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Never ending conflict in governor and vice election process still goes on. President decision to inaugurate Thaib Armaiyn and Abdul Gani Kasuba as Governor and Vice of North Maluku (Malut – for short) did not automatically solve the problems arising around election of an area previously part of Maluku Province.

The President decision as put in President Decree No. 85/P/2008 which installs Thaib Armaiyn-Abdul Gani Kasuba pair as elected governor and vice was considered to have taken over and abandoned Malut Election Commission in holding Regional Election. Thus, the action was then brought by the Malut Tindakan Presiden tersebut kemudian digugat oleh Malut Election Commission to the Constitutional Court.

In the initial examination held on Thursday (13/11) at the Constitutional Court s Building, Legal Counsel of Malut Election Commission Bambang Widjojanto presented his claim to the Justice Board requesting the Constitutional Court to state that the President as Petitionee had violated – or at least taken over and/or abandoned Malut Election Commission s constitutional rights as election organising institution in Malut. The Commission demanded that the Constitutional Court would order the Petitionee to   anulled the Decree No. 85/P/2008 and announcing the Malut Parliament proposition about installing Dr. H. Abdul Gafur and H. Abd. Rahim Fabanyo as elected Governor and Vice as stated by Malut Election Commission in the Decree No. 23/KEP/PGWG/2008.

According to Bambang Widjojanto, Presiden only has an authority to legalize the winner of an election without being able to decide the winner of regional election. According to Article 22E paragraph (5) and (6) of the 1945 Constitution, said Bambang, the Election Commission was the authorized institution to conduct all stages of election, including to announce the winner. “if this goes on, there will always be a potential for abuse of power,” said Bambang.

Bambang considered the Petitioner s action by issuing a Decree had taken over and abandoned the Commission constitutional authority in deciding the elected candidate pair. Actually, according to the Petitioner, based on Supreme Court Verdict No. 03 P/KPUD/2008 dated January 22, 2008, the Petitioner had conducted a recounting on February 20, 2008 resulted in Abdul Gafur and Abd. Rahim Fabanyo pair as the winner. Meanwhile, the Decree according to the Petitioner was based on the recounting result on February 11, 2008 conducted by the Head and Members of Malut Election Commission which were temporarily dismissed by the Central Election Commission.

Trelated to the recounting conducted by inactive Head and members of Malut Election Commission, the Petitioner stated that they had informed the Petitionee about the illegal status of the result. Meanwhile, by the letter No. 022/KMA/III/2008 and No. 099/KMA/V/2008, in the Legal Opinion of Malut election, according to the Supreme Court, the Supreme Court only provided the guideline for resolution according to Article 109 paragraph (3) of Act No. 32/2004.

Responding to the demand, Head of Justice Panel Board, Abdul Mukthie Fadjar, questioned the position of National Election Commission in this claim. Based on Act No. 22/2007, the National Election Commission has a hierarchial structure which cause the holding of general election, including the one in Malut, becomes the authority of National Commission. Therefore, advised Mukthie, the Petitioners needed to consider the National Election Commission to be a related party to the Petitioners side. Mukhtie also reminded that in dispute over State Body’s authority, argumentation on Petitioner s legal standing as a State Body whose authority was regulated within the 1945 Constitution had to be really firm.

Similar opinion were also said by Constitutional Justice Maruarar Siahaan and M. Akil Mochtar. According to Maruarar, the position of Malut Election Commission as a Petitioner had to possess firm argumentation grounds. Moreover, he added, the complexity of the case in certain stages had directly involved National Election Commission in determining legal and illegal Regional Election Commission. Therefore, according to Maruarar, “Central Election Commission also has a big importance to be one of the Petitioners.”

Responding to the advices, Petitioners Legal Counsel argued that National Election Commission at the moment were facing deadline for National Election Process. “if the National Commission is involved in this case, (We – the Petitioners) are worried that the national election process would be disturbed,” said Bambang. Even though so, Bambang emphasized that he would consider the advices from Justice Board. [ardli]

Foto: Dok. Humas MK/Kencana SH

Translated By Yogi Djatnika / MK

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