant’s loss of votes.
The difference between the results of voter number plus valid vote and the results of valid vote plus invalid voter’s votes arise due to an error recapitulation, and it has
been corrected based on the minutes of correction. Furthermore, Applicant’s evidence does not prove its argumentation as well.
Based on the recapitulation data, the received votes are not reducing.
A Applicant’s Argument
A H R P L e g a l B r i e f
7. MK did not find any violation of neutrality principle conducted by ASN.
Applicant failed to prove the connection among the increasing salaries, early payment of thirteen salaries, distribution of government social assistance,
and Program of Zero Down Payment House for ASN, with electoral vote.
Applicant failed to prove the connection among discrimination in law enforcement with electoral vote.
Applicant failed to prove the connection among media control with electoral vote.
It is normal for Polri to promote the success of government programs.
In regard to Applicant received 0 votes in several polling stations, its does not mean fraud has been occurred because Relevant Party received 0 votes
in several polling stations as well.
Bawaslu has carried out its power to follow up on every complaint.
In regard to the invalid recapitulation and fake polling stations, it was found that Applicant did not file any complaint to Bawaslu. Therefore, MK could
not agree with the Applicant’s argument.
MK DECISION ON 2019 PRESIDENTIAL ELECTION
DISPUTE IN INDONESIA
Applicant’s Argument
MK’s Legal Consideration
According to the hearing examination, it was found that, among others, as follows:
According to the above MK’s legal considerations, Applicant’s argument was not legally proven, thus, MK rejected Applicant’s application. Henceforth, the
Dispute Object remains legally valid., and the relevant Party was determined as the elected of 2019 Indonesian President and Vice President.
MK Decision No. 01/PHPU-PRES/XVII/2019
H. Prabowo Subianto – Presidential Candidate
Sandiaga Uno – Vice Presidential Candidate
Applicants
KPU
Respondent Dispute Object
Presidential Election
Results of 2019
Joko Widodo – Presidential Candidate
Ma’ruf Amin – Vice Presidential Candidate
Relevant Parties
Respondent disobeyed Bawaslu’s recommendation.
Fake polling station.
Applicant received 0 votes in several polling stations.
Invalid recapitulation.
Abuse action using bureaucracy and State-Owned Enterprise/ Badan Usaha Milik Negara (“BUMN”)
• Minister, Regional Government, and ASN were not neutral.
• Regent was found supporting Relevant Party.
• Bank BNI was found supporting visit costs of Relevant Party.
• Governor and Regent were found supporting Relevant Party.
• Indonesian National Police/ Kepolisian Negara Republik Indonesia (“Polri”) and State Intelligence Agency/ Badan Intelijen Negara (“BIN”) were
found directly/indirectly entering the winning team for Relevant Party.
• Polri was found supporting Relevant Party.
• Polri was found promoting the success of government programs.
During the presidential election period, fraud occurred using diverse methods, among others, as follows:
Qualitative-bases arguments
Misuse of Government Program and National Revenue and Expenditure Budget/ Anggaran Pendapatan dan Belanja Negara (“APBN”)
• Increasing the salaries of State Civil Servants/ Aparatur Sipil Negara (“ASN”).
• Providing early payment of thirteen salaries.
• Distributing government social assistance.
• Preparing Program of Zero Down Payment House for ASN.
Media control
Media owner is part of the applicant’s campaign team.
Discrimination in law enforcement
Responsive law enforcement towards parties that support Applicant.
Quantitative-based arguments
A H R P L e g a l B r i e f
8. Art. 24C (1) UUD 1945
PROCEDURES OF REVIEWING LAWS AGAINST
THE INDONESIAN CONSTITUTION
The Authority of the MK in Examining Laws
The Procedure and Conduct of Legislative Examination Sessions
MK Reg. 06/PMK/2005
Procedural Guidelines for Legislative Examination Cases
Closed Plenary Meeting
Examination of Correction
and Completeness of the
Application
Filling a Case
Administrative
Requirements
Examination
Completed Requirements
Examination
Registration to Buku
Registrasi Perkara
Konstitusi (BRPK)
Notification to the
Applicant
Preliminary Examination
• Authority of the MK
• Legal Standing
• The Substance of the
Request for Evidence
Public Open
Plenary Session
Examination
Public Open Session for
Pronouncement of Verdict
Delivery of Copies of the
Verdict to the Parties
Submission to
the MK
Electronic
Submission
Incomplete
Requirements
Examination
7 (seven) days
Closed Plenary Meeting Incomplete:
• The
applicant is
notified for
rectification
• Rectification
time limit is
14 days
Completeness
and Clarity of
the Application
Public Open Plenary
Session Examination
A H R P L e g a l B r i e f
In addition to having the authority to adjudicate disputes over the authority of state institutions whose authority is granted by the Indonesian
Constitution, decide on the dissolution of political parties, and settle disputes regarding the results of general elections, the MK also has the
authority to examine laws against the Indonesian Constitution.
9. MK REVIEW DECISIONS
Rejected
Decision No. 90/PUU-XXI/2023
1) Applicant: Almas Tsaqibbirru .
2) Article Under Review: Article 169 (q) of Law No.
7/2017 concerning General Elections.
3) Articles for Review: Article 27 (1), Article 28D (1),
Article 28D (3), and Article 28I (2) of the Indonesian
Constitution.
4) Consideration: The positions of the President and Vice
President, according to reasonable logic, are less
relevant to be associated solely with the age
requirements of presidential and vice presidential
candidates. The Court assessed that experienced
state officials, such as members of the DPR, members
of the DPD, members of the DPRD, Governors,
Regents, and Mayors, are indeed eligible to participate
in national leadership contests as candidates for
President and Vice President in general elections,
even if they are under 40 years of age.
5) Decision: Declares Article 169 (q) of Law No. 7/2017
concerning General Elections to be in contradiction
with the Indonesian Constitution.
Decision No. 100/PUU-X/2012
1) Applicant: Marten Boiliu.
2) Article Under Review: Article 96 of Law No. 13/2003
concerning Manpower
3) Article for Review: Article 28D (2) of the Indonesian
Constitution.
4) Consideration: Wages and all payments incurred from
employment are the rights of the laborer that must be
protected as long as the laborer does not engage in acts
detrimental to the employer. Hence, it cannot be
extinguished due to the passage of time.
5) Decision: Article 96 of Law No. 13/2003 concerning
Manpower to be in contradiction with the Indonesian
Constitution.
Decision No. 152/PUU-XXI/2023
1) Applicant: Rega Felix
2) Article Under Review: Article 54 of Law No. 24/2003
concerning the MK.
3) Article for Review: Article 28D (1) of the Indonesian
Constitution
4) Consideration: The function of requests for information and
evidence is to fulfill the needs of the Court (not the parties)
in obtaining relevant and adequate information, particularly
relating to, among others, academic writings and
discussions on draft laws to be used as a basis for
assessing the constitutionality of laws or parts of laws
requested for review, so that the Court can make a proper
decision based on evidence and the judge's conviction,
unless the requests and evidence submitted by the
Applicant are deemed sufficient.
5) Dictum: Rejects the petition of the applicant in its entirety.
Decision No. 114/PUU-XX/2022
1) Applicants: Riyanto, Nono Marijono, Ibnu Rachman
Jaya, Yuwono Pintadi, Demas Brian Wicaksono, and
Fahrurrozi
2) Article Under Review: Article 168 (2) of Law No.
7/2017 concerning Elections
3) Basic Articles: Article 18 (3) and Article 19 (1) of the
Indonesian Constitution
4) Consideration: In choosing the electoral system that
forbids voters from determining their choice ensuring
that the selection of candidates is entirely determined
by political parties; such action would contradict the
essence of people’s sovereignty as stipulated in Art. 1
(1) the Indonesian Constitution. Conversely, if the
selection of candidates is solely determined by the
voters, it would undermine the role of political parties
as participants in the general election authorized to
nominate candidates for the House of Representatives
(DPR) and Regional Representative Councils (DPRD).
5) Decision: Rejects the petition of the applicants in its
entirety.
Granted
A H R P L e g a l B r i e f
10. CONCLUSION
A
According to MK Decision No. 062/PHPU-B/II/2004 and MK Decision
No. 01/PHPU-PRES/XVII/2019, method in the presidential election
disputes are:
MK declares such fraud has occurred based on the actual missing numbers of the
electoral votes.
If the applicant argues that fraud has occurred, the applicant should prove that the fraud
is connected to the electoral vote and the actual missing numbers of the applicant’s vote.
Fraud that causes missing electoral vote numbers at a particular polling station does not
mean such fraud occurs at every polling station. Therefore, the applicant should prove the
polling station area in which the electoral vote numbers are missing.
Applicant should prove the constitutional losses arising from the reviewed regulation.
Applicant should prove that the reviewed regulation violates the Indonesian
Constitution.
If regulation violates the Indonesian Constitution, MK will declare such law invalid,
either a specific article or the whole regulation.
According to Point A above, does MK implement the same grounds in adjudicating the 2024
Presidential Election?
B
According to MK Decision No. 90/PUU-XXI/2023, MK Decision No.
100/PUU-X/2012, MK Decision No. 114/PUU-XX/2022, MK
Decision No. 152/PUU-XXI/2023, method in the judicial review
disputes are:
A H R P L e g a l B r i e f
11. We will continue to follow the developments on this topic and provide additional information as it
becomes available. If you have any questions on this topic, please contact:
This publication has been prepared by AHRP for educational and informational purposes only. The information contained in this publication is not
intended and should not be construed as legal advice. Due to the rapidly changing nature of law, AHRP makes no warranty or guarantee
concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it
applies to your circumstances before deciding to take any action.
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