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The atmosphere of the third hearing session of the 2020 Sabu Raijua Regent Election Result Dispute case, Tuesday (6/4/2021) in the Constitutional Court Plenary Room. Photo: PR/Ifa.

JAKARTA, PUBLIC RELATIONS – The Constitutional Court (MK) held the third hearing of Sabu Raijua Regent Election Result Dispute on Tuesday (6/4/2021). The case No. 135/PHP.BUP-XIX/2021 was filed by Candidate pair No. 3 Taken irianto Radja Pono and Herman Hegi Radja Haba.

In this session, the Petitioner presented Bernard L. Tanya as an expert who expressed his opinion regarding the issue of foreign citizens' participation in the Regional Head Elections (Pilkada). According to him, the right to vote and be elected is the exclusive right of Indonesian citizens. Election is a process of political recruitment for state positions which contain issues of sovereignty and the interests of the state, so that only citizens can fill this matter. "So, the participation of foreign nationals was not legally justified," said Bernard in a trial chaired by the Chief Justice of the Constitutional Court Anwar Usman accompanied by eight other Constitutional Justices from the Plenary Court Room.

Bernard opined that this case was the most obvious violation of the election administration, including Pilkada. According to him, the Regent Election process in Sabu Raijua had violated the constitution and fair principles that bind election organizers and participants. Hence, the formally flawed which was a strong reason to disqualify the elected candidate pair can be done in a quo case.

Formal Legally Flawed

Furthermore, Bernard mentioned the problem that even though the status of foreign nationals from the Pilkada participants was only known after the election stage was completed, their participation could still be declared legally flawed, both the process and the victory had to be null and void by the law. In Bernard's view, the findings on the a quo case were new facts. With respect to the candidate pair, they both were a legal entity. Since the beginning, formal defects in nomination had occurred. Therefore, for the sake of upholding constitutional norms, election laws and regulations, as well as citizenship legislation, the investigation of this case was closely related to upholding the authority of the law.

Hereinafter, Bernard also put forward several reasons that this problem must be resolved, for the sake of establishing an integrated election, because if there was any omission of this case it will be read as the birth of a similar practice at a later date. In addition, Bernard considered this case as a strong correction to all parties that the election must be carried out with full responsibility.

"The passing of foreigners could not be separated from the negligence of the organizers and the dishonesty of the candidates for the election," said Bernard.

Unusual Solutions

To prevent a legal vacuum over the existence of this election dispute, Bernard believed that the Constitutional Court can be an institution that determines formal legal flaws in this dispute with its legal solutions. In Bernard's view, this case was unusual and only happened during the 2020 Pilkada, so the electoral regime did not anticipate this. For this reason, an unusual solution was also needed because the normal rules could not be implemented for formal defects that were discovered only after or were not limited by law.

This case was complicated because there were serious violations of statutory norms and there was also a problem of limited technical rules in the settlement of a quo case.

"So the rule was that the court, in this case the Constitutional Court, had a parallel door through its Justices to explore the legal values that develop in society," explained Bernard.

With No Rebuttal

On the same session, the Relevant Party presented witnesses, namely Karel Oktavianus Modjodjami, Lazarus Riwu Rohi, and Ferdinand Pello. In Karel's statement, he stated that during the election process, he, as the campaign team for the Relevant Party, found that from registration to the public test of the eligibility of candidate pairs, there were no objections on Orient’s citizenship status by the community.

Moreover, at the 70 days campaign stage which was carried out at 420 points in 63 sub-districts in Sabu Raijua regency, in which there were no questions or objections from the public regarding the citizenship of Orient Patriot R.K.

"In every General Election Commission (KPU) decision-making process, all parties were always attended, from Election Supervisory Body (Bawaslu) to KPU commissioners," explained Karel, who was present to give testimony virtually.

At the preliminary hearing, the Petitioner said that his party asked the Court to annul Sabu Raijua KPU Decree No. 25/HK.03.1-Kpt/5320/KPU-Kab/I/2020 concerning the Determination of Elected Regent and Deputy Regent of Sabu Raijua dated January 23, 2020. According to the Petitioner, the decision did not come as it was because there had been a process and stages that had been passed previously. Based on the letter from the Consulate General of the United States Embassy in Indonesia dated February 1, 2021, it stated that Orient Patriot R.K. be of the United States of America citizenship. The letter was a response to the letter of Sabu Raijua Bawaslu No. 136/K.Bawaslu-SR/HK.00.021/IX/2020. Thus, formally fulfilling the requirements to be declared as a candidate for Regent was legally flawed.

 

Writer: Sri Pujianti.
Uploader: Nur R

Translator: SO
Editor: R.A. Indah Apriyanti
Managing Editor: Budi Wijayanto

Translation uploaded on 04/08/2021 15.26 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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