Deputy Chief Justice Aswanto and Constitutional Justice Wahiduddin Adams speaking at the technical assistance program on the 2020 election of governors, regents, and mayors for election tickets, Tuesday (1/12/2020) from the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—On the second day of the technical assistance program on the 2020 election of governors, regents, and mayors (pilkada) for the election candidate pairs (tickets), Deputy Chief Justice Aswanto and Constitutional Justice Wahiduddin Adams talked about the 2020 pilkada procedure.
Justice Aswanto said pilkada tickets can be the petitioner or relevant party in a pilkada dispute cases. He revealed that the relevant party often submits a statement that is very similar to that of the respondent. He hoped this wouldn’t be the case, as the Constitutional Court not only strives to deliver procedural justice, but also substantive justice.
He then stressed that, contrary to the misperception that exists in the public that the Court rejects Article 158 of the Pilkada Law, “In performing its duties and functions, the Court will be consistent with what the law stipulates regarding disputes over the results of [general elections], [legislative elections], and [regional head elections]. Our guideline in judicial review of laws is the Constitution.”
The ongoing debate on Article 158 of the Pilkada Law, he said, is caused by a slight change in the norm. In previous pilkada, the petitioners that met the requirements in Article 158 would be forwarded to the preliminary hearing, examination hearings, to the ruling hearing. However, in 2020, the Court decided that the object of pilkada disputes is the vote acquisition. Therefore, the Court will not implement Article 158 on the cases at the beginning, but at the end, as stipulated in the Constitutional Court Regulation (PMK) No. 6 of 2020. This means that while the article stands, the Court will find information and evidence whether the numbers called by the KPU (General Elections Commission) are accurate.
Procedural Law of Pilkada Disputes
Meanwhile, Justice Wahiduddin said the pilkada results dispute has legal bases in Law No. 24 of 2003 on the Constitutional Court, Law No. 48 of 2009 on Judicial Powers; and Law No. 6 of 2020 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2020 on the Third Amendment to Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law; Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors into Law; and the Constitutional Court Regulation (PMK) No. 6 of 2020 on the Procedure for the Regional Head Election Dispute Cases. PMK No. 6 of 2020 improved on PMK No. 5 of 2020 with regards to the KPU’s authority to accredit election observers—previously held by Bawaslu—pursuant to Article 124 of Law No. 10 of 2016.
He then explained that pilkada contestants are candidates of governors, regents, and mayors and their deputies. “In a dispute, the object is the decision as of the respondent as the election organizer, i.e. the central and provincial KPU as well as KIP (Aceh Elections Independent Commission). This decision is the declaration of the voting results in the election of governors, regents, and mayors, which can significantly influence the declaration of the winning candidate,” he said.
Justice Wahiduddin also explained the litigating parties in pilkada disputes. The petitioner is either the regional head candidate pairs/tickets that object to the voting results called by the KPU or election observers certified by the KPU. The respondent is the KPU. Bawaslu (Elections Supervisory Agency) is the testifier. The relevant party is the candidate pairs that obtain the most votes in the election.
Stages of Pilkada Dispute Resolution
In the second session, Chief Registrar Muhidin talked about “The Mechanism, Stages, and Schedule of the Resolution of Disputes over the Results of the 2020 Election of Governors, Regents, and Mayors.” He first quoted Henry B. Mayo on “democratic values,” which he said involves resolving disputes peacefully, guaranteeing peaceful change in a constantly changing society, changing the authority regularly, exercising minimal coercion, recognizing and respecting diversity, and upholding justice.
He said the stages of the pilkada dispute resolution starts with the filing of petition, the revision of the petition, and the checking over the completeness of the petition. After the Court announces the results of the checking, the petition is registered in the e-BRPK (electronic constitutional case registration book). Copies of the petition are then sent to the respondent and Bawaslu. The application by the relevant party is accepted and the schedule for the hearing is announced to al litigants. The proceedings start with a preliminary hearing, followed by evidentiary hearings, and a justice deliberation meeting (RPH). The ruling is then pronounced and the copies of the decision is distributed.
The KPU announced the election results at the provincial level on December 16-26 and at the regency/city level on December 13-23. Then the petition can be filed starting December 16 at the provincial level and December 13 at the regency/city level, up to January 5 at midnight.
The hearings are open for public and the schedule can be seen on the Court’s website. The litigating parties may attend the hearings in person in the Constitutional Court or remotely. A request for remote hearing must be submitted no later than two days before the scheduled hearing.
Limited Authorities Mandated by Constitution
Head of the Public Relations and Domestic Cooperation Department Fajar Laksono delivered a presentation on “The Constitutional Court in the Indonesian Constitutional System.” He said that the Constitution-mandated authorities of the Court are limited. Its main authority is to review laws against the 1945 Constitution. Since its formation in 2003, the Court has reviewed over 3,000 cases.
The Court also decides on authority disputes between state institutions whose authorities are granted by the 1945 Constitution. Another authority is to decide on the dissolution of political parties, which the Court has never performed since its inception 17 years ago. This “The Court was granted [this authority] so that political parties cannot be dissolved without any evidence in court or through a legal procedure,” he said.
Fajar added that the Court was granted the authority to decide on disputes over general election results since 2004. It is also obligated to decide on the House’s opinion of alleged violation committed by the president and/or vice president, which it hasn’t performed. He revealed that the Constitution doesn’t grant the Court the authority to decide on disputes over pilkada results.
Fajar explained that a Constitutional Court decision in 2007 stressed that pilkada is part of the general elections, however, in decision No. 97 of 2013 it declared that the legislature cannot add or reduce the Court’s authorities, which are limited by the Constitution. The decision also affirms that general elections in Article 24 paragraph (1) of the 1945 Constitution are those referred to in Article 22E: the election of DPR, DPD, and DPRD members as well as the presidential election. Therefore, the Court declared that it wasn’t authorized to decide on disputes over pilkada results.
However, when decision No. 97 was passed, 9 pilkada cases were still ongoing in the Court. The Court decided it would settle those pilkada cases. then, Article 157 paragraph (1) of Law No. 10 of 2016 on the amendment to Law No. 8 of 2015 stipulates that pilkada cases would be ruled by a special body, while paragraph (3) stipulates that until such a body is formed, they will be ruled by the Constitutional Court.
Next, Deputy Registrar Rizki Amalia talked about “The Techniques of Drafting Petition and Statement of Relevant Party” at the end of the session. She explained that the petition can be filed no later than three work days since the respondent called the voting results. The request by the relevant party should be filed no later than two days in the e-BRPK and/or uploaded on the Court’s website. Meanwhile, the respondent’s response, the relevant party’s and Bawaslu’s statements are conveyed to the Court at the hearings.
She then explained the format of a the pilkada dispute petition: the petitioner’s profile, the Court’s authority, the object of the case (the respondent’s decision on the voting results that could significantly influence the results of the election), and the petitioner’s legal standing.
The technical assistance program took place for three days (Monday-Wednesday, November 20-December 2, 2020). The 312 participants attended the program online. The program was organized by the Constitutional Court's Pancasila and Constitution Education Center (Bogor). The participants received materials on the Constitutional Court and its authorities and functions, as well as practiced drafting a petition.
Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 12/05/2020 21:06 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.
Wednesday, December 02, 2020 | 09:55 WIB 266