University of Andalas’ law lecturer Khairul Fahmi and University of Indonesia’s constitutional law instructor Harsanto Nurhadi taking an oath to testify at the judicial review hearing of Law No. 7 of 2017 on General Elections, Thursday (11/4/2021). Photo by Humas MK/Ifa.
Thursday, November 4, 2021 | 20:20 WIB
JAKARTA, Public Relations—Although the Election Organizer Ethics Council (DKPP) is tasked with supervising the conduct of election organizers and impose sanctions on any violations, it is not a judicial body, said an expert for the Petitioners, University of Andalas’ law lecturer Khairul Fahmi at the material judicial review hearing of Law No. 7 of 2017 on General Elections on Thursday, November 4, 2021. The hearing for the case No. 32/PUU-XIX/2021 had been scheduled to hear the statements of the Petitioners’ experts.
At the virtual hearing, Khairul said the DKPP is one of three agencies designed to play the supervisory role over the election organizers and in the election overall because the General Elections Commission (KPU) and the Elections Supervisory Body (Bawaslu) both play the implementation and supervisory roles.
The DKPP, he added, enforces ethics among election organizers, investigate any violations, and impose sanctions for those violations. “Because, theoretically, it is part of the executive government, not the judiciary,” he said.
In the state administration context, he added, the DKPP is an independent state commission that produces state administrative decisions.
“In our state’s legal development, the principle of elections emerged and was emphasized in the Constitutional Court Decision No. 11 of 2010, where three election organizer bodies referred to in Article 22 are a unity. This means that the election implementation by the KPU, the supervision by Bawaslu, and the ethical supervision by the DKPP are one function of the implementation of honest and fair elections. They are not separate functions although in today’s design they are separate. It is merely so that honest and fair elections can be realized,” Khairul said.
The three institutions are equal, he said. Not one election supervisory body is higher than and supervising the others.
“And, in line with the principle of equality, there shall be no authority granted to one of the agencies that makes it superior than the others, especially if it is not balanced with ways to create balance or to challenge the authority of superior agencies,” he explained.
Also read: KPU Members Question the Constitutionality of DKPP Decision’s Finality and Binding Nature
Correction
Khairul stressed that the Constitutional Court has emphasized that the final and binding decision only applies to the KPU, the president, Bawaslu, and not to election organizers impacted by the DKPP’s decisions. As a consequence, election organizers that are sanctioned can pursue a legal action through the State Administrative Court (PTUN).
“Judging from the petition, when there has been a correction by PTUN, the DKPP remained with its decision because the reason for the decision was final and binding, as we seen in the case that is part of this petition’s argument,” Khairul explained.
He believes the final and binding nature of the DKPP’s decisions as referred to in the Election Law makes the decisions immune from correction.
“This indirectly puts the DKPP in a superior position, even over the decision of the court. So, it its decisions cannot be corrected directly, the DKPP has actually been indirectly made a superior institution over the others, where it can neglect to implement the decision of a court,” Khairul explained.
Also read: Arief Budiman and Evi Novida Ginting Revise Petition on the Constitutionality of DKPP Decision
Election Organization Issue
Furthermore, Khairul added, this also relates to correcting the DKPP decisions directly because they are meant to be final and binding on the president. This means that only decisions by the president, the KPU, and Bawaslu can be petitioned.
“I think this is a problem in the development of the implementation of our elections. The DKPP decides on sanctions with a decision that is final and binding. Then, the president, the KPU, and Bawaslu are obligated to implement it. But those that can be petitioned are the decisions by the president, the KPU, and Bawaslu. So, in order to stop such legal uncertainty among election organizers, what the DKPP decides must be up for challenge in court and if anyone feels their rights are violated, there should be a restorative mechanism through the State Administrative Court,” he said.
Types of Decisions
Meanwhile, the University of Indonesia’s constitutional law instructor Harsanto Nurhadi said that in Law No. 30 of 2014 there are two types of decisions: constitutive and declarative. Constitute decisions are permanent, independent ones that are made by government officials.
“Interestingly, ratifying decisions go through discussion process among government officials, who determine the constitutive decisions. So, [they] are only to declare, only for submission in this context, maybe even mandatory submission required by law. Well, both types of decisions can be challenged in the State Administrative Court and can be canceled. So, whether it is still declarative or already declarative, only to declare what is constitutive, which is really an independent stipulation by a certain authority. In the event that a constitutive decision is annulled, it is of course null and void,” Harsanto explained.
He added that when a declarative decision by the DKPP is revoked, it becomes null and void. “Well, this doesn’t happen in the field. When a presidential decree that implements a decision by the DKPP is revoked, the DKPP still asserts that the decision is final and binding,” he said.
In addition, he stressed that the DKPP’s decisions should be mandatory although it is not explicitly stated to be binding. So, those decisions are what the laws refer to as a decision made in the government. Therefore, it must be understood as a final or constitutive decision.
Also read: Govt: Final and Binding Nature of DKPP Decisions Unlike Judicial Bodies
At the preliminary hearing, General Elections Commission (KPU) members Arief Budiman and Evi Novida Ginting Manik requested the material judicial review petition No. 32/PUU-XIX/2021 on the finality and binding nature of Election Organizer Ethics Council (DKPP) decisions in Law No. 7 of 2017 on General Elections. They question Article 458 paragraph (1) and parts of Article 14 letter m, Article 17 letter m, Article 20 letter m, Article 38 paragraph (4), Article 93 letter g point 1, Article 97 letter e point 1, Article 101 letter e point 1, Article 105 letter e point 1, Article 137 paragraph (1), Article 159 paragraph (3) letter d, Article 458 paragraphs (5), (10), (11), and (14), as well as Article 459 paragraph (5) of the Election Law.
Evi (Petitioner I) revealed that she had been dismissed by the DKPP through the DKPP Decision No. 317-PKEDKPP/X/2019 dated March 18, 2020, followed up by the Presidential Decree (Keppres) No. 34/P of 2020 on the Dishonorable Discharge of KPU Members for the 2017-2022 Term dated March 23, 2020. Although the State Administrative Court (PTUN) had granted her suit in Decision No. 82/G/2020/PTUN-JKT dated July 23, 2020 and annulled the Keppres No. 34/P of 2020—resulting in Petitioner I returning as a KPU member for the 2017-2022 term—the DKPP didn’t acknowledge it.
Therefore, the Petitioners requested that the Court declare the provisions of Article 14 letter m, Article 17 letter m, Article 20 letter m, Article 38 paragraph (4), Article 93 letter g point 1, Article 97 letter e point 1, Article 101 letter e point 1, Article 105 letter e point 1, Article 137 paragraph (1), Article 159 paragraph (3) letter d, Article 458 paragraphs (5), (10), (11), and (14), as well as Article 459 paragraph (5) of the Election Law along the phrase ‘decision’ conditionally constitutional insofar as it be interpreted as ‘decree’ that can be appealed in PTUN.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/5/2021 09:39 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, November 04, 2021 | 20:20 WIB 311