Constitutional Court Ruling: Elected Legislative Candidates Prohibited from Running in Regional Elections

JAKARTA, KOMPAS – Elected legislative candidates, both at the national and regional levels, can no longer arbitrarily resign to participate in regional head elections.

The Constitutional Court or MK limits the reasons for resignation of elected legislative candidates that can be justified, namely carrying out state duties such as becoming a minister, ambassador, or other state official/public official based on appointment or appointment (appointed officials).

The Constitutional Court prohibits elected legislative candidates from resigning because they want to occupy positions obtained through general elections (elected officials). This is because it violates the constitutional rights of voters as holders of the people's sovereignty.

In relation to this matter, the Constitutional Court (MK) declared that Article 426 Paragraph (1) letter b of Law Number 7 of 2017 on Elections is in conflict with the constitution and conditionally lacks binding legal force as long as it is not interpreted as "resigning due to being assigned by the state to occupy a position that is not through an election."

"Based on the entire explanation of the legal considerations above, the Court is of the opinion that the provisions of Article 426 paragraph (1) letter b of Law No. 7/2017 violate the principle of popular sovereignty as stipulated in Article 1 paragraph (2) of the 1945 Constitution of the Republic of Indonesia, create injustice that is inconsistent with the principles of election administration as regulated in Article 22E paragraph (1) of the 1945 Constitution of the Republic of Indonesia, and fail to provide fair legal protection and certainty as stipulated in Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia," said Constitutional Justice Arsul Sani, while reading the considerations of decision number 176/PUU-XXI/2024 during a session led by Chief Justice Suhartoyo, at the Constitutional Court Building, Jakarta, Friday (21/3/3025).

The Constitutional Court partially granted the judicial review request of Article 426 paragraph (1) of the Election Law submitted by three students, namely Adam Imam Hamdana, Wianda Julita Maharani, and Adinia Ulva Maharani.

The article regulates several conditions that necessitate the replacement of elected legislative candidates. Among them are if the elected candidate passes away, resigns, no longer meets the qualifications to serve as a legislative member, or is proven to have committed an election crime such as vote-buying or document forgery based on a final and legally binding court decision.

In the considerations read by Deputy Chief Justice of the Constitutional Court, Saldi Isra, the Constitutional Court also took into account the numerous elected candidates who resigned due to running for regional head positions or becoming ministers, ambassadors, or for other personal reasons.

Although resignation is the right of elected legislative candidates, the mandate given by the people through votes in the election should be the primary consideration if one wishes to step down for any reason. In the context of elections, the people's votes represent a crucial embodiment of democracy and must not be disregarded, even a single vote.

So far, the Constitutional Court has observed the resignation of elected legislative candidates citing reasons such as running in regional elections or other reasons that are difficult to justify. Although this issue pertains to the practice of applying norms, according to the Constitutional Court, the root of the problem lies in the ambiguity of the boundaries within the provisions of Article 426 paragraph (1) of the Election Law.

The provision does not provide any limitations in the resignation of elected candidates, either in terms of conditions or reasons stated. As a result, election organizers will simply process the resignation regardless of the reasons behind it.

"According to the Court, this will create legal uncertainty, especially for voters who have chosen the candidate in question, which will then create injustice that is contrary to the principles of general elections. Thus, according to the Court, in order to maintain the principle of people's sovereignty which is realized through direct voting in general elections, the resignation of the elected candidate must have clear limits," said Saldi.

Arsul said that the Constitutional Court has taken the position that elected legislative candidates who will run as regional heads do not violate the principle of people's sovereignty as stated in the decision 12/PUU-XXII/2024. Because, as elected candidates who have not been inaugurated, there are no constitutional rights and obligations that have the potential to be misused by prospective members of the DPR, DPD, and DPRD.

However, the Constitutional Court then observed the phenomenon of the resignation of elected candidates from the 2024 legislative elections. According to Arsul, this situation illustrates the unhealthy practice of democracy in a number of regions which does not rule out the possibility of becoming transactional. This degrades the realization of the principle of people's sovereignty which is the essence of the election.

"Thus, the Court is of the opinion that an elected candidate who resigns because he wants to run in the regional head/deputy regional head general election is a serious violation of the constitutional rights of voters as holders of the people's sovereignty," said Arsul.

The Constitutional Court is aware that the advancement of elected legislative candidates in regional elections could be an assignment from political parties. In relation to this, political parties are expected to continue to respect the voice of the people who have chosen the candidates concerned as legislative members.

Political parties, Arsul continued, should have looked for competent candidate figures from the start who have a good track record to be nominated as legislative members or regional head candidates.

"Political parties need to sort and select their best cadres or figures/figures who are considered suitable to occupy positions in legislative institutions or to occupy executive positions at the regional level. So, cadres or figures who are prepared as legislative candidates with cadres or figures who are prepared to become regional head candidates should be different candidates or figures," said Arsul when reading the considerations.

Arsul further said that the Constitutional Court views the role of political parties as very large and central in determining leadership at the national and regional levels, both in the legislative and executive realms.

For this reason, the Constitutional Court encourages every political party to have good cadre planning from the start by creating a blueprint in facing the legislative and regional elections held every five years which are likely to be held close together.

In such planning, cadres or figures for legislative candidates and regional head candidates have been outlined.

"Thus, there will be no more replacement of elected candidates by sacrificing the votes and trust of the people who are voters, because each cadre or figure has been assigned by the political party to compete in the legislative election or the regional head/deputy regional head election which has been carefully designed," said Arsul.