https://dinastires.
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DOI: https://doi.
org/10.
38035/jlph.
https://creativecommons.
org/licenses/by/4.
Settings on The Age Limit For Nomination As Regional Head Or Deputy Regional Head In The Regional Government System In Indonesia Moch.
Firmandika Gita Mareta1*.
Yudi Widagdo Harimurti2.
Nurus Zaman3 Master of Law Study Program.
Faculty of Law.
Universitas Trunojoyo Madura.
Indonesia.
Email:
230121100011@student.
Master of Law Study Program.
Faculty of Law.
Universitas Trunojoyo Madura.
Indonesia.
Email:
harimurti@trunojoyo.
Master of Law Study Program.
Faculty of Law.
Universitas Trunojoyo Madura.
Indonesia.
Email:
zaman@trunojoyo.
Corresponding Author: 230121100011@student.
Abstract: The direct election of regional leaders, as mandated by Article 18.
of the 1945 Constitution, aims to produce leaders with competence, integrity, and dedication in line with the peopleAos aspirations.
However, debates have emerged regarding the correlation between young or new leaders and their performance, which has sparked discussions on revising candidate requirements, particularly age limits.
This study examines .
how the age limit for regional head and deputy nominations is regulated in Indonesian law, and .
the reasons behind changes in these requirements.
Using a normative legal research method with statutory and conceptual approaches, the study finds that Law Number 10 of 2016 sets the minimum age at 30 years for governor and deputy governor candidates, and 25 years for mayor, deputy mayor, regent, and deputy regent candidates.
Following a Supreme Court decision (Case No.
23 P/HUM/2.
, the age requirement is calculated based on the swearing-in date.
The Constitutional Court emphasizes that Article 7.
of Law No.
10 of 2016 must be strictly applied during the nomination process.
Furthermore, the amendment of age limits cannot be separated from potential conflicts of interest among office holders.
Constitutionally, such amendments are legitimate, whether conducted through judicial, legislative, or executive review.
Keyword: Mayoral Elections.
Democracy.
Judicial Review.
INTRODUCTION
Indonesia is a state based on law, as stipulated in the 1945 Constitution1.
A good and proper state of law is characterized, among others, by the following: law derives from values that grow within society.
law reflects the needs of society.
law embodies a visionary and Pasal 1 Ayat .
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holistic nature.
law possesses quality and benefits for the community.
there is clarity and certainty of human rights.
and law can responsively adapt to the dynamics within society2.
According to the Montevideo Convention, the elements of a state require three components: population, government, and territory.
This aligns with Mac IverAos view that a state must meet three basic elements: government, community, and a defined territory.
Thus, it can be concluded that a state is a group of people organized under the law within a specific territorial boundary3.
The sovereignty of the people upheld by Indonesia is exercised through the general The collective will of all individuals is regarded as one nation striving to achieve common or public interests.
Laws must therefore aim to realize the public interest, directly determined by the people in the context of democracy.
Another characteristic of a state based on law is the implementation of a democratic system founded on peopleAos sovereignty.
Such a democratic system must be grounded in the interests of the people.
As an organization of power, the state holds direct authority.
As a democratic state of law, this implies that general elections for choosing leaders are conducted directly by the people4.
A key indicator of a democratic state is the implementation of democratic elections.
The Constitution sets the standards of democracy in the conduct of elections.
Elections are considered democratic if they adhere to the principles of being direct, general, free, confidential, honest, and fair.
These principles form the core values of electoral The direct election of regional heads is enshrined in Article 18, paragraph .
of the 1945 Constitution, initiating the democratic election of governors, regents, and mayors.
This direct election mechanism is expected to produce representatives and leaders with the capacity, competence, and commitment to realize the peopleAos aspirations5.
The election of governors, regents, and mayors, hereinafter referred to as Regional Head Elections, is the exercise of peopleAos sovereignty at the provincial and regency/municipal levels to elect governors, regents, and mayors directly and democratically.
Candidates for governor, regent, and mayor are proposed by political parties, coalitions of political parties, or individuals registered with the local General Election Commission6.
line with Article 18, paragraph .
of the 1945 Constitution of the Republic of Indonesia, peopleAos sovereignty and democracyAiby the people, from the people, and for the peopleAi must be respected as the primary condition for the implementation of gubernatorial, regental, and mayoral elections7.
That the sovereignty of the people and democracy as referred to in letter .
need to be affirmed through the direct election of governors, regents, and mayors by the people, while at the same time making several fundamental improvements to the problems that have arisen in the implementation of direct elections thus far8.
The elections of governors and deputy governors, regents and deputy regents, as well as mayors and deputy mayors, must be carried out democratically, with quality, and with legal certainty9.
In May 2024, there was a dynamic change regarding the age requirement for regional heads, which was initially calculated from the date of nomination but was later changed to be Nurus Zaman.
Constitution in the Perspective of Legal Politics, (Surabaya: Scopindo, 2.
, 3 Yudi Widagdo Harimurti.
Theory of Constitutional Law and Contemporary Developments in Indonesia, (Malang: Literasi Nusantara, 2.
, 7 Adnan Purichta Ichsan.
Regulation of Individual Candidates in Regional Head Elections in Indonesia, (Unhas.
Dissertatio.
, 2021, 16 Ahmad Fadlil Sumaidi, et al.
Constitutional Court Procedural Law.
Developments in Practice, (Depok:
Rajawali Press, 2.
, 93 Considerations of Law Number 1 of 2015 Pasal 18 Ayat .
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calculated from the date of inauguration.
This occurred when the Garuda Party filed a Judicial Review with the Supreme Court, and according to BRIN researcher Aisah Putri Budiarti, this change raised suspicions of political interests behind the CourtAos decision regarding the age requirement for regional head candidates.
The Supreme CourtAos ruling opened the door for Kaesang to run in the regional elections.
This situation is similar to the phenomenon when the Constitutional Court changed the age requirement for presidential and vice-presidential candidates, enabling GibranAos candidacy.
When such similarities occur, it is understandable that assumptions of political interests emerge10.
The Garuda Party is suspected of having political interests in accommodating certain figures as regional election contestants.
At that time, the son of former President Jokowi.
Kaesang Pangarep, had not yet reached the required minimum age to qualify as a candidate.
By analogy.
Kaesang would turn 30 in December 2024.
Based on the election schedule, candidate nomination was set for September 2024, which meant he did not meet the age requirement at the nomination stage.
However, if the requirement was changed to the inauguration stage, he would fulfill the minimum age by early 2025, when the inauguration takes place and he turns 3011.
In its main petition submitted through the Judicial Review, the Garuda Party argued that the phrase Aucalculated at the time of nominationAy restricted the application of the minimum age requirement.
This restriction, they claimed, contradicted Article 7 paragraph .
letter e of Law Number 10 of 201612.
They also considered the enforcement of PKPU Number 9 of 2020 as creating an antinomy, indicating a conflict between lower and higher regulations .
ex superior derogat legi inferior.
In addition, the party claimed there was legal uncertainty since applying the age requirement at the time of nomination could result in inconsistencies, as candidates would undergo several subsequent stages after nomination14.
Thus, calculating the age requirement at the time of nomination was seen as irrelevant and As a political party with legal status, the applicant felt disadvantaged because it could not nominate its preferred candidates for governor and deputy governor.
The above issues became a matter of national debate.
For this reason, several problem formulations were outlined to gain a deeper understanding of judicial authority and the provisions and requirements for the nomination of regional heads and their deputies.
METHOD
Research Method A research method is a way to solve problems or to develop knowledge using scientific Research also serves as a means for humans to strengthen and expand knowledge, while knowledge itself can be used to better understand and explore the subject under study.
From this definition, it can be seen that research involves a systematic process known as the research method16.
Many scholars conceptualize normative legal research as law in books, meaning what is written in statutory regulations or normative rules that serve as standards of behavior in Kaesang and the 2024 Regional Elections: Supreme Court ruling on age requirements for regional head candidates - Are there political interests behind Kaesang Pangarep's success? - BBC News Indonesia Suspicions Behind the Supreme Court's Expedited Legal Process: Is There Political Interest in Changing the Age Requirements for Regional Head Candidates? - All Pages - Ntvnews.
Supreme Court Decision No.
23 P/HUM/2024, 11
Ibid, 13 Ibid, 15 Ibid, 24 Jonaedi Efendi and Johnny Ibrahim.
Normative and Empirical Legal Research Methods, (Jakarta:
Kencana, 2.
, 3 371 | P a g e https://dinastires.
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society regarding what is considered proper.
In short, a research method is a scientific way to solve problems or to develop knowledge.
Based on this explanation, the author has decided to conduct qualitative research.
This qualitative method is a type of research grounded in the phenomenological philosophy of Edmund Husserl, later developed by Max Weber.
This qualitative research applies the statute approach, focusing on legal rules that form the central theme of this study to answer concrete and factual legal issues17, and the conceptual approach, which departs from the views and doctrines that have developed within legal science18.
The conceptual approach stems from the legal views and doctrines that have evolved in legal scholarship.
This approach is important because understanding such views or doctrines can serve as a foundation for building legal arguments in resolving legal issues.
The conceptual approach thus provides an analytical perspective in addressing legal problems19.
Research Approach The research approach used in this study consists of the statute approach and the conceptual approach.
The statute approach is carried out by examining statutory regulations to address concrete and factual legal problems.
This approach can also be interpreted as a research activity that seeks to establish a connection with the research object through statutory analysis20.
Meanwhile, the conceptual approach serves as a foundation for researchers in constructing legal arguments to resolve issues and in developing concepts to be applied in the study, based on legal views and doctrines that have evolved in legal scholarship21.
Technique of Collecting Legal Materials This method of data collection explains the sequence and procedures for gathering both primary and secondary data, which correspond to the chosen research approach.
The type of data collection employed is the collection of written documents such as laws, books, scientific journals, and other similar sources.
In this library research, the materials will be classified according to each research problem formulation.
Legal materials relevant to the main issues will then be inventoried, systematized, and accompanied by abstract analyses, which will serve as tools in the process of legal problem The sources of legal materials used in this study consist of Primary legal materials:
statutory regulations in force.
Secondary legal materials: literature, books, journals, and previous research.
Tertiary legal materials: legal dictionaries, encyclopedias, and other supporting references.
RESULT AND DISCUSSION
Regulation on Age Limits for Candidacy as Regional Head and Deputy Regional Head An age limit is a provision that serves as a boundary or requirement that may not be Likewise, when associated with the regulation of age limits, it refers to the age restriction that must not be surpassed in the nomination of regional heads and deputy regional Ibid, 3 Peter Mahmud M.
Legal Research, (Jakarta: Kencana, 2.
, 133 Irwansyah.
Ahsan Yunus.
Legal Research: Choice of Methods and Practice of Article Writing, (Yogyakarta: Mirra Buana Medi.
, 2024, 147 Salim HS.
Arlies Septiana Nurbani.
Application of Legal Theory in Thesis and Dissertation Research, (Depok: Rajawali Press, 2.
, 17 Peter Mahmud M.
ResearchA , 177 Titik Triwulan Tutik, "Regional Head Elections Based on Law No.
32 of 2004 in the Election System According to the Constitution" (Unair.
Thesi.
2005,27 Kamus Besar Bahasa Indonesia VI daring 372 | P a g e https://dinastires.
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The regulation concerning the age requirement is stipulated in Law Number 10 of 2016, which sets the minimum age at 30 .
years for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years for candidates for Regent and Deputy Regent as well as Mayor and Deputy Mayor24.
This is further clarified by the General Elections Commission (Komisi Pemilihan Umum/KPU), as the national and independent election organizer established under constitutional provisions25.
Consequently, the issuance of KPU Regulation Number 10 of 2024 includes provisions regulating the age requirements for pairs of regional head Before the issuance of KPU Regulation Number 10 of 2024, the KPU issued KPU Regulation Number 8 of 2024 based on the mandate of the Supreme Court Decision Number 23 P/HUM/2024, which granted the judicial review request filed by the Indonesian Republic Guard Party (Partai Garud.
regarding Article 4 paragraph .
letter d of KPU Regulation Number 9 of 2020 on the Fourth Amendment to KPU Regulation Number 3 of 2017 concerning the Nomination of Governors and Deputy Governors.
Regents and Deputy Regents, and/or Mayors and Deputy Mayors.
This provision was deemed contradictory to Law Number 10 of 2016 concerning the Second Amendment to Law Number 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law Number 1 of 2014 on the Election of Governors.
Regents, and Mayors into Law, and thus did not have binding legal force insofar as it was not interpreted as Aubeing at least 30 .
years old for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years old for candidates for Regent and Deputy Regent or Mayor and Deputy Mayor, calculated from the inauguration of the elected candidate pair.
Ay Accordingly, the a quo article now reads: Article 4 paragraph .
letter d: Aubeing at least 30 .
years old for candidates for Governor and Deputy Governor, and 25 .
years old for candidates for Regent and Deputy Regent or Mayor and Deputy Mayor, calculated from the inauguration of the elected candidate pair.
Ay This was then incorporated into KPU Regulation Number 8 of 2024.
Because such decisions are final and binding, they also give rise to and apply the principle of erga omnes.
In a Constitutional Court decision, the ruling does not only bind the parties involved .
nter parte.
but must also be observed by all parties .
rga omne.
Therefore, the Constitutional Court should interpret a legal norm in a statute, since it would not be possible for the Supreme Court to review a statutory regulation without first determining the meaning of the article being challenged26.
Thus, it was appropriate that the Constitutional Court, in its legal considerations in Decision Number 70/PUU-XXII/2024, declared that Article 7 paragraph .
letter e of Law Number 10 of 2016 is already a clear and unambiguous norm, and there is no need to add or assign any other meaning.
Providing a new interpretation would create legal uncertainty concerning other requirements regulated under Article 7 paragraph .
of Law Number 10 of 2016 and would cause the provision to be inconsistent with the principle of legal certainty27.
From the perspective of Law Number 30 of 2014 concerning Government Administration, it is stated that the granting of authority to government bodies and/or officials is derived from the 1945 Constitution of the Republic of Indonesia or by statute.
Attribution authority .
ewenangan atribus.
is the authority directly conferred by the 1945 Constitution Pasal 7 Undang-Undang Nomor 10 Tahun 2016 Zainal Arifin Mochtar.
Independent State Institution, (Depok: Rajagrafindo Persada, 2.
, 71 Tiara Rahmayanti Usman, et al.
AuApplication of the Erga Omnes Principle in Constitutional Court DecisionsAy.
UNSRAT Faculty of Law Journal.
Vol.
No.
4, 2024, 3
Pasal 28D ayat .
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of the Republic of Indonesia or by statute, and therefore such authority cannot be delegated unless explicitly provided for in the 1945 Constitution or by statute28.
The General Elections Commission (Komisi Pemilihan Umum/KPU), as the regulatory body, has the authority to establish, amend, and revoke KPU regulations and to regulate technical matters in the implementation of general elections.
This constitutes an attribution authority as stipulated in the 1945 Constitution of the Republic of Indonesia, specifically in Article 22E paragraph .
, which states: AuGeneral elections shall be conducted by a General Elections Commission that is national, permanent, and independent.
Ay Therefore, in order to ensure the achievement of the national goals and ideals as enshrined in the Preamble of the 1945 Constitution of the Republic of Indonesia, general elections are required for members of the House of Representatives (Dewan Perwakilan Rakya.
, members of the Regional Representative Council (Dewan Perwakilan Daera.
, the President and Vice President, as well as for members of Regional Legislative Councils (Dewan Perwakilan Rakyat Daera.
These elections serve as a means of realizing popular sovereignty, enabling the formation of representative institutions and a democratic government based on Pancasila and the 1945 Constitution.
To this end, electoral regulations are needed as a manifestation of a democratic and integrity-based constitutional system, ensuring consistency and legal certainty in elections that are efficient and effective29.
This constitutes the core value in the implementation of general elections.
Direct regional head elections are provided for in Article 18 paragraph .
of the 1945 Constitution, which mandates that governors, regents, and mayors shall be elected democratically.
The mechanism of direct regional head elections is expected to produce representatives and leaders who possess the capacity, competence, and commitment to realize the welfare desired by the people30.
In a democratic context, general elections are one of the most significant aspects of democracy and must be conducted in a democratic manner.
Commonly, in countries that claim to be democratic states, elections are institutionalized as the means to choose public officials in both legislative and executive branches, at both the central and regional levels.
Elections and democracy are a conditio sine qua non, meaning they are inseparableAi one cannot exist without the other.
Elections are understood as a procedure to achieve democracy and as a means of transferring the peopleAos sovereignty to certain candidates to occupy political offices.
Thus, the organization of elections in a country represents the exercise of citizensAo political rights, the realization of popular sovereignty, and a mechanism to ensure the lawful transition of government.
The regulation of age limits through the mechanism of Judicial Review refers to the authority of judges to assess the validity of a legal norm by examining it against higher legal If the norm under review is found to be in conflict, the court may annul the article being reviewed.
This is done to safeguard constitutional supremacy, protect human rights, and ensure that the hierarchy of laws is consistent and not contradictory to higher legislation.
In our country, it is required that the Constitution be placed as the supreme law and as the main reference in reconstructing legal products.
Therefore, when drafting regulations, lawmakers must adhere to the hierarchy of legislation.
Within this hierarchy, lower-level laws must be based on, or derived from, higher-level laws and must not contradict them.
Higher laws serve as the foundation and source for lower-level laws.
The higher the law in the Nurus Zaman.
Reconstruction of the Vice President's Power in the Indonesian Government System, (Bandung: Refika Aditama, 2.
, 48 Consideration of Law of the Republic of Indonesia Number 7 of 2017 Ahmad Fadlil Sumaidi, et al.
Procedural LawA, 93 374 | P a g e https://dinastires.
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hierarchy, the more abstract and general its norms are.
conversely, the lower its position, the more concrete its norms become in regulation31.
The issuance of General Elections Commission Regulation Number 8 of 2024, which stipulates: AuThe minimum age requirement is 30 .
years for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years for candidates for Regent and Deputy Regent, or candidates for Mayor and Deputy Mayor, as referred to in Article 14 paragraph .
letter d, calculated from the inauguration of the elected candidate pair,Ay constitutes a legal product of the General Elections Commission, issued based on the Supreme Court Decision Number 23 P/HUM/2024.
Formally, the amendment of General Elections Commission Regulation Number 8 of 2024 following the judicial review decision of the Supreme Court is correct.
However, when examined materially, the Supreme CourtAos decision contains legal considerations that are inadequate and exceed its authority in interpreting the Constitution.
The Supreme Court Decision Number 23 P/HUM/2024, in its reasoning, entered the realm of constitutional interpretation referring to the 1945 Constitution of the Republic of Indonesia.
In its reasoning, the Supreme Court stated:
AuPhilosophically, the spirit of the Constitution as regulated in Article 6 paragraph .
of the 1945 Constitution places the greatest emphasis on the state officials who occupy the Therefore, the true meaning of the minimum age requirement for holding office in the constitutional system of the Republic of Indonesia must be understood as the age at which the individual concerned is inaugurated and granted authority by the state to perform acts of governance, with all rights and obligations attached to them as a state organ and as a government official or state administrator.
Ay Thus, in this position, the Supreme Court exceeded its authority by interpreting the original intent of the 1945 Constitution, which is clearly not within its constitutional mandate, as its authority is limited only to reviewing regulations subordinate to statutes.
The sole institution authorized to interpret the Constitution is the Constitutional Court, which holds the authority to review statutes against the 1945 Constitution32.
This distinction is confirmed by Jimly AshshiddiqieAos concept of judicial review, which states that the Supreme Court conducts reviews based on legality, while the Constitutional Court conducts reviews based on constitutionality.
The Constitutional Court may only determine whether a statute, or part of its contents, sentences, or phrases, is contrary to the Constitution or not, and it may not exceed the boundaries of constitutional review by encroaching into the domain of legality review33.
The impact of the implementation of judicial review in IndonesiaAos legal system is quite This mechanism provides space for the public to actively participate in the legal process and demand justice.
With judicial review, citizens are able to challenge laws or regulations beneath them that, in their view, infringe upon their rights.
This mechanism creates a balance between the power of the people and the power of the government.
Thus, when linked to the practice of democracy in Indonesia, it is appropriate, since a democratic state must necessarily base its actions on the law.
A good government action must be grounded in written legal regulations, as a state based on law requires constitutional supremacy, whereby the Constitution serves as the fundamental basis toward achieving a democratic state.
Safi'.
History and Position of Judicial Review Regulations in Indonesia, (Surabaya: Scopindo, 2.
Syarif Hidayatulah Azhumatkhan.
Adithya Tri Firmansyah.
Reflections of Supreme Court Decision Number 23 P/HUM/2024: The Escalation of Pilitical Judicalization and Judicial Politicization in Norm Testing.
Academos Jurnal Hukum & Tatanan Sosial.
Vol.
No.
1, 2024, 14
Nasrullah Nawawi et al.
Testing of Legislation in Indonesia, (Banyumas: Amerta Media, 2.
, 140 375 | P a g e https://dinastires.
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The concept of age limits, when viewed from the Constitutional CourtAos legal opinion in Decision No.
7/PUU-XI/2013, constitutes a matter of public policy that may be altered at any time by the legislator, since the 1945 Constitution does not regulate age limits for holding government positions.
Thus, the matter is delegated to the legislature.
In relation to age criteria, the 1945 Constitution does not stipulate a specific minimum age as a general criterion applicable to all offices or governmental activities.
This means that the 1945 Constitution entrusts the legislature with regulating it.
Furthermore, the Court in Decision No.
15/PUU-V/2007 dated November 27, 2007, and Decision Nos.
37 and 39/PUUVi/2010 dated October 15, 2010, essentially considered that, with respect to age requirements, the 1945 Constitution does not establish a specific minimum age for holding all government positions, as this is a matter of open legal policy .
pened legal polic.
Since the 1945 Constitution does not determine a specific minimum age limit, it leaves the matter to the legislature to regulate.
Moreover, according to the Constitutional Court in Decision No.
15/PUU-V/2007 dated November 27, 2007, and Decisions Nos.
37 and 39/PUU-Vi/2010 dated October 15, 2010, it has been emphasized that regarding age criteria, the 1945 Constitution does not stipulate a specific minimum age requirement for holding government positions and performing governmental activities.
This remains an open legal policy, subject to change at any time35.
Table 1.
Age Limits in Legislation Juvenile Court Law Human Rights Act Child Protection Act Labor Law Citizenship Law of the Republic of Indonesia Human Trafficking Crime Law Pornography Law Notary Law Civil Code Marriage Law Compilation of Islamic Law Criminal Code 18 Years 18 Years 18 Years 18 Years 18 Years 18 Years 18 Years 18 Years 21 Years 21 Years 21 Years 21 Years If compared with the age limit for adulthood in Indonesian laws and regulations, then the age of 30 years for candidates for Governor and Deputy Governor and 25 years for candidates for Regent.
Deputy Regent and Mayor and Deputy Mayor is sufficient to meet the criteria for adulthood and/or legal capacity.
Changes in the Age Limit Requirements for the Nomination of Regional Heads and Deputy Regional Heads In a state that adheres to the rule of law, change is something natural and commonly However, between one law and regulation and another, differences exist because each has its own status or hierarchical position.
Sometimes a law or regulation may be amended within a relatively short period of time, while in other cases, amendments occur after it has been in effect for a relatively long time.
The 1945 Constitution of the Republic of Indonesia was amended only after it had been in force for a considerable period, and it had already produced hundreds of organic regulations.
This is because the 1945 Constitution, aside from Kutipan Pertimbangan Hukum Mahkamah Konstitusi dalam Putusan Mahkamah Konstitusi No.
7/PUU/XII/2013, 25
Philosophical Basis.
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serving as the basic norm of the state, also functions as the legal norm that regulates fundamental and principal matters concerning the state and government36.
Indonesia, as a state of law .
that upholds the supremacy of law .
ule of la.
, requires that the management of the state, including changes to laws and regulations, must be based on law.
Since every citizen has equal standing before the law, the consequence of applying the rule of law is the enforcement of the legal fiction principle, which assumes that every citizen is deemed to know all laws in force .
resumption iuris de iur.
As a result, ignorance of the law does not absolve anyone from legal violations.
Generally, the causes of amendments to the 1945 Constitution do not differ significantly from the causes of legal changes in general.
The countryAos socio-political situation plays an essential role in every legal amendment.
Legal changes can also be triggered by the development of the global community and the demands of globalization, which are now inevitable.
Since the reasons for amending the 1945 Constitution are diverse and even complex, the involvement of leaders or rulers becomes a crucial factor to be State leaders must be capable of guiding the thought process regarding which legal norms will be formulated into laws and regulations37.
Conceptually, there are several models for amending written legal products: legislative review, executive review, and judicial review.
These amendment models are carried out as a form of constitutional change.
Such models, however, only apply to legal products below the 1945 Constitution38.
Essentially, every amendment represents a fundamental reform to establish a democratic and proportional legal and governmental system.
The objectives of amendments themselves include:
Amending, supplementing, simplifying, or .
n whole or in par.
reorganizing and restructuring the constitution so that it aligns with the realities of ideology, politics, economics, social conditions, culture, defense, and security at that time.
Establishing the 1945 Constitution as the fundamental norm of the stateAos struggle for sustainable democracy, restoring constitutionalism to guarantee and protect human rights, the rule of law, and a creative and independent judiciary subject to the rule of law.
Preventing incomplete or fragmented legislative reforms, ensuring that the processes and mechanisms for amending or creating new laws and regulations remain constitutional39.
In the development of constitutional amendments, two methods are recognized: formal procedural methods, based on applicable legal provisions .
, which represent normative legal changes arising from shifts in fundamental thoughts, principles, state form, governmental systems, and others.
and extra-procedural methods .
, which include changes through revolution, convention, or coup dAoytat40.
Tamanaha writes that.
Auevery legal system stands in a close relationship to the ideas, aims, and purposes of society.
Law reflects the intellectual, social, economic, and political climate of its time.
Ay Law, in essence, is a reflection of society.
it embodies the ideals, will, and aspirations of the people.
These ideals, will, and aspirations often become institutionalized in the law that lives within society.
Therefore, law must be rooted in the values that exist within society.
Philosophically, if law reflects the ideals, will, and aspirations of society, then it constitutes the foundation of lawmaking itself41.
Nurus Zaman.
Constitution in the Perspective of Legal Politics, (Surabaya: Scopindo, 2.
, 205 Ibid, 212 Ibid, 214 Bakhrul Amal.
AuMohammad Ihsan.
Legal Politics of Amendments to the 1945 Constitution of the Republic of IndonesiaAy.
Al-Wasath Journal.
Vol.
No.
2, .
: 70
Fajlurahman Jurdi.
Ahmad Yani.
AuLegitimasi Pereubahan Konstitusi Non Formal dan Pembatasannya Dalam Paham KonstitusionalAy.
Jurnal Konstitusi.
Vol.
No.
2, 239
Tongat et al.
, "Living Law in Society in National Criminal Law Reform".
Constitutional Journal.
Vol.
No.
1, 12
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Jeremy Bentham, with his utilitarianism, consistently emphasized what the legal system should achieve.
In his theory.
Bentham employed utilitarianism as the basis for human action, aiming to maximize happiness and minimize suffering42.
In his thought, the state must accommodate happiness for each individual, ensuring that everyone has the equal opportunity to pursue happiness so that no individual is left to suffer43.
Therefore, if this utilitarianism is linked to the cause of the change in the age limit requirements for regional head candidacy from a minimum of 30 years for governor/deputy governor and 25 years for regent/deputy regent and mayor/deputy mayor at the time of candidate determination, then changing the age limit requirement to 30 years for governor/deputy governor and 25 years for regent/deputy regent and mayor/deputy mayor at the time of inauguration and then again to 30 years for governor/deputy governor and 25 years for regent/deputy regent and mayor/deputy mayor at the time of inauguration, then to achieve legal certainty and happiness according to Jeremy Bentham because it opens the door for every citizen who has the potential to become a regional head candidate at a young age to obtain and obtain equal opportunities in government44.
Then the change in the age limit requirement for regional head candidacy is regulated by the General Election Commission Regulation, its existence is recognized and has binding legal force because it is ordered by higher legislation and is formed based on the authority granted by law to the General Election Commission.
Although the General Election Commission Regulation is not included in the Types and Hierarchy of Legislation, its existence is recognized and has binding legal force because it is mandated by law45 and established based on the authority obtained from the 1945 Constitution46.
Table 2.
Changes to the Age Limit Requirements for Nominating Regional Heads and Deputy Regional Heads No Constitution Constitutional Court Supreme Court General Election Decision Decision Commission Regulations Law No.
PKPU No.
9 2020 requires requires an age of that the candidate pair must be at least 30 years old and gubernatorial and the candidate pair must be at least 25 years old since the candidate pair was candidates and 25 years for district head and deputy candidates as well as mayoral and Law No.
Supreme Court PKPU No.
8 2024 requires requires an age of Decision No.
that the age of the candidate pair for Governor and gubernatorial and P/HUM/2024 Deputy Governor be 30 stipulates that years old and 25 years old the calculation for the candidate pair for candidates and 25 of the age of a Regent and Deputy Regent years for district Regional Head and the candidate pair for Soerjono Soekanto.
Principles of Legal Sociology, (Depok: Rajagrafindo Persada, 2.
, 41 Hend Hanafy.
Bentham: AuPunishment And The Utilitarianis Use Of Person As MeansAy.
Journal Of Bentham Studies.
Vol.
29, 2021, 11
Pasal 28 D ayat .
UUD NRI 1945 Pasal 75 ayat .
Undang-Undang No.
7 Tahun 2017 Pasal 22 E ayat .
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head and deputy candidates as well as mayoral and Candidate must be made at the time of inauguration of Elected Regional Head Candidate.
Decision No.
70/PUU-XXII/2024,
considerations, states must be met in the nomination process which culminates in the determination of Mayor and Deputy Mayor since the inauguration of the candidate pair.
PKPU 10 2024 requires that the age of the candidate for Governor Deputy Governor be 30 years old and 25 years old for the candidate for Regent and Deputy Regent as well as the candidate for Mayor and Deputy Mayor since the candidate pair.
Throughout the stages of the 2024 simultaneous regional elections (Pilkada serenta.
, normatively, changes related to the age limit requirements for the nomination of regional heads occurred twice.
The first change was introduced through the issuance of General Election Commission Regulation (PKPU) Number 8 of 2024, which stated: AuThe minimum age requirement is 30 .
years for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years for candidates for Regent and Deputy Regent, or candidates for Mayor and Deputy Mayor, as referred to in Article 14 paragraph .
letter d, calculated from the inauguration of the elected candidate pair.
47Ay Subsequently, a newer regulation was issued through PKPU Number 10 of 2024, which stipulated the age requirement as follows: AuThe minimum age requirement is 30 .
years for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years for candidates for Regent and Deputy Regent, or candidates for Mayor and Deputy Mayor, as referred to in Article 14 paragraph .
letter d, calculated from the determination of the candidate pair.
48Ay The overlap of authority between the Supreme Court (Mahkamah Agun.
and the Constitutional Court (Mahkamah Konstitus.
led to changes in the regulation of age requirements for regional head nominations.
This began with Supreme Court Decision Number 23 P/HUM/2024, which was filed by the Garda Republik Indonesia Party, exercising its right to judicial review of Article 4 paragraph .
letter d of the General Election Commission Regulation on the Fourth Amendment to PKPU Number 3 of 2017 concerning the Nomination of Governors and Deputy Governors.
Regents and Deputy Regents.
Mayors and/or Deputy Mayors.
As a result, the Supreme Court ordered the General Election Commission of the Republic of Indonesia to revoke Article 4 paragraph .
letter d of PKPU Number 9 of 2020 concerning the Fourth Amendment to PKPU Number 3 of 2017 on the Nomination of Governors and Deputy Governors.
Regents and Deputy Regents.
Mayors and/or Deputy Mayors.
Thus, the relevant article was amended to read: AuThe minimum age requirement is 30 .
years for candidates for Governor and Deputy Governor, and 25 .
wenty-fiv.
years for candidates for Regent and Deputy Regent, or candidates for Mayor and Deputy Mayor, as referred to in Article 14 paragraph .
letter d, calculated from the inauguration of the elected candidate pair.
49Ay Supreme Court Decision No.
23 P/HUM/2024, 67-68
Constitutional Court Decision No.
70/PUU-XXII/2024, 50
Putusan Mahkamah Agung No.
23 P/HUM/2024, 67-68
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Subsequently, the Constitutional Court issued a ruling on the judicial review of Article 7 paragraph .
letter e of Law Number 10 of 2016, which had been filed by two students who felt their constitutional rights had been harmed by the enforcement of Article 7 paragraph .
letter e.
They argued that the article caused the nomination process to lack legal certainty and democratic principles50.
In its legal considerations, the Constitutional Court interpreted that AuArticle 7 paragraph .
letter e of Law Number 10 of 2016 is already clear in its normative content, and therefore, no additional or different meaning may be given beyond what has been considered in the decision in question, namely that the requirements must be fulfilled at the nomination process, which culminates in the determination of 51Ay This overlap of authority between the Constitutional Court and the Supreme Court has created various problems, ultimately leading to a conflict of jurisdiction between the two institutions and resulting in legal uncertainty.
Both the Supreme Court and the Constitutional Court have authority to review regulations, but the difference lies in the type and hierarchy of the laws and regulations being reviewed.
The interpretation of legislation by both institutions must comply with the prevailing hierarchy of laws and regulations.
Normatively, all laws and regulations derive their authority from higher-level laws, and therefore, any ruling from the judicial review of a law against the Constitution has an erga omnes effect, binding not only the public but also justices of the Supreme Court and judges within the judiciary under the Supreme Court.
In legal doctrine, it is understood that there are two .
models of the judicial review system, namely:
Judicial Review in the field of judiciary This refers to the re-examination by the highestjudicial body of a decision issued by a lower court, on the grounds that an error has occurred in the application of the law by the In such a case, the higher court has the authority to conduct a substantive review of the application of the law.
Judicial Review in the field of constitution This refers to the re-examination of a state authorityAos decision, which allows for the annulment of a decision made by the legislative and/or executive body in the law-making In this context, both the Supreme Court (Mahkamah Agun.
and the Constitutional Court (Mahkamah Konstitus.
have authority to review laws and regulations in Indonesia.
With respect to the changes in the age requirement for regional head candidacy, the Supreme Court, in its legal considerations, reasoned as follows:
AuPhilosophically, the spirit of the Constitution as reflected in Article 6 paragraph .
of the 1945 Constitution places primary emphasis on the state organs and officials who hold such positions.
Therefore, the true meaning of the minimum age requirement for positions within the constitutional system of the Republic of Indonesia must be understood as the age at which the individual is inaugurated and granted authority by the state to carry out governmental actions, with all rights and obligations inherent as a state organ and as a government official or state administrator.
Ay The Supreme Court further considered:
AuTo bridge this line of reasoning with the fact that laws have already stipulated the requirements for candidates for state officials or administrators, the Supreme Court holds that the calculation of age for candidates, including candidates for regional head positions, must be counted from the date of inauguration or immediately after the status as a candidate Constitutional Court Decision No.
70/PUU-XXII/2024, 36-37
Ibid, 50 Nasrullah Nawawi et al.
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ends, whether as a registered candidate for regional head, a candidate pair, or an elected regional head candidate.
53Ay Similarly, the Constitutional Court, in its legal considerations, held as follows:
AuWith regard to the above legal considerations, as the election organizer, the KPU determines the minimum age requirement for regional head and deputy regional head candidates in accordance with the minimum age stipulated by law.
In this regard, it is important for the Court to emphasize that the point or threshold for determining the minimum age must be assessed during the nomination process, which culminates in the determination of the candidates.
Accordingly, in its position as the election organizer, if the KPU requires technical regulations to implement the material contained in Article 7 paragraph .
letter e of Law No.
10 of 2016, such regulations must be drafted in accordance with the substance of the said provision.
Moreover, in accordance with the principle of erga omnes, the CourtAos legal reasoning and interpretation of Article 7 paragraph .
letter e of Law No.
10 of 2016 is binding on all election organizers, election contestants, and all citizens.
Therefore, if the election organizer fails to adhere to the CourtAos interpretation in the ruling in question, as the judicial authority authorized to resolve election disputes, the Court may declare the candidacy of regional head and deputy regional head candidates who do not meet the relevant requirements invalid.
Ay The Constitutional Court further reasoned:
AuConsidering that the Court has examined the matter comprehensively based on historical, systematic, comparative approaches and existing practices.
Article 7 paragraph .
letter e of Law No.
10 of 2016 is already clear, explicit, and unequivocalAilike the brightness of the sun .
ak basuluh matohari, cetho welo-wel.
Therefore, no new or additional interpretation beyond that contained in the CourtAos ruling is necessary, meaning that the requirement in question must be fulfilled during the nomination process culminating in the determination of candidates.
Within reasonable limits of interpretation, introducing a new meaning to Article 7 paragraph .
letter e of Law No.
10 of 2016, such as that requested by the Petitioners, would render the provision anomalous compared to all other provisions governing candidacy requirements for regional heads and their deputies.
If such a new interpretation were applied, other provisions in the same cluster of candidacy requirements could potentially be interpreted as not needing to be fulfilled during registration, verification, and candidate determination.
Such a scenario would create legal uncertainty regarding the other requirements set forth in Article 7 paragraph .
of Law No.
10 of 2016.
This would be inconsistent with the guarantee of legal certainty as stipulated in Article 28D paragraph .
of the 1945 Constitution of the Republic of Indonesia.
54Ay Observing the two legal considerations above, it is necessary to establish harmonization between the two judicial institutions in order to avoid dualism in the stages of judicial Conceptually, the Constitutional Court is an institution that has been granted authority by the constitution to act as the body that oversees legislation, where this institution may annul laws deemed unconstitutional.
According to Saldi Isra, as quoted from Kelsen, it was once said:
AuWhoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoken them: a fortiori, whoever hath an absolute authority not only to interpret the Law, but to say what the Law is, is truly the Law-giver.
Ay (Whoever has absolute authority to interpret written or unwritten law, it is he who truly gives meaning to the law in all its purposes and intentions, and not the person who first wrote Supreme Court Decision No.
23 P/HUM/2024, 60
Constitutional Court Decision No.
70/PUU-XXII/2024, 50
Zainal Arifin Mochtar.
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, 228 381 | P a g e https://dinastires.
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or uttered it.
more explicitly, whoever has absolute authority not only to interpret the law but also to define the law, is in fact the one who gives true meaning to the la.
Thus, according to Saldi Isra, if there are two differing interpretations, then the interpretation of the Constitutional Court must prevail, as it is consistent with the principle of erga omnes, which binds all parties.
Conceptually, therefore, the Constitutional Court is the institution with the authority to interpret and annul unconstitutional laws.
When this opinion is linked to Article 24C Paragraph .
of the 1945 Constitution, the Constitutional Court clearly holds the constitutional power and authority to carry out interpretations of the The Constitutional Court is the institution authorized to give meaning to laws as legal norms.
Its position as the interpreter of the constitution must serve as the main reference whenever differences in statutory interpretation arise, further strengthened by Law No.
24 of 2003 as amended by Law No.
8 of 2011 concerning the Constitutional Court.
Accordingly, it is appropriate that the Chairman of the General Election Commission (KPU) of the Republic of Indonesia.
Mochammad Afifuddin, expressed the view that the KPU affirms the minimum age requirement for regional head candidates must comply with and follow the Constitutional CourtAos decision.
Chairman Afif conveyed that the KPU will amend Article 15 of KPU Regulation No.
of 2024 regarding the age requirement for candidate pairs to align with the Constitutional CourtAos ruling.
In addition.
Afif stated that the KPU will also revise the candidateAos declaration form contained in the annex of the KPU Regulation57.
Should the KPU fail to comply with the Constitutional CourtAos decision, it would, administratively, violate the principles of good governance.
For the sake of achieving legal certainty, which is a fundamental principle of a rule-of-law state, government administrators must prioritize adherence to statutory regulations.
According to Sudikno Mertokusumo, principles serve as general foundational thoughts that underlie the formation of statutory regulations.
Thus, when connected to the issue above, a legal product must be based on the following points:
Legal certainty.
Utility.
Impartiality.
Accuracy.
Non-abuse of authority.
Transparency.
Public interest.
Quality service58.
The Supreme Court's ruling did not actually change the age requirements of the articles in the Regional Election Law, but only modified the technical provisions related to the General Election Commission Regulations.
Because reviewing articles in the law is the authority of the Constitutional Court.
Therefore, even though the age requirements in the General Election Commission Regulations were changed by a judicial review conducted by the Supreme Court, the General Election Commission must still follow and comply with applicable laws and regulations.
This is strengthened by the Constitutional Court's interpretation, which emphasized that the age requirements for regional head candidates must comply with the Constitutional Court's ruling, which culminated in the determination of the Saldi Isra.
Points of Intersection of the Authority of the Supreme Court and the Constitutional Court.
Journal of Law and Justice.
Vol.
No.
1, 2015, 28
KPU: Minimum Age for Regional Head Candidates Calculated from the Determination of Candidate Pairs Pasal 10.
Undang-Undang Nomor 30 Tahun 2014 382 | P a g e https://dinastires.
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age requirements for regional head candidates must be calculated at the time of the candidate's appointment.
CONCLUSION
The Constitutional Court is a constitutional institution that acts as an oversight body for This institution can completely annul an unconstitutional law.
Therefore, if there are two interpretative opinions, the Constitutional Court's interpretation should be used.
Our Constitution delegates constitutional authority and authority to interpret the Constitution, and the Constitutional Court's interpretation should be used as a guideline by all parties when differing interpretations arise.
This aligns with the principle of erga omnes, which is binding on all parties, particularly regarding the age limit for regional head candidates.
Changes to the age limit for regional head and/or deputy regional head candidates are inseparable from the conflicting interests of state officials.
Furthermore, constitutionally, changes to legal norms are correct, whether through judicial review, legislative review, or executive review.
Furthermore, the changes to the age limit are deemed to meet philosophical, historical, and sociological values.
REFERENCES