Deputy Chief Justice Aswanto speaking at the election school program organized by the South Sulawesi Masika ICMI and the South Sulawesi Bawaslu and KPU on Saturday afternoon (10/10/2020) vritually. Photo by Humas MK/Hamdi Vigo.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court’s (MK) Deputy Chief Justice Aswanto spoke at the election school programorganized by the Kalam Synergy Council of the Association of Indonesian Muslim Intellectuals (Masika ICMI) in collaboration with the South SulawesiGeneral Elections Commission (KPU) and Elections Supervisory Agency (Bawaslu) on Saturday afternoon, October 10, 2020 virtually. He delivered a presentation on “The Ethics and General Elections Dispute Court” but focused on the election dispute as the court of ethics is the authority of the Election Organizer Ethics Council (DKPP).
Justice Aswanto said that based on the 1945 Constitution, the general elections are the legislative and presidential elections. The Constitutional Court Decision No. 97/PUU-XI/2013 states that the regional elections (pilkada) are not part of the general elections. This didn’t dispel public misunderstanding that pilkada is part of the general elections. “The constitutional basis [of the two] are different, Articles 18 and 22E of the 1945 Constitution,” he said.
Justice Aswanto added that the Law No. 10 of 2016 that amended Law No. 8 of 2015, which amended Law No. 1 of 2015 on the stipulation of the Government Regulation in Lieu of Law (Perppu) No. 1 of 2014 into law. “When the perppu was proposed to the DPR (House of Representatives), a special judicial body was given the authority to resolve pilkada disputes, based on the Constitutional Court’s decision on [a case on] the PilkadaLaw that pilkada is not part of the general elections, therefore isn’t the Court’s authority. As we know, based on the Constitution, the Court has four authorities and one obligation, including [ruling on] general elections dispute pursuant to Article 22E of the 1945 Constitution,” he explained.
At first, pilkada dispute resolution was carried out by the Supreme Court, then was relegated the regency/city pilkada disputes to the high courts while it kept with the provincial disputes. However, after long discussions, pilkada dispute resolution was transferred to the Constitutional Court, which then passed a ruling that it wasn’t authorized to do so.
“But why the [Constitutional] Court still handles it? It’s because of a clause in the decision, that the one authorized [to do so] is a special judicial body, but until this body hasn’t been formed, [it is] still the Constitutional Court’s authority,” Justice Aswanto explained.
Pilkada Litigants
Justice Aswanto further explained that the litigants in a pilkada dispute case are election contestants who object to the KPU decision (the petitioner), the KPU as election organizers (the respondent), testifiers, and the relevant party who have direct interest in the case.
“The relevant party is usually the ones declared as election victors by the KPU, but the losing contestants can also act as such. In the Constitutional Court Regulation (PMK) No. 5 of 2020 on the Procedural Law of the election of governors, regents, and mayors, there are some changes. Those who want to be the relevant party must apply to the Constitutional Court first. Upon assessment, if the Court doesn’t approve it, they cannot be a relevant party. This is different from how it used to be, in that when a petition is lodged to the Constitutional Court, the one declared as election victor by the KPU automatically became the relevant party,” he explained. He also explained that in this latest regulation, Bawaslu is a testifier.
He added that Article 158 of Law No. 10 of 2016 stresses that the parties who can file a pilkada dispute petition are those who acquired votes that don’t exceed that which is stipulated in Article 158. The change in PMK No. 5 of 2020 regulates this new threshold. "What is stipulated in Article 158 of Law No. 10 of 2016 is the results, because the essence of the Constitutional Court’s authority is a dispute of [election] results. Therefore, the Court emphasized that it would continue to examine such petitions, even if the petitions don’t meet the vote margin threshold stipulated in Article 158. The Court is not a calculator court. The Court wants to provide substantive justice. Therefore, we will examine everything related to vote acquisition," he stressed.
This shift in the new PMK, he stressed, doesn’t mean that the Court doesn’t comply with Article 158 of Law No. 10 of 2016. “The Constitutional Court complies [with it]. When we took oath as constitutional justices before the president, we declare that we would implement the 1945 Constitution and statutory laws. Article 158 of Law No. 10 of 2016 stipulates a threshold of vote margin; we abide by it. In PMK No. 5 of 2020, we made a change that Article 158 doesn’t focus on the beginning of the case but the end. So, if anyone file a petition with a vote margin exceeding the threshold, we will decide at the end and the ruling will declare that the petition doesn’t meet the formal requirements,” he said.
He then explained that pilkada dispute petitions can be registered online or in person. The PMK also details the standard format of the petition. According to the law, the petition should be filed at the latest 3x24 hours since the KPU decided on the election victor. “Just file the petition, albeit not complete, as long as it already details the object of dispute, which is the KPU stipulation of the election victor, who files the petition, the petitioner’s profile, the region whose votes is being challenged, et cetera,” he explained. He explained that prior to the latest PMK, petitioners can revise the petition multiple times in the first 72 hours, but now they can only file the initial petition. Any revision and addition can be filed in the second 72 hours.
“The law stipulates that the pilkada disputes be resolved up to 45 days after the case is registered by the Court,” he added.
Justice Aswanto then explained the pilkada case resolution process. First, the constitutional justices hold a panel preliminary examination hearing to hear and examine the petition. Next, they will hear the KPU’s (respondent) response and the testimony of the relevant party. It is followed by an evidentiary hearing in which experts and witnesses testify. The PMK stipulates that the Court can limit the number of witnesses.
“After the justice panel completes the hearings, the nine constitutional justices meet in a panel to discuss the cases. The panel’s judgment on the case is then reported to the justice deliberation meeting, which needs at least seven justices to meet the quorum, which decides on the case and then delegate the panel to prepare the draft of the ruling. We really guard this. In the Constitutional Court, the ruling is deliberated in a week. The room for the justice deliberation meeting must be kept restricted. Only the justices and the registrars can go in. Nobody else are allowed. It would be dangerous if anyone leaked the ruling before it is pronounced,” he stressed.
Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 10/30/2020 21:57 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.
Sunday, October 11, 2020 | 10:24 WIB 224