IO, Jakarta – The lengthy process of electing a President and Vice President has finally arrived at its final stage. The Presidential Elections saw Presidential Candidate Pair 01, Joko Widodo-KH Ma’ruf Amin, standing against Presidential Candidate Pair 02, Prabowo Subianto-Sandiaga Salahuddin Uno. Today, 27 June 2019, the Constitutional Court (Mahkamah Konstitusi – “MK”) handed down its definitive verdict, rejecting the entirety of the Petition of Dispute against the Results of the 2019 Presidential Elections submitted by Prabowo Subianto-Sandiaga Uno.
With this judgment, the Jokowi-Ma’ruf Amin pair was declared the winners of the 2019 Presidential Elections. “We have tried, we hereby state, that in the exception we reject the exception made by the Respondent and Related Parties in its entirety. The substance of the Petition: to reject the Petition of the Petitioner in its entirety,” announced Constitutional Court Chairman Anwar Usman, as he read out the Order of Judgment in Presidential Election Dispute Hearing at the MK Building, Jalan Medan Merdeka Barat, Central Jakarta, on Thursday (27/06/2019).
In conclusion, the MK has the authority to try the “a quo” Petition. The Petitioner is said to have the legal standing to submit said a quo Petition. Furthermore, the Petition was submitted within the stipulated period. However, the exception of the Respondent and the exception of its Related Parties are groundless according to the law in its entirety. Petition of the Petitioner is groundless, according to the law.
MK has declared that the verdict regarding structured, systematic, and massive (terstruktur, sistematis, dan massif – “TSM”) administrative violations in Elections is the authority of the Elections Monitoring Agency (Badan Pengawas Pemilu – “Bawaslu”), while according to the law, the authority of MK is limited to a disputed vote count.
In its judgment, MK rejected all arguments contained within the Prabowo-Sandiaga Petition. MK considers the argument submitted to be groundless according to the law, because the Petitioner cannot prove the arguments of its Petition and their relevance to votes obtained.
First, an argument rejected, among others, the matter of “money politics” or vote-buying by Jokowi-Ma’ruf. The relevant argument is related to several accusations, from budget abuse to State program abuse performed by Jokowi. According to the MK Panel of Judges, Prabowo-Sandiaga’s Legal Team failed to refer to a specific legal definition related to money politics or vote-buying. The Presidential Candidate Pair 02 Team did not prove clearly that the argued items affected votes cast for Prabowo-Sandi or Jokowi-Ma’ruf. The Panel of Judges stated in the hearing that it has not found whether the Petitioner already reported the alleged suspicion of a violation to Bawaslu or not.
Second, Petition Argument concerning the suspicion of lack of neutrality among authorities. According to the Court, the Petitioner, i.e. Team Prabowo-Sandiaga, did failed to provide convincing evidence concerning the argument of lack of neutrality among State Apparatus. Petitioner Evidence being checked included documents, video, and witness testimony. “For example, Evidence P111. After a thorough check, the content was only the President’s instruction to the Police to “socialize”, i.e. to disseminate and acclimatize, Government programs to citizens. This is something that the President as Head of State and Head of Government would normally and naturally do. There was no request to vote for a specific Presidential Candidate Pair. The entirety of written evidence submitted by the Petitioner only consisted of photocopies of online news that cannot serve as legal evidence without being supported by other evidence. We still require other evidence, for the effect to be proven,” said the Constitutional Judge.
Third, MK refers to the argument whereby Prabowo-Sandi charge suspicion of mobilizing State officials and violation of the State’s Civil Apparatus’ (Aparatus Sipil Negara – “ASN”) neutrality, starting from the acceleration of ASN’s Religious Holiday Benefits (Tunjangan Hari Raya – “THR”), increased village fund monitors’ wages, support provided to a number of Regional Heads, to actions taken by a number of ministers, which can be considered as a “hidden campaign” for Jokowi. MK then stated that all of these issues have already been processed by Bawaslu. “As described above and mentioned in the hearing, Bawaslu has exercised its authority, no matter what the decision may be, i.e. for Petition Arguments number 1, 4, 5, and 13. Meanwhile, for the other Arguments, the Court did not find any evidence at the hearing as to whether the Petitioner ever submitted a complaint to Bawaslu of suspicion of TSM violations,” said a Constitutional Judge.
Fourth, the argument concerning the Election Commission’s Vote Count Information System (Sistem Informasi Penghitungan Suara Komisi Pemilihan Umum – “Situng KPU”) related to the loss of 2,871 votes a day for Prabowo-Sandiaga. This argument stated that the Joko Widodo (Jokowi)-Ma’ruf Amin Presidential Candidate Pair also increased its votes. “The video evidence that they submitted was only a narrative that there are Facebook accounts that added to and subtracted from Presidential Election votes. This is in accordance with Situng’s position that it is not the basis for summarizing vote counts, because there was still a possibility of corrections and amendments. The narrative did not explain anything related to the final result of the vote summaries for each Presidential Candidate Pair,” concluded Constitutional Judge Enny Nurbaningsih.
Fifth, concerning Prabowo-Sandiaga’s charges over the lack of ASN neutrality. MK reiterates that the resolution of ASN’s neutrality, or lack of it, is the authority of Bawaslu.
Sixth, MK considers that the argument of the existence of Ghost Voting Booths that was submitted by Prabowo Subianto-Sandiaga Uno’s Legal Team in the dispute charges relating to the 2019 Presidential Elections as unclear. MK considers that the argument cannot be proven, because the evidence submitted by Team 02 cannot show clearly which Voting Booths were meant to be Ghost Voting Booths.
Seventh, MK said that the argument of Prabowo-Sandiaga’s Legal Team concerning 17.5 million suspicious entries in the Final Voters’ List (Daftar Pemiliih Tetap – “DPT”) data items plus 5.7 million suspicious Special Voters’ List (Daftar Pemilih Khusus – “DPK”) data items having caused illegal expansion of votes for Joko Widodo (Jokowi)-Ma’ruf Amin, was not proven. MK declared that arguments relating to this issue were irrelevant.
Before arriving at this final hearing, a series of hearings were held from Friday 14 June to Friday 21 June. The Petitioner in this case was Presidential Candidate Pair Number 02 Prabowo Subianto-Sandiaga Salahuddin Uno. In the Petition Argument, the Prabowo-Sandiaga Legal Counsel stated that structured, systematic, and massive fraud occurred in the 2019 Presidential Elections. Meanwhile, the Election Commission (Komisi Pemilihan Umum – “KPU”) was the Respondent, while Presidential Candidate Pair Number 01 Jokowi-Ma’ruf was the Related Party.
Presidential Candidate Pair 02 versus KPU and Presidential Candidate Pair 01
During the hearing of the case, there were several points of interest, starting from the Prabowo-Sandiaga Legal Team’s request that the MK disqualify Presidential Candidate Pair Joko Widodo-Ma’ruf Amin as participants in the 2019 Elections. This is because they accused Presidential Candidate Pair Number 01 of having perpetrated structured, systematic and massive fraud. They also requested that MK declare Presidential Candidate Pair Number 02 as winners of the Presidential Elections, or at least order a repeat of national Elections. Prabowo-Sandi Legal Team Chairman Bambang Widjojanto accused President Jokowi, as the incumbent, of having perpetrated at least five types of fraud during the 2019 Presidential Elections.
These were described as: abuse of the State’s Budget and Governmental Work Programs; abuse of State bureaucracy and State-owned Enterprises (SOE); lack of neutrality among the State Civil Apparatus, police, and intelligence; limitations on freedom of the press; and discriminative and abusive actions of law enforcement. Bambang claimed that these violations and frauds are structured, systematic, and massive. “Meaning that they are structurally performed and planned by the authorities, including numerous regions, and the plans massively impacted a wide area throughout Indonesia,” said Bambang.
Meanwhile, KPU considers Prabowo-Sandi’s Petition to be unclear. In fact, KPU has requested MK to reject the entirety of the Prabowo-Sandi Petition. “We request that MK reject the Petition of the Petitioner in its entirety,” said KPU Legal Counsel, Ali Nurdin, when he read out the response of his side towards the Presidential Elections dispute submitted by Prabowo-Sandiaga Uno in the MK courtroom, Jakarta, on Tuesday (18/06). KPU also requested that MK declare that the KPU RI Decree Number 987 concerning the Validation of the Results of 2019 Elections dated 21 May 2019 to be valid, i.e. stating that the votes obtained by Presidential Candidate Pair 01 Joko Widodo-Ma’ruf Amin to be valid at 85,607,362 and the votes obtained by Presidential Candidate Pair 02 Prabowo-Sandi to be valid at 68,650,239.
According to KPU, the party of Prabowo did not clearly describe when, where, and how violations were perpetrated, or who did what, when, where, and how did they do it. KPU further stated that Prabowo-Sandi’s Petition Argument concerning 17.5 million suspicious DPT data items is also vague, as the Petitioner did not explain: who these suspicious voters are; what is meant by “suspicious DPT data items” in actuality; from which regions these suspicious voters come from; where did they exercise their voting rights; whether they voted at Ghost Voting Booths or not, and if they voted in Ghost Voting Booths, in which Ghost Voting Booths did they vote; who did they (i.e. suspicious voters) vote for; and what damages were suffered by the Petitioner. The accusation that there were 20,475 voters younger than 17 years of age (i.e. majority age) was also unclear, as the Petitioner did not say who they (i.e. minor voters) were; where did they exercise their voting rights; whether they voted at Ghost Voting Booths or not, and if they voted in Ghost Voting Booths, in which Ghost Voting Booths did they vote; who did they (i.e. suspicious voters) vote for.
On the other hand, the Jokowi-Ma’ruf Legal Team stated that Prabowo-Sandi’s Team failed to present solid evidence. They referred to “post-truth politics” when they responded to Prabowo-Sandiaga’s charges in the 2019 Presidential Elections Dispute Hearing at MK. They requested that MK critique these post-truth charges made by Presidential Candidate Pair 02’s side. “Related Parties consider it to be extremely important to analyze and critique the narrative that serves as the Petition Argument of the Petitioner,” said Presidential Candidate Pair 01’s Legal Team Chairman, Yusril Ihza Mahendra, in the follow-up hearing of the Presidential Elections dispute at MK Building on Tuesday (18/06/2019). Presidential Candidate 01’s Legal Team notes that the narrative of fraud was repeated continuously, without any valid evidence. A claim of victory was also made without showing a valid count. The Presidential Candidate 01 Legal Team did not want the Presidential Elections dispute to be handled based on such baseless accusations. They expected the Presidential Candidate Pair 02 Legal Team to provide fact-based evidence for these accusations in the charges.
In this Presidential Election Dispute Case, Prabowo Subianto-Sandiaga Uno’s Legal Counsel brought in 14 witnesses and 2 experts. These witnesses and experts mostly questioned the finding of invalid data items in DPT, the high number of Ghost Voting Booths, to the accusation of unreliable Situng belonging to KPU. Meanwhile, KPU did not call in any witnesses and only brought in an expert in the hearing held on Thursday (20/06/2019) – an IT expert that explained a lot concerning the mechanism of data input in the Situng.
KPU Commissioner Hasyim Asy’ari said that the witnesses brought in by Presidential Candidate Pair Number 02 Prabowo-Sandi’s Legal Team were not sufficiently convincing in their attempt to strengthen the Petition Argument. Therefore, KPU did not need to bother bringing in witnesses, but they only needed to bring in experts. “As we progress with the hearing, KPU found that the people brought in as witnesses by Petitioner to be insufficiently convincing for strengthening Petition arguments,” said Hasyim at MK Building, Central Jakarta, on Thursday (20/06/2019). “In this case, KPU finds it sufficient that it should bring in evidence in the form of expert testimonies.”
Meanwhile, in the follow-up hearing held on Friday (21/06/2019), Jokowi-Ma’ruf Legal Counsel brought in two witnesses and two experts. The two witnesses testified concerning the agenda items of Jokowi-Ma’ruf’s National Campaign Team (Tim Kampanye Nasional – “TKN”) during campaign period. The two experts testified concerning the meaning of structured, massive, and systematic (TSM) electoral violations.
The atmosphere warmed up slightly during the closing of the MK hearing as Constitutional Court Chairman Anwar Usman was preparing to adjourn the 2019 Presidential Election Dispute Hearing at MK Building, Jakarta, on Friday (21/06/2019). At the time, Prabowo Subianto-Sandiaga Uno Legal Team Chairman Bambang Widjojanto interrupted the proceedings and requested 1 minute to the Panel of Judges to read out a verse of the Holy Qur’an, specifically An-Nisa Verse 135, which discussed justice and fairness. “(A calligraphy of the) An-Nisa Verse 135 that is hung before MK is a holy verse that explains the desire to realize fairness and justice. Therefore, in order to bring in grace and blessings to this Panel, I only request a minute of your time for my friend to recite this verse,” said Bambang. When the approval was given, Prabowo-Sandiaga Legal Team member Zulfadli read out the verses and its meaning in Indonesian.
Constitutional Court Chairman Anwar Usman then allowed KPU as Respondent, as well as Joko Widodo-Ma’ruf Amin’s Team as Related Parties alongside Bawaslu, to read out their closing statement for the day, “For the sake of fairness,” said Anwar. In the closing statement, KPU Chairman Arief Budiman expressed his thanks to everyone who were involved in the successful organization of the Elections. Arief hopes that the hearing at MK would help realize what all Indonesians hope for: “And we shall fully entrust the Honorable Judges of the Constitutional Court to hand down the fairest and most just decision possible,” said Arief. Meanwhile, Yusril Ihza Mahendra hoped that the An-Nisa Verse 135 recited by Presidential Candidate Pair 02’s team member can serve as a guideline for the Panel of Judges in making their decision. “We have also quoted the very same verse in the first pages of our Response as Related Parties,” said Yusril. He further stated that so far, the hearing at MK progressed honestly and fairly. He believes that the Panel of Judges will issue the fairest and most just decision possible. Before closing, Anwar Usman also quoted An-Nisa ayat 58 (a verse describing Allah’s order to execute mandates properly towards their beneficiaries, and to judge fairly when creating laws). Anwar stated his resolve to adhere tightly to these principles as a judge.
The Essence of Democracy
According to Adhie Massardi, Coordinator of the Clean Indonesia Movement, MK is delegated responsibility to process disagreements in democratic processes. Democracy has two aspects, i.e. laws and elections. Unfortunately, from the first generation of MK since its inception in 2003 until now, Constitutional Judges are not required to comprehend the principles of democracy. They are only required to understand laws and the Constitution, while the processing troublesome democratic processes must refer to the principles of democracy, i.e. morality, ethics, and naturally, valid laws. This is why MK verdicts, whether in terms of laws or electoral results, do not reflect adherence to the principles of democracy. This is very clear in the context of Presidential Election disputes when Constitutional Judges chased down the facts being disputed by the Petitioner. “Legal facts are important in this court, while democracy is not only measured from valid and convincing legal evidence, but also from its processes,” said Adhie.
Constitutional Judges should have ascertained why the Petitioner brought in their issue to MK, i.e. because of dissatisfaction with Electoral Organizers. They should have checked whether Electoral Organizers have performed their electoral duties transparently or not, whether they respect morality or not, whether they respect propriety or not. Constitutional Judges should have understood that evidence for Election cases is by its nature complicated. In a democratic context, evidence of fraud or violations is frequently based not on whether laws were violated or not, but rather whether they should have been checked for propriety – are they proper or not? For example, conglomerates having contributed billions of Rupiah to Presidential Elections is not proper, even though it does not violate the law, because there are limits of the value of the contribution. The same goes for surreptitious use of power, i.e. by ordering State Civil Apparatus to participate in the Elections. It is fine for incumbent regents, governors, or presidents to make State Administration policies, but if such policies were made nearing Elections and affecting voters, we can be sure that they would be adjudged improper and should be classified as an abuse of power.
This is something that the Constitutional Judges must understand, because nobody will have valid physical evidence such as the actual Final Voters’ List because the entirety of such documents can only be possessed by KPU. How much power does a candidate have in collecting actual, valid C1 Forms? Therefore, Constitutional Judges with knowledge of democratic principles should also have evidence from Voting Booths that show that violation in Elections really did occur. However, so far electoral violations have only been assumed, such as in cases of direct cash assistance, funds distributed to villages nearing the Elections, that cannot serve as evidence of legal violations.In other words, considerations for something relating to Elections should refer to morality and ethics. These are the two most important things in democracy, because Elections produce people who become public officials. If they violate propriety and common public morality, they would be seen as public officials with bad things to hide. This is why propriety and morality are very important in democratic countries.
Something that must also be understood by Constitutional Judges in democratic process in Indonesia is the role of witnesses. “Why should electoral candidates mobilize witnesses at Ghost Voting Booth? Is it because they do not trust Electoral Organizers? Other countries that hold elections do not have contestants that mobilize witnesses, while mobilizing witnesses at each Ghost Voting Booths erected in each election would require relatively large amounts of money. Especially since in fact, KPU is not transparent and did not follow the law that vote summaries must be posted in public spaces for a certain amount of time,” Adhie said.
In the end, people dispute the presence of witnesses, and these witnesses then become legal facts. “I think that these witnesses are not too important as legal facts, but they can serve as messengers – they can report to Constitutional Judges whether ethics or morality is being violated or not. Therefore, witnesses should not be badgered about the truths that they stated,” he said.
Throughout the history of MK, Adhie notes that since the process has never referred to the principles of democracy, it is always difficult for Petitioners to win in these dispute cases, because it is literally impossible to bring in evidence of electoral fraud, such as actual pre-used votes from Malaysia, or manipulated C1 Forms.
Meanwhile, BW, Chairman of Presidential Candidate Pair 02 Legal Counsel Team, considers these Elections to have been the very worst Elections ever held in the Era of Reform. First, no Elections in the world resulted in more than 700 fatalities. Second, is there any law enforcement process that can reveal 400,000 envelopes used by an Electoral Region Campaign Coordinator in Central Java in the previous period? Third, State Administrators were actively, massively, and systematically involved. The question is, “Is the person competing a Presidential Candidate, or are we fighting an incumbent that is becoming a Candidate President?” Incumbents can freely use all of the State’s resources for candidacy purposes.
Four, many of Bawaslu’s recommendations for repeat voting, especially in Papua and Surabaya, were not followed up on. This shows a structural problem in electoral law enforcement. Fifth, we have performed the same idiocy without any respite for years. Indonesia has been independent for 74 years, but DPT remains an issue. Our people are simply too stupid when it comes to DPT issues. DPT is not just related to Elections: it contains Citizenship Registration Numbers (Nomor Induk Kependudukan – “NIK”) according to the legal basis of Government Regulation (Peraturan Pemerintah – “PP”).
There are four types of DPT problems in relation to Elections: falsified NIKs, false districts, double voters, and underage voters. These are proof that DPT is a source of vote padding fraud. “We found that even unborn children are included in the DPT, or in other words, they voted too,” he said.
DPT issues, we repeat, are not only related to votes. If demographic data is not proper, corruption can occur in relation to the “Rice for the Poor” (Beras Miskin – “Raskin”) program, direct cash aid, and even at all stages of the electoral process. “There is a black market for vote trading,” said BW. “Our Petition is actually not about winning or losing, but we want to make an optimal contribution to this people in resolving such basic issues. The heart of this electoral dispute is improper DPT due to falsified NIK. DPT is a source of votes for which many fight. Therefore, we need to resolve the DPT issue.”
BW admitted that so far, the dispute is about matching C1 form data against actual C1 forms, but this is hard to prove. Therefore, Presidential Candidate Pair 02 Legal Counsel Team brought in Prof. Jaswar, an IT forensics expert. He used 8 forensic methods that prove that there are specific patterns of issues in the DPT. If C1 forms that are uploaded into the Situng are found to be problematic according to forensic assessment, then MK must open itself to accepting evidence from such scientific investigation.
Information technology should be a solidly established part of the KPU, and that includes the Situng. Situng is used for socializing, transparency, accountability, and digital track recording purposes. Situng is extremely important. C1 forms are only kept by Election Organization Groups (Kelompok Penyelenggara Pemungutan Suara – “KPPS”) and witnesses from the Election Monitoring Committee (Panitia Pengawas Pemilu – “Panwaslu”) or regional Bawaslu. Putting a control function in the Situng upload process would help establish and maintain its accountability. Socialization is not enough. With that function, Situng would have a legal standing, and its existence would be protected. However, it seems that the calculation result differs from the result of the multiple-stage count. The results at Situng should be the same as those of the multiple-stage count summarizing.
“We suspect that the IT system at KPU has poor reliability. This is indicated by KPU’s persistent refusal to state whether the IT system that it developed is audited, or whether the system is compliant with ISO or Government regulations that regulate such issues. Under this condition, there is a likelihood that KPU’s IT system is open to intruders. We can test using a forensic audit, and we can catch the culprit. This would reinforce honesty and justice,” BW said.
“When we do this, what we are doing is testing a level of constitutionality, as the MK is the speaker for laws that are in line with the Constitution. If the process is fraudulent as proven by improper DPT, we would find that the (Election) result is fraudulent (as well). Presidential Candidate Pair 02 Team presents 3 types of evidence: the forensic audit results of our own IT team, witness testimonies, and supporting factual information. Furthermore, we note that there is a violation of candidacy requirements relating to Vice-Presidential Candidate 01. If we test it, assess it, and use it as the basis of our consideration, we can use this as a requirement to disqualify the Presidential Candidate Pair.
Our movement is based on values. In other words, let us battle in values; we are building and creating history. The Lawyer Team heard the mandate from the public: there are at least 60 million people who feel that their sovereignty was robbed from them. We work on the basis of public morality. The main issue of this nation is that we have not set honesty and justice as the basis of our character. Therefore, what we are submitting is actually our effort to establish the characteristics of honesty and justice: it is not simply a matter of victory. We want to use the MK as a forum for educating the nation, as mandated by the Constitution. This nation was established with an agreement to make our people intelligent, so we came to MK to educate our people through this forum,” BW said.
Universitas Al Azhar Indonesia (UAI) Political Observer Ujang Komarudin expressed his appreciation of the proceedings of the Presidential Elections dispute hearings, especially that of Presidential Candidate Pair 02’s Legal Team. He sees a new paradigm in dispute hearings: “Dispute hearings (relating to Elections) generally check for changes in counts between the two candidates. However, in this case they seek to prove their accusations of structured, systematic and massive fraud. The new paradigm of this hearing is very important in the context of democracy. We hope that our democracy can run properly in the future and there will be no fraud,” Ujang said.
Hope for the Future
According to Ujang, the 2019 Presidential Elections stand as a valuable political lesson for our nation. We should not become enemies of one another just because of Presidential Elections. What we must do is maintain our unity, because developing Indonesia requires unity. “Today, we see that the people have already been divided and polarized into two sides. What the winning side should do is to embrace the losing side. This is something usual in democratic countries, for example in America. When Obama competed against Hillary Clinton and she lost, he embraced Hillary. Obama then reimbursed Hillary’s campaign funds and appointed her as US Secretary of State. This is an excellent example of reconciliation in America,” he said.
As for Indonesia, it is not impossible that Prabowo and Jokowi would meet and reconcile after the MK verdict was handed down. It is possible for them to achieve consensus and agreement for developing the nation in the future. “I think both Pak Prabowo and Pak Jokowi are proper statesmen. The winner embracing the loser is a necessity. The idea is to meet and reconcile, because when the elites unite and negotiate peacefully for issues that can develop the nation, the people will be able to unite. People who have become distant are slowly becoming close again, people who are polarized reunite. This is what is important,” Ujang said.
In our Constitution, MK is the final battle of any two battling sides. Its decisions are final and binding, even though that is less than satisfactory for the losers. There are no other courts or instrumentalities that can serve as an appeal for charges after the MK, whether in this country or abroad. (Dessy Aipipidely, Ekawati)