The Constitutional Court ordered to do a re-election for Second Round East Java Election in Bangkalan Regency and Sampang Regency within 60 days and a re-counting in Pamekasan Regency within 30 days, after the Court s Decision was announced. That was announced in the decision readout trial for case 41/PHPU.D-VI/2008,  Tuesday at the Court s Plenary Room.

The decision was based on legal facts that in certain regencies in East Java obviously there had been serious violations done in a systematic, structured and massive way. Besides that, the violations were not only during the election process, but they had to be tracked back to events before the election.

Related to the decision, according to the Court, even though in the posita and the petitum of Khofifah Indar Parawansa dan Mudjiono only pleaded the Court in general to state the recapitulation resuolt done by the Petitionee (East Java Election Commsision) in the second round of the election was anulled, but Khofifah-Mudjiono (a candidate pair who objected the Decision of East Java Election Commission No. 30/2008 dated November 11, 2008 about the Recapitulation of Second Round East Java Election) also demanded the Court to decide ex aequo et bono which could be interpretted as pleading to the justices to decide fairly in the event that they had different opinion from what was demanded in the petitum.

The Court also quoted G. Radbruch who stated “Preference should be given to the rule of positive law, supported as it is by due enactment and state power, even when the rule is unjust and contrary to the general welfare, unless, the violation of justice reaches so intolerable a degree that the rule becomes in effect “lawlesslaw” and must therefore yield to justice.” [G. Radbruch, Rechtsphilosophie (4th ed. page 353. Fuller s translation of formula in Journal of Legal Education (page 181)].

The Court s considered that as a constitutional judicial institution, the Court could not let the rules in procedural justice inhibited and put aside the substantive justice, because the legal facts had clearly shown the constitutional violations, especially to Article 18 paragraph (4) of the 1945 Constitution which ordered the Regional Election to be conducted in a democratic way and did not violate the general election priciples; direct, general, free, secret, honest and fair as mentioned in Article 22E paragraph (1) of the 1945 Constitution.

There was also another principle in law and justice followed universally which stated that there should not be a single party taking advantage from the violations and misconducts done by the party itself and there should not be a side feeling disadvataged by the violations and misconducts done by other party (nullus/nemo commodum capere potest de injuria sua propria). “Hence, there shall not be a single candidate pair given the advantage in the vote result caused by the violations in the constitution and justice principles in holding a general electio,”  explained Constitutional Justice Maruarar Siahaan.

Consequently, the Constitutional Court realized the importance of creating a legal breakthrough to develop democracy and run away from the habit of doing systematic, structured and massive, violation practices. “if this could limits itself on the re-counting of the result announced by the East Java General Election, it will be more likely that justice never prevails to settle the dispute over the election because it will be more likely the Decision of the Election Commission was resulted from a process which was against the law and justice procedures,” continued Constitutional Justice Maruarar Siahaan.

Because of the serious violations done in a systematic, structured and massive way, then, according to the Constitutional Court, there had to be an improvement effort through its decision that was to annull all the recapitulation result in certain locations and releasing the result from the total recapitulation. If the Court were only settling the recapitulation result in certain areas were secluded from the final recapitulation, as the result there would be unjust, because it meant that the people s votes in those areas as a part of the sovereignty holders were eliminated.

“Because of that, for the sake of enforcing fair democracy based on law, the Court considered what to do was to conduct a voting in certain area or part of the area and a re-counting for the other area” exclaimed Maruarar.

In deciding which area to do the re-election and which area only to re-count the result, the Constitutional Court based their reasoning on the level of intensity and the weight of the violations happened in that electoral area. As the result, Bangkalan and Sampang Regencies were told to do a re-election; meanwhile in Pamekasan Regency, a re-counting were told to be held with the method and the recording based on the form set by the Election Commission and was open to each Candidate pair.

“the postive thing that could be learned from such decision was that in the coming days, general election in broader sense and regional election in specific, could be held on the basis of direct, general, free, honest and fair principles without being injured by serious violations, especially the one done systematically, structured, and massiv. Such decision from the Court was still in the coridor of settling the dispute over Regional Election results and not settling the violation pprocess, so that the violations on the process could be settled further through the available legal channel,” said the Chief Justice of the Constitutional Court, Moh. Mahfud MD.

For that, the Constitutional Court also ordered the Election Commission and Election Watchers Institution to guard the re-voting and the vote recapitulation according to each institution s authorities and with the spirit to conduct an Election which was direct, general, free, honest and fair. (Luthfi Widagdo Eddyono)

Photo: Doc. MK PR/Andhini SF

Translated by Yogi Djatnika/MK

Tuesday, December 02, 2008 | 12:15 WIB 192