Law professor of University of Indonesia Topo Santoso testifying at the fifth material judicial review hearing of the Election Law for case No. 32/PUU-XIX/2021, Tuesday (11/30/2021). Photo by Humas MK/Ilham W.M.
Tuesday, November 30, 2021 | 20:21 WIB
JAKARTA, Public Relations—The final and binding DKPP (Election Organizer Ethics Council) decisions as stated in Article 458 paragraph (13) of Law No. 7 of 2017 on General Elections have resulted in the absence of a mechanism for direct correction of those decisions by the State Administrative Court (PTUN). In fact, correction of decisions on election is very important as there is always the possibility of errors in the decision-making process and in the substance of the decisions, said law professor of University of Indonesia Topo Santoso at the fifth material judicial review hearing of the Election Law for case No. 32/PUU-XIX/2021.
The hearing was held by the Constitutional Court (MK) on Tuesday, November 30, 2021 to hear experts for the Petitioners. In this case, 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.
Also read: KPU Members Question the Constitutionality of DKPP Decision’s Finality and Binding Nature
In his testimony, Topo said that the DKPP members might interpret the Election erroneously. “The DKPP members could once interpret [the Election Law] and misinterpretation could happen,” he said before the panel chaired by Deputy Chief Justice Aswanto.
He added that the final and binding nature of decisions requires that the members of the institution be credible and capable. Such a nature is also needed for the fast-track resolution as applies in the resolution of election results disputes in the Constitutional Court.
“Decisions on violations of code of ethics by election administrators do not require fast-track resolution, such as disputes over stages or processes, for example, electoral candidates or presidential candidates or candidates for members of the DPR or DPRD who are deemed ineligible. Even for this last one, there is a correction mechanism in the PTUN. So, any error by Bawaslu can still be corrected. The settlement of violations of code of ethics by election administrators is not on the fast track, so there is no need for final and binding decisions,” he explained.
Also read: Arief Budiman and Evi Novida Ginting Revise Petition on the Constitutionality of DKPP Decision
Respecting PTUN Decisions
Topo said further that the DKPP’s final and binding decisions without limitation on their interpretation, resulting in the PTUN decisions, which follow up on the DKPPs decisions, not being obeyed by the DKPP. The DKPP’s misunderstanding of the existence, nature, and function of PTUN decisions can be very detrimental to KPU members and also Bawaslu (Elections Supervisory Body). This is because the DKPP does not consider that the decisions of judicial institutions such as PTUN exist and apply.
“In our legal system and in other countries, judicial decisions must be respected and implemented, unless they can still be challenged. Furthermore, other institutions responsible for following up on the DKPP decisions, for example the president, in the context of dismissing members of the KPU and Bawaslu, if the PTUN adjudicates the state administrative dispute over the issuance of the presidential decision, the DKPP no longer has any authority over it. The DKPP must respect the decision of the PTUN or other judicial decisions should other institutions be involved,” Topo explained.
Also read: Govt: Final and Binding Nature of DKPP Decisions Unlike Judicial Bodies
Return As Ad Hoc Committee
Topo recommended that the DKPP be changed back into an ad hoc committee. He believed if it remained a permanent body, it must reorganize its main duty of processing and providing punishment recommendations for ethical violations by election organizers—the KPU and Bawaslu. He also suggested that the ad hoc committee consist of community leaders, academics, and former election organizers. It should be formed only if there are allegations of ethical violations by election organizers.
At the end of his testimony, Topo said that if the DKPP issues decisions on ethical violations, there should be a body who is authorized to correct them if necessary, such as PTUN.
“As such, the DKPP decisions in administrative context might be seen as state administrative decisions, which can then be corrected by the judiciary. It is an alternative if [my] expert opinion on the restructuring of the DKPP cannot be implemented,” Topo stressed.
Function Returned
Topo’s views were echoed by associate professor of constitutional law at Gadjah Mada University Zainal Arifin Mochtar. In his testimony, he said that it would be appropriate that the DKPP’s function as an ad hoc committee be returned. “Because [if it is] ad hoc, in the event of ethical violation cases by the regional KPU and the regional Bawaslu could be resolved by the KPU as the main institution,” he said.
Zainal also said that it would be better that an ethical judicial body for all state officials be established. “I agree with Prof. Jimly that in the future an ethical judicial body can be formed as a development of the court law of ethics and the court of justice for a better constitutional concept,” he stressed.
Also read: Expert: DKPP an Election Supervisory Body, Not a Judicial Body
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 12/8/2021 09:05 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.
Tuesday, November 30, 2021 | 20:21 WIB 239