2016 Global Review of Constitutional Law

from Basuki Hariman, a major player in the
beef import business. It was suspected that
the bribes were given as an attempt to influence
Court decision in the judicial review
of the statutory regulation that governs the
beef import industry.
This case is the sequel of the Animal Health
and Husbandry Law I case. 14 On August
25, 2010, the Court under the chairmanship
of Mohammad Mahfud issued a decision
on the judicial review of Law No. 18 of
2009 on Animal Health and Husbandry.
The crux of the matter is the Law allowed
import of beef and cattle from disease-free
zones, regardless of the disease status in
the country as a whole. The Court declared
that the phrase, “a zone within a country” in
art 59(2) of the Law was unconstitutional.
The Court considered that the import of live
animals from “a country or a zone within a
country” is the manifestation of imprudent
and dangerous policy because the disease
may spread into the area from unsafe parts
of the country.
In 2014, the government enacted Law No.
41 of 2014, which reinstated the provision
that allows animals imported to Indonesia
to come from a country or a zone within
a country that already fulfills the health
standard. The petitioner challenged the constitutionality
of the Law and argued that the
zone system would violate the constitutional
rights of farmers, traders in livestock, veterinarians,
and consumers of animal products.
The Court considered that after the issuance
of the Animal and Husbandry Law I case,
the Parliament had revised the zone system
requirement. Thus, the Court opined that
there is a difference between the object of
norms that have been reviewed in the first
case and the second instance. The Court
decided that Law No. 41 of 2014 is “conditionally
unconstitutional”; that the implementation
of a zone system is allowed when
there is urgent domestic demand in which
the Government needs to import from other
countries.
The Court reached the decision unanimously,
and Justice Patrialis Akbar casted out his
vote for the final deliberation meeting on
November 21, 2016. The Court, however,
did not announce the decision until February
7, 2017. It was not clear how much
influence Akbar had to sway the Court’s decision.
The fact of the matter is nine Justices
made the ruling and Akbar only had one
vote. Regardless of what happened behind
the scenes, the arrest of Patrialis Akbar has
tainted the legitimacy of the Court’s decision
in this case.
The Abdullah Puteh case (Decision No. 51/
PUU-XIV/2016)
In the last term, the Court decided two
major cases related to the electoral process.
In the first instance, the Court allowed
Abdullah Puteh, who has been sentenced to
10 years imprisonment, to participate in the
2017 Aceh Province Governor Election.
During his first term as the Governor of
Aceh Province, Puteh was charged with
corruption concerning the purchase of two
MI-2 helicopters for Aceh Province. 15 In
2004, Puteh began serving his ten-year
sentence. But later, Puteh was out on parole
before the full sentence was served. Having
stayed in the political wilderness for more
than a decade, Puteh was planning a comeback
with a run in the 2017 Aceh Governor
Election. Nevertheless, Article 67 (2) (g) of
Law No. 11 of 2006 on Aceh Governance
prohibited candidates for governor/deputy
governor who had been sentenced for a
crime punishable by a term of imprisonment
of at least five years, except for treason
or political crimes that have been granted
amnesty. Puteh then challenged the constitutionality
of the Aceh Governance Law to
the Court.
The Court granted a decision for the claimant.
The Court held that Article 67 (2) (g)
of Law No. 11 of 2006 concerning Aceh
Government is “conditionally unconstitutional”
as long as it does not provide an exception
for former convicts who openly and
honestly inform the public that he or she
is an ex-convict. The Court ruling means
that Puteh can participate in the 2017 Aceh
Governor Election as long as he notifies the
public that he was an ex-convict.
The Voting Rights for Mentally Disabled
Persons case (Decision No. 135/PUU-
XIII/2015)
In the second major case that related to the
electoral process, the Court dealt with the
issue of voting rights for mentally disabled
persons. Law No. 8 of 2015 on the Election
of Governor, Head of Regency, and Mayor
stipulates that mentally disabled or disordered
persons have no right to vote (Art 57
§3a).
Some NGOs representing mentally disabled
persons challenged the law and argued
that the prohibition violates the constitutional
rights of mentally disabled persons
to participate in the general election. They
argue that there are different categories of
mentally disabled or disordered individuals
and each category has its definition, which
does not always lead to incapacity to cast a
vote.
The Court ruled that indeed there is a
distinction between mentally disabled and
mentally disordered persons. Nevertheless,
the Law did not explain how to assess the
distinction between mentally disabled or
disordered persons. The Court considered
that the General Election Commission is
not equipped to evaluate the capacity of
mentally disabled or disordered persons as
potential voters. The Court held that not all
individuals who are experiencing mental
disorders or memory disorders would lose
the ability to cast a vote. Moreover, the
Court considered that the absence of guidelines
and institutions for psychiatric analysis
of the potential voters is a violation of constitutional
rights. The Court finally held that
Article 57 (3) (a) is unconstitutional unless
it was interpreted in the Court’s understanding
that mentally disordered is not defined
as permanent impairment of mental health,
which removes the ability for someone to
cast a vote.
14
Constitutional Court Decision No 137/PUU-VII/2009 (the Animal Health and Husbandry Law I case)
15
In 2004, Puteh challenged the constitutionality of the Anti-Corruption Law that was used to charge him, but the Court rejected Puteh’s claim. See the
Constitutional Court Decision 069/PUU-II/2004
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