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Experts presented by both the Petitioner and the Petitionee rebutted each other when delivering information in the trial for dispute over state bodies authorities between the North Maluku Election Commission and the President of the Republic of Indonesia, Thursday (8/1) at the Constitutional Court (the Court) Building, Jakarta.

Experts attending the trial were among others, M. Fajrul Falaakh (an expert in state management of Gadjah Mada University), H.M. Hadin Muhjad (an expert in state management and election), Indria Samego (a political expert from Indonesian Science Institution (LIPI)), and Boenyamin Mangkoedilaga (a former judge in the Supreme Court). The four experts was brought forth by the Petitioner, the North Maluku Election Commission (the Commission). Meanwhile the President sitting in the opposite side as the Petitionee presented Satya Arinanto (an expert in state management from the University of Indonesia), A. Irman Putra Sidin (Director of Indonesia Legal Roundtable), Hadar N. Gumay (Director of Cetro), Suharnoko (an expert in penal code from the University of Indonesia), Zudan Arif Faturullah (an expert in state administrative law), J. Kristiadi (an expert in politics from CSIS), and Anna Erliana ( an expert in state administrative law from the University of Indonesia).

Fajrul Falaakh, an expert in state administrative law from Gadjah Mada University presented by the Petitioner said that the authority to conduct the election as arranged in the 1945 Constitution was provided to the General Election Commission which was nationwide and hierarchial. Meanwhile to do the regional election, according to Fajrul, the Election Commission could provide a delegative authority to the Regional Election Commission. Because of that, Fajrul said, a regional election commission was also a state body because it had a delegative authority from a state body, that was the Election Commission.

However, the opinion was rebutted by A. Irman Putra Sidin and Zudan Arif Faturullah, an expert presented by the Petitionee. Irman, despite being agree on the fact that the Regional Election Commission was a state body; still he considered the Regional Election did not have the authority provided by the 1945 Constitution. Meanwhile state bodies with legal standing to have a case at the Court were State Bodies whose authority was provided by the 1945 Constitution. According to Irman, the institution with the authority as provided by the Constitution to organize the election was the Election Commission. “Regional Election Commission was a subordinate institution,” said Irman.

Irman also considered that the Regional Election Commission did not have a direct importance towards the President s Decree about the announcement of elected governor and vice, hence it was irrelevant for them to file a case to the Court. Ia believed that if the Regional Commission felt to have an importance, then the Commission had chosen a side and not been independent in holding the stages of regional election.

That opinion was backed by Zudan who saw that a subordinate institution could not represent its superordinator without a mandate of special letter of authority. Therefore, according Zudan, the Regional Commission could not represent the Central Commission in such a dispute over state bodies authority case.

On contrary, another expert from the Petitioner, H.M. Hadin Muhjad, considered the 1945 Constitution had provided the authority to the Regional Commission to hold the election. According to the expert on state management and election, Article 18 of the 1945 Constitution indirectly had given the authority to Provincial Election Commission to hold a gubernatorial election. The authority, he said, was explained further by Article 1 number (1) of Act No. 22/2007 about General Election. Thus, added Hadin, “if an authority is constitutional, then the carrying out institution is a state body.”

Abnormal
Meanwhile another expert from the Petitionee, Hadar Gumay saw that the President s decision to set the governor and vice governor of North Maluku according to the decision of the Supreme Court had been a right decision. According to Hadar, a judicial institution had the highest authority to settle every dispute, including electoral dispute.

Hadar also considered that the dispute involving the election holders in the North Maluku election process caused the election went in abnormal condition. Therefore, according to Hadar, the dispute could not be settled by the Election Commission themselves, but by a court to avoid the conflict of interests. Hence, Hadar said that in this case there were no authority takeover done by the President because the President only carried out the decision of the Supreme Court. 

This case begun by the action of President SBY issuing a Presidential Decree to set candidate pair Thaib Armayn and Abdul Gani Kasuba as governor and vice governor of North Maluku Province. However, North Maluku Election Commission saw the President’s step by issuing Decree No. 85/P 2008 as taking over and ignoring the Election Commission s constitutional authorities in deciding the elected candidate of North Maluku Gubernatorial Election.

Actually, according to the Petitioner, based on the Supreme Court s verdict No. 03 P/KPUD/2008 on January 22, 2008, North Maluku Commission had done another recapitulation on February 20, 2008 which set Abdul Gafur and Abd. Rahim Fabanyo as the winner of the election. Meanwhile, the Decree, according to the Petitioner was based on the result of a repeat recapitulation on February 11, 2008 done by the suspended Head and Members of the North Maluku Commission by the Central Election Commission.

Nevertheless, according to the President, the repeat recapitulation procedurally as the Supreme Court said was the recapitulation done by the Head and Members of the North Maluku Election who had been made inactive by the Central Election Commission. The President, using the Supreme Court decision as the ground, in fact considered the Central Election Commission action to make the Head and Members of the North Maluku Commission inactive had been legally void.

Besides listening to the experts, the same trial also head the information from witnesses presented by both sides. Among the witnesses were the inactive Head and members of the North Maluku Commission, a member of North Maluku Election Monitoring Team, also another candidate pair who were lost in the election. According to the schedule, the Court would announce its decision on this case early February 2009. [ardli]

Photo: Doc. CCRI PR/Andhini SF

Translated by Yogi Djatnika / CCRI

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