Deputy Chief Justice of the Constitutional Court Aswanto closing the Technical Assistance on the Procedure of the 2019 Elections Results Dispute Resolution (PHPU) for Berkarya Party, Friday (8/2) at the Pancasila and Constitution Education Center of the Constitutional Court. Photo by Humas MK/Ilham.
The reason the Constitutional Court organized the Technical Assistance on the Procedure of the 2019 Elections Results Dispute Resolution (PHPU) for Berkarya Party was the Court’s vision to be a modern judiciary that facilitates justice seekers and a reliable judiciary for justice seekers in reclaiming their rights. This was conveyed by Deputy Chief Justice of the Constitutional Court Aswanto as he was closing the event on Friday (8/2/2019), at the Pancasila and Constitution Education Center, Bogor.
In his speech, Justice Aswanto said that one of the authorities of the Constitutional Court is resolving legislative and presidential elections disputes, as well as the additional authority of resolving regional election disputes until a special judiciary is formed. He stressed that the 2019 Elections contestants should maintain secrecy so that sense of justice not be taken away during elections. “However, if you feel that justice is taken away, political parties should not [act like vigilantes], because you can file a petition to the Constitutional Court,” he said.
He requested that in submitting a petition to the Constitutional Court, the election participants use valid evidence of the hologrammed C1 form. He reminded them not to use notes from witnesses at the polling station (TPS) as evidence in the Constitutional Court. He also reminded the Berkarya Central and the Regional Executive Boards administrators, who were in attendance, to resolve the party any dispute between party candidates internally.
Justice Aswanto also reminded that petitioners should pay attention to the petition submission deadline because, based on experience, many parties submitted their petitions at the last moment.
On the second day of the event, Second Junior Registrar Triyono Edy Budiarto explained the dispute resolution over the results of legislative elections of the House of Representatives (DPR) and the Regional Legislative Council (DPRD). According to Edy, only contesting political parties can file a petition, and the object of the petition was the declared national votes. Meanwhile, legislative candidates may request approval after gaining approval from the Central Executive Board of the party. "Respondent in the election result dispute is the KPU RI, while the relevant party in the election result dispute, similar to the KPU, maintains the results of the vote count," he explained before the 160 participants.
In election results dispute cases, Edy reminded that the petitioners must pay attention to the completeness of the petition documents and other requirements in submitting a petition, one of which is the deadline. According to him, if there are conditions that are not met by the petitioners, the petition may be rejected by the Constitutional Court. The dispute between legislative candidates from the same party, according to Edy, is indeed difficult and always an obstacle for legislative candidates because the Constitutional Court cannot interfere with the internal workings of a party.
History of the Constitutional Court
Court senior researcher Pan Mohamad Faiz delivered a presentation on “Constitutional Court in the State Administration.” He explained that the idea of the formation of an institution that would review laws against the Constitution was already around since 1945, in the meeting of the Investigating Committee for Preparatory Works for Independence (BPUPKI). The idea was proposed by Mohamad Yamin, but was rejected by Soepomo because Indonesia at the time lacked legal scholars and did not submit to separation of power.
Faiz believed that laws were formed by the democratically-elected legislative, but could be revoked by the court. He said, many questioned how a product by House members and the president, who were elected democratically, could be revoked by the court. He explained that aside from ascribing to democracy, Indonesia also ascribes to nomocracy, or a rule of law that balances the rights of the majority and the minority. He said, the Constitutional Court had used to be limited to judicial review of laws after the reform era, but it had been declared by the Court to be against the Constitution.
Another authority of the Constitutional Court is deciding on election disputes. The upcoming elections, Faiz said, were organized according to the Constitutional Court Decision in 2014 that the elections be simultaneous. The Constitutional Court used to merely examine the vote recapitulation results, leading many to accuse the institution as being a calculator. However, an East Java regional election became a focal jurisprudence point where the Court affirmed its authority in examining the election process. He added, another regional election issue today was the administrative issue. “This occurred in the Central Maluku regional election, where a group of region A residents were recorded as residents of region B, a proliferated region,” he said on Thursday (7/2/2019).
Aside from those authorities, the Constitutional Court also has an obligation to decide on the House opinion if the president and/or vice president have violated the law and the Constitution. Faiz explained that previously the president had been impeached based on a political reason, without due process. Currently, the impeachment of the president/vice president must receive approval of 2/3 of the House members before being forwarded to the Constitutional Court. If the Court approves, the bill is brought before the People’s Consultative Assembly for to discuss and decide on. “The authority is different from that of the Constitutional Court of the Republic of Korea where the president is immediately declared [removed] after the decision of the Constitutional Court,” he said.
The Constitutional Court is the supreme interpreter of the Constitution, Faiz said. Anyone can interpret the Constitution, but once the Constitutional Court has passed its decision, it legally binds all citizens. Although a certain law is petitioned for review by only one person, the Court’s decision on the case also applies to all Indonesian citizens.
Lastly, Faiz said that the Indonesian Constitution is the only one in the world that offers customary law communities to file a judicial review petition. He reminded that the Court decisions must be observed as a whole and carefully, because the media often reports the Court decisions inaccurately. For example, the Court decision on adultery was made out to be a legalization of LGBT. In fact, he elaborated, the ruling did not touch on LGBT. “Similarly, another ruling that was misinterpreted is that a person with mental disorder can vote. It does not mean that everyone with [a mental disorder] can vote, but only those with a mild level of disorder can,” he said.
Aside from learning theories, the participants also practiced drafting a petition and the response by relevant party in the election dispute as well as filing in an online petition. (Ilham/LA/Yuniar Widiastuti)
Monday, February 11, 2019 | 10:03 WIB 236