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Constitutional Justice Arief Hidayat speaking at an online seminar organized by the Constitutional Court and the Sharia Faculty of IAIN Kudus, Friday (14/8) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Arief Hidayat spoke at an online seminar on "The Role of the Constitutional Court in Guarding People’s Sovereignty through Regional Election Dispute Resolution" on Friday afternoon, August 14, 2020. The event was organized by the Constitutional Court (MK) and the Sharia Faculty of IAIN (State Islamic Institute) Kudus.

Justice Arief began his presentation by explaining the three underlying constitutional principles of the administration of the Republic of Indonesia: theocracy, democracy (sovereignty is vested in the people), and nomocracy. Democracy must be built upon law, otherwise will cause chaos and anarchy. "The highest law is the Constitution. The Indonesian state is a combination of these three principles, so it is called a godly constitutional democracy or a democratic rule of law under One Almighty God," he added.

He said that countries generally only adhere to democracy and nomocracy, while state affairs are secular. Indonesia also adheres to theocracy. However, Indonesia’s theocracy is different from that of religious states. Indonesia adheres to the universality of divine values, not based on one particular religion. All Indonesians embrace any of the religions and beliefs that exist in Indonesia.

"The purpose of the Republic of Indonesia is material and immaterial welfare. Complete well-being, both physical and mental," he said.

In lawmaking, Justice Arief said, there’s always the phrase “By the grace of God Almighty,” which is used officially in government regulations and the decisions of state officials. "Likewise, in enforcing the law, such as in the Constitutional Court, the direction is justice based on the One Almighty God. That is what our country calls the system of the One Almighty God. [The law] is not only accountable to the people, homeland, and state, but every movement of its implementation, all our behavior, is also accountable to Allah SWT," he said.

Electoral Illegalities

Justice Arief also talked about Article 18 paragraph (4) of the 1945 Constitution, on which regional head election (pilkada) is based. It reads, “A Governor, Bupati (head of regency), and Mayor (head of city), each heading respectively the administration of a province, a kabupaten (regency), and a kota (city) shall be elected democratically.”

“There has been two implementations. First, [through] democratic election but the elector is the DPRD, and illegal issues arose. Second, [through] direct democratic election by the people. However, there are still many issues, [such as] money politics, the KPU and Bawaslu not being neutral, and other illegalities,” he said.

He said that the law consists of three components: legal structure, legal substance, and legal culture. For example, pilkada regulations has proper structure, so it doesn’t matter if regional heads are elected by the DPRD or the people. The substance has also been revised to cover electoral fraud, with the support of the Constitutional Court. It turned out that extraordinary problems still occurred. Ballot boxes were missing, dismantled. Witnesses were bribed and so on. All of this was revealed in the trial at the Constitutional Court.

"Why did all these problems happen? What must be improved is the legal culture. In order to seize power, democracy should be based on divine values. Fraud means violation of divine values, apart from violation of legal, ethical, and moral principles. We don\\\'t realize the purpose of an office. Finally, it leads to corrupt officials, who seek as much money as possible illegally for themselves, their family, their group. In pilkada, we must be ready to lose and be ready to win with honesty. In general, those who take part in pilkada are not ready to lose, but want to always win, so they cheat," said Justice Arief before IAIN Kudus officials, academics, and the general public.

He then discussed the additional authority of the Constitutional Court to handle pilkada disputes. Initially, the pilkada was regulated in the Regional Government Law, not in the Election Law. Governor election disputes used to be handled by the Supreme Court, while regent and mayor election disputes by the high court. However, many problems occurred.

"In 2008, by the Supreme Court, the settlement of pilkada disputes was transferred to the Constitutional Court because [it] is far from the center of the dispute. Since November 1, 2008, the handling of pilkada disputes has been carried out by the Constitutional Court," he explained.

In 2014, the Constitutional Court issued Decision No. 97/PUU-XI/2013 regarding pilkada resolution in that the Constitutional Court’s authority to try pilkada was unconstitutional, because pilkada was not within general elections. Pilkada dispute is a regional government issue. Meanwhile, the Constitutional Court’s authority is to adjudicate disputes over the results of the legislative and presidential elections. Thus, the Constitutional Court decision states that a special court must be formed to handle pilkada disputes.

"In 2015, the Constitutional Court was willing to handle pilkada disputes, but a special judicial body has not been formed. Fortunately, in 2013 the Constitutional Court issued a decision containing a transitional rule, that as long as a special judicial body has not been formed, the handling of pilkada disputes is still within the authority of the Constitutional Court," he said. 

Writer: Nano Tresna Arfana
Editor: Nur R.
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 8/18/2020 16:41 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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