Constitutional Justice Daniel Yusmic P. Foekh speaking at the technical assistance program on the 2020 election of governors, regents, and mayors for the General Elections Commission, Wednesday (7/10) fro. Photo by Humas MK/Hermanto.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) has an additional authority to hear and decide on regional head election (pilkada) disputes, whose provisions were set in the Constitutional Court Regulation (PMK) No. 5 of 2020 on the procedure on the dispute cases over the election of governors, regents, and mayors. The object that the Court will examine is the decision of the General Elections Commission (KPU) as the Respondent on the stipulation of disputed votes in the regional head election, which can affect the results of the election.
This was conveyed by Constitutional Justice Daniel Yusmic P. Foekh at the technical assistance program on the 2020 election of governors, regents, and mayors for the General Elections Commission (KPU) on Wednesday, October 7, 2020. The program was organized by the Constitutional Court's Pancasila and Constitution Education Center virtually on with participants from the 32 provinces that participate in the elections.
Delivering his presentation on “The Procedure on the Disputes over the 2020 Elections of Governors, Regents, and Mayors,” Justice Foekh mostly talked about the articles in PMK No. 4 and No. 5 of 2020, which was prepared to anticipate the 2020 local elections. In previous regulations, the Relevant Parties were the candidate tickets that obtained the most votes, but in this year’s elections registered election observers that have been accredited by Bawaslu (Elections Supervisory Agency) can be Relevant Parties on the conditions that they have vested interest in the petition.
“In the previous [regulations], the Respondent is to submit their response before the hearing, but in the 2020 regional elections dispute, [the response] can be submitted at the preliminary hearing or at the second hearing,” he explained alongside moderator Deputy Registrar I Triyono Edi Budhianto.
In the Q&A session, the participants were encouraged to ask questions and give recommendations on the upcoming election dispute resolution. A participant from the KPU of Gunung Sitoli, North Sumatra, asked about the copies of evidence to be submitted, to which Justice Foekh answered that the evidence will be observed by the litigating parties at the hearing before the constitutional justices. Due to the pandemic, it will be made so that the evidence be approved under an agreement. “The evidence will be presented either online or offline, and we will make an agreement,” he said.
Constitutional Court’s Development
In the second session, senior researcher Pan M. Faiz talked about "The Constitutional Court in the Indonesian Administration System." He began his presentation by introducing the models of constitutional court in the world: the constitutional court with judicial review, the constitutional council with judicial preview, and the constitutional court/council with a hybrid review.
He explained that the judicial review system requires that a law can be challenged only after it is passed into law. This system’s strength is that any discrepancy of the norms can be observed as the law has been implemented in society.
“As the organizer of the general elections and the regional head elections, the KPU must observe the Constitutional Court’s development, especially regarding the judicial review of laws that are related to elections—which ones have been challenged in the Constitutional Court and be revoked,” Faiz said virtually alongside the Head of the Programs and Implementation of the Constitutional Court’s Pancasila and Constitution Education Center Nanang Subekti.
The judicial preview of the constitutional council means bills can also be challenged. This model is cost-cutting but violations can only be seen after the law is implemented, while laws cannot be challenged through judicial review. There are also countries that merge these two systems into a hybrid review.
Procedural Law for Online Hearing
In the third session, Deputy Registrar II Wiryanto talked about "The Mechanism, Stages, Activities, and Schedule of Dispute Resolution of the 2020 Elections of Governors, Regents, and Mayors." He asked the event’s participants to understand the procedural law of the Constitutional Court, especially during the pandemic, as the Court has made some arrangements to carry out hearings under strict adherence to health protocols set by the Government to prevent the spread of COVID-19.
He said that the Court pushed for more online activities, such as lodging a petition to the court along with all the pieces of evidence. A lot of the court hearings have been done partly online as the number of litigants coming to the Court is restricted to follow existing health protocols.
He also explained that the key points of PMK No. 4 and 5 of 2020 will be seen clearly during the regional election dispute resolution after the KPU (Respondent) announce the 2020 pilkada results. There are 14 stages to this year’s pilkada, starting from petition reception to ruling. The litigants can come to the Court in person since 08:00 WIB and the registration will be put in the system until 00:00 WIB. He encouraged petitioners to lodge the petition online as the system is available 24 hours a day.
A KPU member from Gunung Sitoli, North Sumatra, asked about election observers, who hadn’t applied (until the second day of the program). If nobody applies until election day, who can be the Relevant Party in the case? Can the Bawaslu or an empty column volunteer be one? Wiryanto answered that volunteers don’t have legal standing in pilkada dispute cases. No registered election observers would mean the lack of commitment from the public to guard the elections.
Responding with Explanation
In the last sessions of the second day of the program, Substitute Registrar I Syaiful Anwar talked about “"Techniques of Drafting the Respondent’s Response.” He believes, ideally the KPU as the Respondent respond to each argument of the Petitioner.
“Those who have often litigated at the Constitutional Court must be familiar with drafting rebuttals. There’s no need to be verbose. The Respondent only needs to answer the Petitioner’s argument with a firm explanation, such as regarding vote count that the Respondent has done appropriately. That is the key thing that the Respondent needs to understand,” he explained.
The technical assistance program is meant to improve the stakeholders’ understanding of the procedural regarding pilkada. The program will last three days (October 6-8, 2020) with an adherence to strict health protocols. The materials to be covered include the techniques to draft responses, practice on drafting the respondent’s response, and the electronic information system. The materials will be delivered by qualified sources, such as the constitutional justices, registrar, junior registrars, researchers, and staff members of the Constitutional Court.
Writer: Sri Pujianti
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 10/22/2020 13:59 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, October 08, 2020 | 12:06 WIB 226