Still unsatisfied, because it felt that it had been denied the opportunity to correct its documents properly, Prima Party again lodged a formal complaint to Bawaslu. In response, Bawaslu stated that it could not process the complaint based on Article 15.b of Bawaslu Regulation 9/2022 because KPU Official Record was issued as a follow-up to a Bawaslu decision. Bawaslu considers this as ne bis in idem (double jeopardy) which prohibits a person/entity from being tried a second time in violation of the same law.
This led to Prima Party registering Case 425/G/2022/PTUN.JKT with the Jakarta Administrative Court. The court refused to take up the case as it reasoned that KPU Official Record 275/PL.01.1-BA/05/2022 was not an object of electoral process dispute based on Article 470.2a of Law 7/2017 which stipulates that it must be in the form of KPU Decree, not an Official Record.
The Jakarta Administrative Court in its decision argued that the object of electoral process dispute was a KPU Decision on the determination of election contestants, which based on Appendix to KPU Regulation 3/2022 on stages and schedule for General Election 2024 explicitly states that it will be carried out on December 14, 2022. So, the Jakarta Administrative Court refused to take up Prima Party’s lawsuit on the ground that the formal requirements with regard to the object of the lawsuit were not fulfilled.
At the end of registration and verification stage on December 14, 2022, KPU issued KPU Decree 518/2022 on political parties qualified to contest general election in 2024. Prima Party was not on the list, meaning that it was formally disqualified.
Prima Party then filed an electoral process dispute settlement request to Bawaslu again. In response, Bawaslu issued Notification 12/PS.00/ K1/12/2022 dated December 19, 2022 ruling that the case was excluded from being processed, based on Article 15.b of Bawaslu Regulation 9/2022, because the object in question is a follow-up to electoral process dispute decision at Bawaslu (Niet Ontvankelijke Verklaard).
Not one to give up easily, Prima Party again filed a lawsuit with the Jakarta Administrative Court on December 26, 2022, demanding that the court: (1) Approve its lawsuit in its entirety; (2) Declare KPU Decree 518/2022 to be null and void; (3) Order KPU to revoke the said decree; (4) Order KPU to issue a decision reinstating Prima Party as 2024 election contestant; and (5) Order KPU to pay all legal costs incurred.
Unfortunately, the Jakarta State Administrative Court rejected its lawsuit again, the reasons being, first, Article 470.2 jo. Article 173.1 of Law 7/2017 jis. Article 1.8 of Supreme Court Regulation 5/2017 on procedures to settle electoral process disputes at the State Administrative Court jis. Article 4.1 jo. Article 6.3 jo. Article 135.1 of KPU Regulation 4/2022 on the registration, verification and determination of general election contestants requires that political parties eligible to contest are those that have been declared to have passed both administrative and factual verifications and electoral process disputes are defined as those between political parties that have gone through the administrative and factual verification process with KPU. Therefore, Prima Party did not meet these criteria.
Second, based on Article 468.4 jo. Article 469.1&2 of Law 7/2017, the court argued that Prima Party had no legal relationship (rechtbetrekking) with the object of the dispute, and thus no legal interest (rechtbelang) was harmed, stemming from the issuance of the decision on the disputed object, so Prima Party has no interest in filing a lawsuit for an electoral process dispute as required in Article 53.1 of Law 9/2004 on amendment to Law 5/1986 on State Administrative Court because Bawaslu only issued Notification 12/PS.00/ K1/12/2022 dated December 19, 2022 and did not examine the case – and so no decision was issued.
Thus, all the material arguments submitted by Prima Party regarding problems in the administrative verification process and unlawful acts allegedly committed by KPU in its follow-up to Bawaslu Decision have yet to be resolved in a formal forum, even though in practice Banda Aceh Administrative Court took a different approach in handling an almost identical case.
In Decision 23/G/SPPU/2022/ PTUN-BNA, Banda Aceh State Administrative Court accepted the lawsuit even though the object of the lawsuit was not a KPU decision. The judges were of the view that there has been a legal vacuum and based on Article 5.1 of Law no. 48/2009 on judicial power which stipulates that “judges and constitutional judges are obliged to explore, follow, and understand legal values and a sense of justice that prevails in the society.” It turns out that there is also a lack of uniformity between one judicial institution and another in responding to legal efforts made by those aggrieved by the electoral process, in their search for justice.