Addressing Local Elections and the Urgency of Formal Constitutional Amendments
Ferdian Andi
Lecturer in the National Law Study Program, Faculty of Sharia and Law, UIN Jakarta /
Executive Director of the Center for Public Policy and Legal Studies (Puskapkum)
Constitutional Court (MK) Decision Number 135/PUU-XXII/2024 has introduced a new nomenclature in the national election system: national elections (for the House of Representatives (DPR), Regional Representative Council (DPD), President/Vice President) to be held in 2029, and local elections (for Governor/Vice Governor, Regent/Vice Regent, Mayor/Vice Mayor, and Provincial and Regency/City DPRD members) scheduled two to two and a half years after the inauguration of the DPR and President.
One important implication of this decision is that the terms of office of Provincial and Regency/City DPRD members will expire in 2029. However, local elections will not be held until 2 to 2 and a half years after the inauguration of the DPR RI and President, thus opening the possibility of extending the terms of office of DPRD members. This situation raises serious questions regarding the principle of regularity (fixed term) in the implementation of elections, as affirmed in Article 22E paragraphs (1) and (2) of the 1945 Constitution, namely that elections must be held periodically every five years.
The critical point of the Constitutional Court's ruling is the shift in the schedule for the Regional People's Representative Council (DPRD) elections, which violates constitutional principles. The strengthening of the transition period, considered in this Constitutional Court ruling, should not be used as justification for ignoring constitutional principles. If ignored, this has the potential to set a bad precedent for the implementation of a state based on the rule of law.
While theoretically, the separation of national and local elections is an ideal step in the context of strengthening the presidential system and regional autonomy, the provisions regarding the DPRD in the 1945 Constitution remain as a gray area. The DPRD is currently placed within the chapter on national elections, even though it is also recognized as part of regional government under Article 18 paragraph (3) of the 1945 Constitution. Ideally, regulations regarding DPRD elections should be included within the chapter on Regional Government.
The issue of the DPRD's inaccurate placement within the constitutional structure has existed for a long time, even before the constitutional amendments were made. Law Number 16 of 1969 to Law Number 17 of 2014 (the MD3 Law) exhibit overlapping regulations. Meanwhile, Regional Government Laws (Pemda Law) since the reform era, such as Law Number 22 of 1999, have positioned the DPRD as part of regional government. Therefore, ideally, regulations regarding the DPRD should be contained solely in the Pemda Law, with its provisions removed from the MD3 Law. This would align with the Constitutional Court's ruling distinguishing between local and national elections.
In the context of constitutional amendment, the Constitutional Court's ruling constitutes an informal amendment, or a change to the content of the constitution without changing the text. This occasion is similiar to the statement by Henc van Maarseveen and Ger van der Tang who argue that constitutional amendments can occur through an adjudication process in the judiciary. In addition, Fajrul Falaakh added that such informal changes often occur in countries with less established constitutional systems.
However, to maintain such consistency and clarity in constitutional law, formal amendments to the constitution become imperative. These amendments aim to refine provisions that have been informally amended through court decisions or legislation. Unfortunately, the constitutional amendment process in Indonesia is less straightforward due to the stringent procedures behind it. Proposals for amendments can only be made by at least 33% of the People's Consultative Assembly (MPR) members, and must be approved at least by 66% of MPR members, with final approval by more than 50% + one MPR member.
Several previous amendment initiatives, such as the proposal to strengthen the MPR's authority through the Basic State Policy (PPHN) and strengthen the function of the Regional Representative Council (DPD), have failed due to the unfulfilled formal requirements. Nevertheless, constitutional amendments remain an important and relevant option in responding to changes in the constitutional order following the Constitutional Court's ruling Number 135/PUU-XXII/2024.
Stakeholders need to seriously consider this step to ensure that Indonesia's constitutional legal system is firmly grounded and does not conflict with the spirit of constitutionalism. The idea of limited amendments, which is now being promoted by a number of political parties, could provide momentum to refine ambiguous and inconsistent norms in the constitution.
(This article was published on mediaindonesia.com on August 5, 2025)