Electoral Court for legal justice and certainty

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Vice Chairman of the House of Representatives’ Commission II Saan Mustopa. (Photo: Prive. Doc)

 IO – What we learned from the 2019 Elections is that the large number of disputes in the electoral process and stages has caused many people to feel that they have been denied legal justice and certainty. The overly heavy burdens piled on a single agency, as well as the overlap of the authorities among different agencies, are important warnings for our next elections. Election and Democracy Forum (Perkumpulan untuk Pemilihan Umum dan Demokrasi – “Perludem”) Executive Director Titi Anggraini held a webinar on the scheme of electoral justice in Indonesia. She believes that electoral justice is possible if we execute the authority of agencies faster, more effectively, and more efficiently. Therefore, the Election Draft Law is meant to prevent the excess of authority within a single agency, the excess of workload within an agency, and the overlap of authority between existing agencies. “To put it simply, the idea is meant to synchronize and harmonize law enforcement schemes and make them more organized. The scheme offers the existence of an Electoral Court right under the Supreme Court,” she stated in the discussion “Measuring the Urgency of Having an Electoral Court” held on Sunday (02/08/2020). 

Titi further stated that the current law enforcement scheme in Indonesia contains a number of problems to be resolved, such as those related to disputes in the process or in the stages. Perludem’s scheme is not meant to increase the complexity of law enforcement bureaucracy. On the contrary, it pushes for clarity, especially in terms of classifying the issues covered by the Elections Law. “Let us evaluate the classification of Election Law. We must adhere to the principle of justice and prevent overlaps. We don’t want any unfair treatment against anyone who is involved in the electoral process,” she said. 

Overlap 

In response to the statement made by Perludem’s Executive Director, Vice Chairman of the House of Representatives’ (Dewan Perwakilan Rakyat – “DPR”) Commission II Saan Mustopa stated that the Commission is currently focusing on discussing Draft Law Number 7 of 2017 concerning the Elections. The Commission has compiled the opinions of each Faction on the Election Draft Law for submission to the Legislative Commission and for summarizing. DPR’s intention to form an Electoral Court started with the 2014 Elections. All political party Factions in the DPR have agreed to discuss it, but the plan was cancelled as the Supreme Court, an important party in the discussion concerning the Electoral Court, was too busy. “That’s right – the Supreme Court was overloaded with work at the time. Therefore, the discussion concerning the creation of a court specifically for electoral purposes was delayed. It’s actually an old plan finally being revived,” he said. 

Saan further stated that there are a number of considerations about the necessity of the special court. First, to prevent excess authority being invested in a single agency. In the current context, all issues that occur during the electoral stages are handled by the Elections Monitoring Agency (Badan Pengawas Pemilihan Umum – “Bawaslu”). If disputes concerning voting results occur, the authority to resolve it will rest in the Constitution Court. “Bawaslu’s authority today is analogous to that of the police, the prosecutor, and the judge. All of these authorities overlap in this one agency,” he said. 

Second, decision-making overlaps. For example, there was the recent confusion over the testing of Election Commission Regulations (Peraturan Komisi Pemilihan Umum – “PKPU”) materials at the Supreme Court, even though another institution has decided on the dispute concerning electoral results. Saan states that the idea is for the Electoral Court to be placed under the Supreme Court in order to accelerate the processing of electoral disputes. “Furthermore, in cases of dispute at regency or municipal level, having an electoral court will allow cases to be resolved at local level. In other words, the Supreme Court need not attend everything directly – unlike how it is now. Now, any dispute from any province is directed to Jakarta with all the consequences it entails. On the other hand, having an Electoral Court in each provincial capital will help distribute caseloads, making resolutions faster,” he said. 

A great concern in holding simultaneous elections is the expected great increase of electoral disputes in the Supreme Court. This will place an excessive burden on the 9 constitution judges. “Especially since the plan is to replicate the 2019 Elections in 2024: Elections for the President/Vice President, membership of the DPR, membership of the Regional Representative Council (Dewan Perwakilan Daerah – “DPD”), and membership of provincial, regency, and municipal Regional House of Representatives (Dewan Perwakilan Rakyat Daerah – “DPRD”) are still going to be held simultaneously. With such limited resources and the high number of cases coming in from all levels in all regions, the Constitution Court’s nine judges will be greatly overburdened,” he said. 

Saan further states that the Bawaslu’s authority stretches from the top to the bottom: Monitoring, determining type of violation, adjudication, and even the setting of punishment is all part of its duties. This is why, as has been said before, we need to set up an Electoral Court and prevent overmuch authority on a single agency. “Sure, we need to discuss the pluses and minuses of having all authority in a single agency. But to me personally, when top to bottom authority is vested in a single agency – from monitoring to adjudication to punishment – these will cause negative impacts on subsequent elections,” he said. 

The Necessity of Having a Legal Basis 

The webinar was also attended by Election Commission (Komisi Pemilihan Umum – “KPU”) Commissioner Hasyim Asyari, who admits that the Commission frequently faces dilemmas when adjudicating during the elections. For example, the case of People Conscience (Hati Nurani Rakyat – “Hanura”) Party’s General Chairman, Oesman Sapta Odang (“OSO”). OSO was a legislative candidate for the DPD of RI in the 2019 Elections. At the time, KPU rejected his candidacy in line with the Constitution Court judgment that DPD legislative candidates cannot originate from political parties. However, the judgment was inconsistent: OSO submitted his appeal to the Supreme Court and his appeal was granted. In the end, KPU decides to adhere to the earlier Constitution Court Decree as it is a higher-level law. 

Hasyim states that law has three aspects, i.e. the substance of the law, the structure or agencies of the law, and the culture of the law. “All three of these aspects indicate the urgency of our having a proper Electoral Court,” he said. “Therefore, we need to be clear about what constitutes an Electoral Court. First we need to define what is “electoral justice”, what is the scope of its competence, and what is its authority. If we decide to establish this judicial institution, where will we place it under? Suppose we establish a specialist court under the Supreme Court. Up to what level will the court be? What will its administrative laws be like? How do we determine the qualifications of its judges? So far, we use the State Administrative Court for this purpose. We have qualifications of special administrative law for a limited period, and we have special judges for processing electoral cases. We need to have a clear administrative law explanation on the Electoral Court as well.” 

Meanwhile, March Eleventh University Faculty of Law’s State Administration Law expert Agus Riewanto stated that there are five entries for processing electoral cases in Indonesia: Administrative violation cases, to be tried in Bawaslu up to regency/ municipal level; electoral criminal violations, to be tried in Integrated Law Enforcement Centers and District Courts; electoral process disputes, to be tried in Bawaslu; issues relating to the ethics of electoral organizers are resolved in the Election Organization Ethics Council (Dewan Kehormatan Penyelenggara Pemilihan Umum – “DKPP”); and electoral result disputes are resolved in the Constitution Court. “This “justice in many rooms” practice leaves loopholes for people to take advantage of. If one fails in one court, they need only seek help in another. This is a danger to our electoral system as it is imprecise and tempts people to try things out,” he said. 

Other than the OSO case, Agus also cited the case of one Ngadiono, whose name was removed from the Legislative Candidacy List for having used an official car in violation of regulations according to the judgment of a District Court. He then took his case to the State Administrative Court and was found not guilty. “Such cases cause overlap of court decrees. They cause legal uncertainty in electoral issues and lower the dignity of the courts. It makes things hard for those who seek justice, too,” he said. 

Agus then suggested three Electoral Court models in order to integrate the number of entrances towards electoral justice. The first model is that of a special judicial institution under the Supreme court. It is based on a new set of laws. Its duty is to process all types of electoral cases, whether administrative, criminal, or dispute electoral cases, including disputes concerning electoral results. 

The second model is an autonomous special judicial institution separate from and equal to the Supreme Court and Constitution Court. “This model will minimize potential judicial corruption existing in both the Supreme Court and the Constitution Court, because it is an entirely new system filled with entirely new people. However, it will require an amendment to Article 24 of the Constitution of 1945. This requires political consensus and special momentum,” he said. 

The third option is to transform the Bawaslu into a quasi-judiciary agency. Bawaslu’s duties will be more directed towards confirmation of administrative case rulings, electoral processes, and codes of ethics. Electoral crimes and electoral result disputes will still be handled by District Courts and Constitution Court, respectively. “We always have trouble in case of conflicts so far, as Bawaslu acts as both law monitor and law enforcer. How can the monitor take action and judge cases? Such a thing is highly unusual. Monitoring should be handed over to public agencies, such as electoral organizations or activists,” he said. (Dan)