Constitutional Justices Saldi Isra and Enny Nurbaningsih speaking at a technical assistance program on the 2020 election of governors, regents, and mayors, Thursday (10/12/2020) from the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—On the second day of a technical assistance program (bimtek) on the 2020 election of governors, regents, and mayors (pilkada) for the Congress of Indonesian Advocates (KAI), the Indonesian Christian Legal Profession Association (PPKHI), and the Association of Trisakti University’s Law Faculty Alumni on Thursday, December 10, 2020, Constitutional Justices Saldi Isra and Enny Nurbaningsih delivered a presentation on “The Procedure of the Dispute Resolution of the Results of the 2020 Election of Governors, Regents, and Mayors.”
In her presentation, Justice Enny stressed the importance of the petitioners and their legal counsels carefully reading all laws and regulations regarding the procedure of the pilkada results dispute. “I’d like to underline that any trivial documents related to the voting process have to be archived well. Do not let documents of the legal counsel be incomplete or inaccurate when entering the proceedings, especially at evidentiary [hearings],” she added.
She also said that the relevant party is a losing candidate pair/ticket or a certified election observer. The respondent, she said, is the General Elections Commission (KPU) or the Aceh Elections Independent Commission (KIP). Bawaslu is the testifier, while the relevant party is the winning ticket or a certified election observer.
What should be noted, Justice Enny added, is because the source of contention is the KPU/KIP’s decision of the voting results, not to question the tabulation report. The most important thing, she said, is that the petition is to be filed to the Court only once. She also reminded the participants of the authenticity of the signatures of the legal counsels and warned against forged signatures.
The petition can be filed in person (offline) or online. Petition can be filed no later than three work days after the KPU/KIP certifies the election results.
Also read: Chief Justice: Pilkada an Implementation of Democracy and Nomocracy
Meanwhile, Constitutional Justice Saldi Isra commented on the quick count in several regions on December 9, 2020 released by several media. “I observed that [the gubernatorial in several regions] was very close. In West Sumatera, the margin was 2-3 percent. In South Kalimantan, even closer, the margin was zero point something percent. Also in Central Kalimantan,” he said.
Justice Saldi hoped no pilkada dispute petition is lodged, to avoid crowding that could lead to new COVID-19 clusters. However, this is unlikely. The Court, he said, had made changes for the 2020 pilkada dispute settlement, having learning from past pilkada. For example, in order to avoid crowding due to filing of petition multiple times, he said, “Now the filing of pilkada dispute petition is only once. The Court has tried to simplify the petition registration process.”
The petitioner is also allowed to revise the petition only once. After it is registered, no revision is to be made. Any revision should only be limited to typos and other language errors. No revision on substance can be made.
Then, Justice Saldi talked about Article 158 of the Pilkada Law, whose implementation in this year’s pilkada differs from that in previous periods. “In relation to Article 158, we will assess the petitioner’s petition along with the evidence, the respondent’s response and their evidence, the relevant party’s statement, and Bawaslu’s statement. If we have doubts related to Article 158, we will progress to the evidentiary [hearings],” he stressed.
History of Judicial Review
In the second session, senior researcher Pan Mohamad Faiz talked about "The Constitutional Court in the Indonesian Administration System." He started his presentation by explaining the history of judicial review in Marbury v. Madison in the United States Supreme Court in 1803. It was the first time the United States Supreme Court overturned a law made by Congress, despite not having such authority.
“This was the history of the Constitutional Court, which was then was established in Austria in 1920. Based on the idea proposed by jurist Hans Kelsen, Austria established the Constitutional Court, a body separate from the Supreme Court, with special authorities related to the Constitution, politics, and central and regional interagency disputes,” he explained.
Meanwhile, the history of the Constitutional Court in Indonesia started in the independence era with Mohammad Yamin’s proposal that the Supreme Court be given an authority to review laws against the Constitution. 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. The Constitutional Court of the Republic of Indonesia was established in August 13, 2003 as a result of the amendment to the 1945 Constitution and the Reform era.
Although it was established not too long ago, the Constitutional Court’s participation has been acknowledged globally. It was elected a permanent secretariat of the Asian constitutional court association and is the only constitutional court in the Asia-Pacific to sit in the Venice Commission. Indonesia is also one of the leading countries in the development of constitutionalism.
Faiz then explained two judicial review models. First, the American or decentralized model where the authority to examine the constitutionality of laws rests with the Supreme Court and the courts under it. Second, the European or centralized model, where a constitutional court, exercise such an authority. Indonesia, South Korea, Turkey, Thailand, and South Africa implements the centralized model.
He added that there are three constitutional court models. First, it can only review laws that have been promulgated, which applies in Indonesia and Germany. Second, it can only review bills, not laws. This applies in France. The third is a combination of the two previous models.
Constitutional Court Regulation No. 8 of 2020
In the next session, Deputy Registrar Wiryanto talked about "The Mechanism, Stages, Activities, and Schedule of the 2020 Regional Election Results Dispute Resolution." He explained the Constitutional Court Regulation (PMK) No. 8 of 2020 on the stages and schedule of the regional election results dispute resolution amended PMK No. 7 of 2020. “The revision was because we only found out recently of the government’s changes to the collective leave day schedule. December 28, 29, 30 previously set as holidays are no longer holidays. Therefore, this will affect the stages of activities in the Constitutional Court,” he said.
PMK No. 8 of 2020 also details 14 stages in the 2020 pilkada dispute settlement. The first to fifth stages are: filing of petition, completion and revision of petition, check over the completeness and revision of petition, announcement of check results, revision of petition.
“After that is the registration on the petition in the e-BRPK [electronic constitutional case registration book], the distribution of petition copies to the respondent and Bawaslu, the application by the relevant party, the announcement of hearing schedule. The next stages are a preliminary hearing, evidentiary hearings, and a justice deliberation meeting (RPH), until the ruling hearing and the distribution of copies of the decision/decree,” Wiryanto explained.
He also explained that the sole object of the pilkada petition is the vote count results announced by the central/provincial KPU or the KIP as the respondent, which can significantly affect who the winning candidates are. The litigants in a pilkada dispute case are election contestants who object to the KPU decision or election observers certified by the KPU (the petitioner), the KPU (the respondent), Bawaslu (the testifier), and the candidate who wins the most votes (the relevant party).
The last session was “The Techniques of Drafting the Petitioner’s Petition and the Statement of the Relevant Party in the Dispute of the 2020 Elections of Governors, Regents, and Mayors” by Substitute Registrar Syukri Asy’ari. “The petitioner is a candidate pair of governor/vice governor, regent/vice regent, and mayor/deputy mayor. In the case of a single candidate, the rival is an “empty column,” represented by an election observer certified by the KPU,” he said. The respondent, he added, is the provincial/regency/city KPU. The relevant party is a candidate rivaling the petitioner. In the case where the “empty column” wins, the relevant party is an election observer. Bawaslu is a testifier.
The petition includes the petitioner’s profile, the Constitutional Court’s authority, and the object of the dispute—the respondent’s decision on the vote count results that may affect the winning candidate. It also must explain the petitioner’s legal standing, the deadline of the petition per Article 157 of Law No. 10 of 2016 in conjunction with Article 7 paragraph (2) of PMK No. 5 of 2020 (no later than three days after the results of the election are announced by the respondent), the background to the petition and the petitum.
Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 12/14/2020 20:37 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.
Friday, December 11, 2020 | 15:59 WIB 268