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Constitutional Justices Suhartoyo and Manahan M. P. Sitompul speaking at the technical assistance program on the 2020 election of governors, regents, and mayors for the provincial and regency/city Elections Supervisory Agency (Bawaslu) virtually, Wednesday (14/10) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—On the third day of the technical assistance program on the 2020 election of governors, regents, and mayors for the provincial and regency/city Elections Supervisory Agency (Bawaslu) that Constitutional Court (MK) held virtually on Wednesday, October 14, 2020 at the Pancasila and Constitution Education Center in Cisarua, Bogor, West Java, Constitutional Justices Suhartoyo and Manahan M. P. Sitompul talked about “The Procedure Law on the Disputes over the 2020 Elections of Governors, Regents, and Mayors.”

Justice Suhartoyo said that the Constitutional Court Regulation (PMK) No. 5 of 2020 stipulates that one day after pilkada (regional head elections) dispute petitions are listed in the constitutional case registration book (BRPK), the Elections Supervisory Agency (Bawaslu) will receive a copy of the petitions. “You will receive copies of the petition according to Bawaslu’s needs. In the past, Bawaslu used to need to submit a response before the hearing. [Now] at the hearing Bawaslu responds to the petitioner’s petition, of which copy have been given the day after the petition is registered. This is simpler and you will be able to prepare a more comprehensive response,” he said to the 400 Bawaslu members participating in the program.

Bawaslu used to submit a response only two days before the hearing, but at the 2020 pilkada dispute hearings, the Court will hear Bawaslu’s, the relevant party’s, and the respondent’s responses. The petition whose copy will be sent to Bawaslu a day after being registered will not be the final version, as there might be revisions.

Justice Suhartoyo stressed, “Bawaslu only needs to convey the points of their statement, without having to discuss the Court’s authorities, [the petitioner’s] legal standing, the requirements to file a petition, the posita, and the petitum, and responds the details of the petition one by one. Bawaslu ought to confirm what is right and wrong as a “referee”—an impartial, independent party. [Bawaslu] cannot say whether the petitioner or the respondent is right.” As a neutral party, he added, Bawaslu’s statement would be taken into consideration by the Court to make its ruling.

Pilkada Oversight Coordinator

Justice Manahan talked about Law No. 6 of 2020 on the delay of the pilkada due to COVID-19 pandemic from September to December 2020. The General Elections Commission (KPU) decided that the pilkada be held simultaneously on December 9. The pilkada dispute resolution will refer to the latest PMK No. 5 of 2020.

He said that the election observers’ accreditation used to be under the KPU’s purview but is now the authority of the provincial or regency/city Bawaslu. As the pilkada oversight coordinator and an agency whose statement is needed at the Court hearings, Bawaslu must gather data of its oversight activities. Its duties are stipulated in Article 22B of Law No. 10 of 2016, which refers to it as Panwas. The duties of the provincial Bawaslu are stipulated in Article 28 of Law No. 1 of 2015, while those of the regency/city Bawaslu are stipulated in Articles 30 and 33 of Law No. 10 of 2016.

“The petitioner is the regional head candidate ticket, or election observers when there is a sole candidate. The respondent is the KPU. The relevant party is the candidate ticket that was declared by the KPU to have obtained the most votes in the pilkada,” he added.

The Start of Judicial Review

Secretary-General M. Guntur Hamzah talked about “The Constitutional Court in the Indonesian Administration System.” He said that the notion of a constitutional court was first proposed in Austria, but the first constitutional court in practice was in the United States. However, the start of the judicial review was in England in 1701, when kings could do no wrong. Then when John Locke proposed the concept of separation of state powers, came the notion that the parliament could do no wrong. Expert Suzanna Sherry said at that time, the concept of judicial review, where justices review or even revoke laws, was unknown. Then Judge Sir Edward Coke proposed the idea that when the laws made by the parliament were against public rights, common sense, and the legal system in England, they could be scrutinized. All actions by the parliament must be scrutinized and their laws should’ve been able to be reviewed, but in practice no law in England had been revoked.

Guntur said, the history of judicial review in Indonesia began with M. Yamin’s proposal that the Supreme Court be given an authority to review laws. The idea was rejected by Soepomo because the Constitution did not follow trias politica and because there were not many qualified law graduates at that time. In the 1970s, the Association of Law Graduates proposed that the Supreme Court be given an authority to review laws. During the amendments to the 1945 Constitution in 1999-2002, the idea to establish a constitutional court was proposed. The Constitutional Court of the Republic of Indonesia was established in August 13, 2003.

The Constitutional Court of Indonesia has four authorities and one obligation. It serves to examine laws against the 1945 Constitution, decide on authority disputes between state institutions, and decide on the dissolution of political parties, and decide on disputes over general election results. It is obligated to decide on the House’s opinion of alleged violation committed by the president and/or vice president. It also has an additional authority to rule on pilkada disputes pursuant to Article 157 paragraph (3) of Law No. 10 of 2016, which reads, “Cases of dispute over the final vote acquisition results of the election of Governors, Regents, and Mayors are examined and tried by the Constitutional Court until the establishment of a special judicial body.”

Guntur added that the Constitutional Court also serves as the guardian of the Constitution, the guardian of democracy, the guardian of the state ideology, the protector of human rights, the protector of citizens’ constitutional rights, and the final interpreter of the Constitution.

Mechanism of Regional Election Petition

Next, Deputy Registrar I Triyono Edy Budhiarto talked about “The Mechanism, Stages, Activities, and Schedule of Dispute Resolution of the 2020 Elections of Governors, Regents, and Mayors.” The stages start with the petitioner filing the petition then completing and revising it. The petition’s completeness is then checked and the result announced.

The petition is then listed in the e-BRPK (electronic constitutional case registration book) and its copies are sent to the respondent and Bawaslu. The relevant party then apply for the case and the hearing schedule be announced to the parties. The court proceedings start with a preliminary examination hearing, evidentiary hearings, and a justice deliberation meeting. The final stage is a ruling hearing, in which the copies of the decision be given to the litigating parties.

Triyono added that a petition can be filed after the KPU’s announcement on the vote tabulation results on December 16-26 (province) and December 12-23 (regency and city). The petition can be filed starting from December 16, 2020 to January 5, 2021 at 00:00 WIB (province) and December 13, 2020 to January 5, 2021 at 00:00 WIB (regency and city).

Techniques of Drafting Bawaslu’s Response

Day two of the program was concluded with the presentation on “The Techniques of Drafting Bawaslu’s Statement in the 2020 Elections of Governors, Regents, and Mayors” by Substitute Registrar Rizki Amalia. She said Bawaslu’s statement includes the name and address of Bawaslu as well as a clear elaboration of its response to the petition.

It also has to include the petitioner’s profile and Bawaslu’s statement regarding the subject matter of the petition, which covers the implementation of monitoring of all election stages as well as supporting evidence. It also includes follow-up measures to any findings and/or reports and resolution to disputes, as well as supporting evidence.

“Bawaslu’s statement must be straightforward and clear and can describe the whole process. You can explain the overall supervision. More importantly, Bawaslu’s statement should shed light on the existing problems because it is Bawaslu's job to supervise the pilkada. I think each level has its own way to make a report, and the measures if there are findings and so on have been regulated in the Bawaslu Regulation," she said.

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

Translation uploaded on 11/03/2020 23:05 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.

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