Former Constitutional Justice Abdul Mukhtie Fadjar in a Focus Group Discussion in the Constitutional Court, Tuesday (29/3) in Education and Training Room, 8th Floor of the Constitutional Court Building.
Jakarta, MKOnline - Since the decision of the Constitutional Court (The Court) for dispute over East Java election result in 2008 case, a new vocabulary existed and became popular, that is violation which is systematic, structured and massive in nature. In the mentioned decision, it was the first time for the interpreter of the constitution institution to use such violations as grounds to decide on regional election dispute cases.
“The election violations which are systematic, structured and massive are violations that are planned from the beginning, whether by the state, election organizer or participants of the election, which are widely spread and really destroyed the ‘luber’ (direct, general, free, and secret) and ‘jurdil’ (honest and fair) principles of the election. Hence, it is not only violations which are incidental, individual and sporadic that can be tolerated to certain extent,” described Constitutional Justice Abdul Mukthie Fadjar in a Focus Group Discussion among The Court’s employees,Tuesday (29/3) afternoon.
The emergence of the vocabulary ‘Systematic, Structured and Massive Violations’ in regional election was during a Justice Deliberation Meeting to discuss the future decision of The Court for East Java election dispue cases at the end of 2008.
“From the panel session lead by Justice Maruarar Siahaan with Arsyad Sanusi and Muhammad Alim as members, it was revealed through information from witnesses that there had been serious election violations especially in four regencies in Madura conducted by government apparatus, Election Organizer apparatus which were planned and widespread to win one of the candidates in the second round,” explained Mukthie Fadjar.
At that time, the Panel of Justices suggested that the other candidate who were considered to do serious violations to be disqualified; at least, the votes for them in four regencies in Madura to be disregarded or transferred to the opposing candidate. “On the suggestion from the Panel of Justices, I made a statement that it was high time for The Court entered the domain of serious election violations which were disruptive to the principles of the election as stated in Article 22E Paragraph (1) of the 1945 Constitution in conjunction with Article 56 paragraph (1) of Act 32/2004,” Mukthie described.
At that time Mukthie offered three categories for the violations which were seriously disrupted the ‘luber’ and ‘jurdil’ principles; violations which were systematic (planned, not incidental), violations committed by structural apparatus (government apparatus or election organizer apparatus, not individuals), violations which were widely spread (massive, not sporadic).
However, Mukthie disagreed should the sanction to be imposed on the violations during the East Java election was in form of disqualifying a candidate pair because it would hurt the voters who were probably good voters. He advised that it would be better if a re-voting and/or re-capitulation were held.
”My opinion was received by the Meeting and it was decided to have a re-voting in two regencies, Bangkalan and Sampang while a re-capitulation in two regencies, Pamekasan and Sumenep according to the gradation of the violations,” Mukthie pointed out.
Before closing the FGD, Mukthie concluded that the sessions for election cases could not avoid the possibility of discovering criminal or administrative violations in all stages of the election as the consequence of The Court protecting the principles of the general election so that the quality of the election would improve and could fulfill the substantive justice. There was also a need of closer and more intense cooperation between the Election Monitoring Body and The Court in revealing the violations, including the ones revealed by the Election Monitoring Body/Committee according to the existing law.
“Besides, it is important to give new roles and position to the Election Monitoring Committee in the sessions held by The Court as ad informandum and/or amicus curae (friends of the court) for The Court as an effort to improve the quality of the election to uphold ‘luber’ and ‘jurdil’ principles,” concluded Mukthie (Nano Tresna A./mh/YDJ)
Tuesday, March 29, 2011 | 16:59 WIB 268