Court, IFES Compare Judicial Authority on Election

Head of the Center for Research, Case Review, and Library Management (Puslitka) Pan Mohamad Faiz welcoming International Foundation for Electoral Systems (IFES) vice president Katherine Ellena for an audience, Monday (9/11/2023) at the Constitutional Court. Photo: MKRI/Panji.

JAKARTA (MKRI) — The Constitutional Court (MK) welcomed the International Foundation for Electoral System (IFES), represented by IFES vice president Katherine Ellena, for an audience on Monday, September 11, 2023 at the Court’s building. Head of the Center for Research, Case Review, and Library Management (Puslitka) Pan Mohamad Faiz and others employees met with Ellena.

Ellena delivered a presentation on the comparison of judicial authority on election, especially the annulment of election by judicial institutions. She asserted that most judicial institutions in the world have the authority to cancel elections. However, the approach in making such decisions differs from one country to another.

She divides them into three approaches: the prescriptive, the results-oriented, and the mixed approaches. The prescriptive approach, she said, concerns to the annulment of an election due to a number of violations without considering the impact on the outcome of the election. The Mexican judiciary applies this approach.

“The advantage of applying this approach is that it emphasizes convenience, but it can be a problem if the violations that occur do not really have an impact on the election results,” she said.

She also explained the results-oriented (determinative) approach, where the judiciary observes the influence of violations on the election results.

“This approach observes the votes affected by the violations that occur. In short, it compares the number of votes generated through violations to the number of votes generated by election participants,” she explained.

The Constitutional Court of Austria, she said, applies this approach, which sometimes is referred to as a “magic number” rule when it was used to overturn the results of the second phase of the election in 2016.

“However, the Supreme Court of Canada has found this approach potentially problematic, especially with regard to the ‘magic number’ rule. This is because the votes of the offending voters will be given to the losing elector while it could be that in reality, the votes belong to another election participant. So, this approach could be inaccurate,” she explained.

Finally, Ellena explained the mixed approach, which Kenya applied in 2017 and 2020. In 2017, Kenya annulled the results of the presidential election using this approach. However, Kenya did not cancel the results of the presidential election in 2020.

“In 2017, Kenya adopted this mixed approach on the basis that if an election was conducted with irregularities and did not comply with the law, the election was harmed, regardless of whether the outcome was affected or not. This was demonstrated by the Hackney case, where two of the 19 polling stations were closed for the entire day, and 5,000 voters were unable to vote,” she added.

Ideal Deadline

During the Q&A session after the presentation, substitute registrar Hani Adhani asked about the deadline for adjudicating disputes over election results. The Constitutional Court of Indonesia is given only 14 days to resolve disputes over presidential elections, and 30 days for legislative election disputes. “In your opinion, is this an ideal or sufficient deadline?” he asked.

In response, Ellena revealed that the judiciary is under pressure to handle complex election disputes within such a short deadline. However, she cited several countries where the judiciary is given only three days to resolve election disputes.

“Kenya has the same deadline as Indonesia, which is 14 days. The Supreme Court of Kenya proposed a change to this to the parliament, by proposing 30 days to resolve presidential election disputes and six months to resolve legislative election disputes. I personally believe that 14 days is not enough to handle election disputes, which are usually complicated. A 30-day deadline for resolving presidential election disputes is more reasonable as long as the Constitutional Court of Indonesia provides sufficient information to the public regarding the progress of the cases being handled,” she answered.

Author       : Utami Argawati/LAP
Editor        : Lulu Anjarsari P.
Translator  : Tahlitha Laela/Yuniar Widiastuti (NL)

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.

Monday, September 11, 2023 | 15:50 WIB 112