Ganjar-Mahfud’s Expert: Court Can Investigate TSM Violations, Highlight Ethical Breach in Gibran’s Candidacy

Experts for Candidate Pair 03 Ganjar-Mahfud taking oath before the constitutional justices at a presidential election dispute hearing, Tuesday (4/2/2024). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Constitutional Court (MK) has examined the arguments of structured, systematic, and massive (TSM) violations in the handling of the 2024 and 2019 presidential election results disputes (PHPU). This statement was made by Andalas University constitutional law expert Charles Simabura at the second hearing for the 2024 presidential PHPU for case No. 2/PHPU.PRES-XXII/2024 was held on Tuesday, April 2, 2024 in the plenary courtroom.

As an expert for Candidate Pair 03 Ganjar Pranowo and Moh. Mahfud MD, Charles mentioned that the concept of TSM violations has been integrated into Indonesian legal politics, notably within laws like the Pilkada Law and the Election Law. He said government officials and election organizers are susceptible to becoming implicated in potential TSM violations.

“Our legal politics consistently culminate in such occurrences. In fact, in every election, structured violations are primarily perpetrated by those two—either election organizers or government officials,” said Charles to Chief Justice Suhartoyo and the other seven justices.

He further added that in the 2014 election, when Prabowo Subianto and Joko Widodo were running for office, allegations of violations were primarily aimed at election organizers rather than the government, particularly President Susilo Bambang Yudhoyono, who was not seeking re-election. Therefore, Prabowo, who filed a lawsuit against the election results at that time, contended that violations of electoral laws were attributable to the election organizers.

“To investigate TSM violations, the Constitutional Court is not a comparative institution for Bawaslu or DKPP decisions, not a comparator or cassation court, but it serves to examine facts at the hearings,” explained Charles.

He also stressed the Constitutional Court’s important and strategic role in safeguarding Indonesia’s constitutional democracy. With regard to the 2024 election, especially the allegation of electoral fraud and violations brought before the Court by the Petitioner, it is imperative for the Court to thoroughly examine and evaluate the evidence, ensuring a factual and high-quality assessment.

Evidence of electoral fraud is important in determining the legitimacy of election outcomes, particularly in the presidential election. It ensures that the election has adhered to fair play, operates under professional supervision, and upholds honest and transparent enforcement of laws and regulations. Allegations of fraud during the implementation stages of the election can be brought before the Constitutional Court, especially if it has not been examined and decided by the Elections Supervisory Body (Bawaslu), and even when it has.

“This means that it is important for the Constitutional Court to ensure that Bawaslu’s handling has adhered to the principles of honest and fair election,” Charles said.

He explained that the Constitutional Court’s jurisdiction to investigate TSM violations extends beyond those outlined in the Election Law. This authority was established by the Court during the resolution of regional election disputes, which encompassed various forms of violations such as manipulation of candidacy administration requirements, money politics (vote buying), bureaucratic politicization, negligence of election organizers, vote manipulation, threats/intimidation, and the election organizers’ lack of neutrality. Meanwhile, in the presidential PHPU, the Court examined alleged TSM violations in Decision No. 01/PHPU-Pres/XVII/2019, although the allegation was not conclusively proven. These violations included the non-neutrality of state apparatus (police and intelligence agency), discrimination and abuse of power by the law enforcement, misuse of bureaucracy and state-owned enterprises (BUMN), misuse of state budgets and government programs, misuse of BUMN budgets, restrictions on media and press freedom, anomalous final voters lists (DPT), discrepancies in the KPU’s (General Elections Commission) Situng (counting information system) concerning DPT, and deliberate omission of C7 documents in various regions.

Sirekap Controversy

Moreover, Leony Lidya, an expert in software engineering and management from Pasundan University, had conducted an analysis of the KPU’s Sirekap (recapitulation information system). Her assessment as a system engineer and a programmer led to the conclusion that the controversy surrounding Sirekap is by design, starting from the initial stage of uploading C1 forms at polling stations all the way to the moment when the KPU announced the discontinuation of Sirekap.

“When the KPU dismissed Sirekap, claiming it would not be utilized in the tiered recapitulation, I perceived Sirekap as a silent witness to the irregularities of the 2024 Election,” she remarked.

She suggested that in order to prove election crimes and its impact on election results, a forensic audit of Sirekap and the data of the 2024 election results is imperative. To bolster transparency and accountability of the election recapitulation process by the KPU, access to Sirekap must be opened, and the uploading of genuine C1 and D result forms should be ensured to reach 100 percent completion.

At the first session of the hearing from 08:00 to 12:57 WIB, where Candidate Pair 03 presented a list of experts, professor of philosophy of Driyarkara Philosophy College (STF) Franz von Magniz Suseno, explained about ethics. He emphasized that mere adherence to the law is insufficient for a president; rather, the president must demonstrate that their foremost responsibility is to safeguard the safety and welfare of the entire nation. It is imperative that the president refrains from actions that favor their family, relatives, or friends, as the president belongs to the all people.

“The gravity of ethical violations lies in the principle that people will willingly comply with the Government when it operates on the foundation of just and wise laws, not based on the law and the interests of the whole community to benefit their group,” said Franz, who is affectionately known as Romo Magnis.

He also mentioned ethical violations that occurred in the 2024 elections, such as the registration of Gibran Rakabuming Raka as vice-presidential candidate, the President’s partiality, nepotism, distribution of social assistance (bansos), and manipulation of the electoral process. Romo Magnis added that Gibran’s candidacy was tainted by serious ethical violations. For the Constitutional Court Decision No. 90/PUU-XXI/2023 regarding the minimum age requirement for vice-presidential candidates, Chief Justice Anwar Usman was declared to have committed a serious ethical violation by the Constitutional Court Ethics Council (MKMK) and was sanctioned with dismissal as chief justice of the Constitutional Court. Then, KPU chairman Hasyim Asy’ari faced an ethical violation ruling by the Election Organizer Ethics Council (DKPP). He was sanctioned with a final stern warning due to the acceptance of Gibran’s vice-presidential candidacy before the revision of KPU Regulation (PKPU) No. 19 of 2023, following the Constitutional Court’s decision.

Not Meeting Requirement

In his capacity as Ganjar-Mahfud’s expert, I Gusti Putu Artha, a KPU member of 2007-2012, said a violation had occurred in the current presidential candidacy. The PKPU No. 19 of 2023, which regulates the presidential tickets’ candidacy, has not been revised following Constitutional Court Decision No. 90/PUU-XXI/2023. This, he said, is in violation of Article 231 paragraph (4) of the Election Law. As this regulation has not been changed, he stressed, Gibran should have been declared not meeting the minimum age requirement for a vice-presidential candidate.

“Aside from violating Article 231 paragraph (4) of the Election Law, the issuance of the KPU decree [on Gibran’s candidacy] also violated PKPU No. 1 of 2022 on the procedure for drafting regulations and Article 30 paragraph (2), which explains that in proposing a draft decree, the drafter bureau should harmonize KPU regulations. In fact, the content of the KPU Decree No. 1378 of 2023 on the technical guidelines for the registration, verification, and certification of presidential tickets in the 2024 election was not in line with the KPU regulation,” Putu Artha emphasized.

KPU chairman Hasyim Asy’ari first protested that Putu Artha would be presented by Candidate Pair 03 Ganjar-Mahfud since he had been a witness for the National Democratic Party (Nasdem) during national vote counting in the KPU. In response, Putu Artha showed a document indicating his resignation from the party. “This is the receipt of my resignation as per [March] 20 (from Nasdem),” he said.

Misuse of Social Assistance

In addition, senior economist Didin S. Damanhuri said that the allocation of social assistance in 2024 had increased from previous years. The distribution of cash and rice aid ahead of the 2024 election was a veiled campaign by President Joko Widodo (Jokowi) to ensure his son’s victory. He used state facilities when the economy had not fully recovered after the COVID-19 pandemic.

“Cash and rice aid, which should have been for the poor, was claimed as aid from Jokowi for the victory of Candidate Pair 02,” Didin said.

The disbursement of social assistance ahead of voting day in the form of direct cash assistance (BLT) for food risks mitigation that was not included in the 2024 State Budget (APBN) Law was done unilaterally by President Jokowi without the approval of the House of Representatives (DPR). In addition, the politicization of massive social assistance disbursements in 2024, which involved chairpersons of the political parties supporting Prabowo-Gibran, President Jokowi, and a number of ministers—all without taking leave—used official facilities and state resources for electoral interests.

This, Didin believes, was the manifestation of the pork barrel politics that legislative members of the United States have often practiced. This political practice was highly effective given that the people’s economy post-COVID had not recovered. At the time, food and cash assistance were like oasis that mitigated crisis of the low-level economy, whose political literacy was low and more than half of which are poor or slightly above poverty level. As such, Didin said, most of the people viewed food and cash assistance as the President’s show of kindness, to be returned by voting for the candidates he supported.

In addition, political psychology professor of Universitas Indonesia Hamdi Muluk said the potential of assistance manipulation to ensure party electoral support or the people in power often sacrifices fair distribution that is based on needs. This phenomenon is known as clientelism, where social assistance is used to maintain existing power structure than to serve public interest. Hamdi quoted Diaz et al. (2016), who tried analyzing social assistance in Mexico City, whose findings explained how social assistance designed, implemented, and distributed in ways that maximize political benefits for the people in power often disregards needs or social assistance.

“Social assistance has become a crucial tool in politics, not only to relieve the poor, but also as a political strategy to influence voters,” Hamdi stressed.

Jokowi, Key to Victory

Next, sociologist of Gadjah Mada University Suharko said that President Jokowi was key to Prabowo-Gibran’s victory. A sign of victory started when President Jokowi started showing support for Candidate Pair 02. Despite his position as head of state and government, which should be neutral, he finally took a side and this led to signs of unfairness in the election process and possibly the results of the 2024 election. His support for Candidate Pair 02 and the nepotism of Gibran’s nomination as vice-presidential candidate were systematically designed winning strategies.

“I believe Candidate Pair 02 has had the key to victory and this marked the beginning of the president’s partiality and favoritism, when he was supposed to be behind all Indonesian people,” Suharko said.

The president’s political maneuver to ensure the victory of Candidate Pair 02 was manifested in the disbursement of social assistance goods nearing election day. The construction of his image, the perpetuation of his hegemony, the mobilization of state apparatuses, and the consolidation of power were part of his political moves to ensure that Prabowo-Gibran won.

Meanwhile, social psychology expert Risa Permana Deli talked about individual perspectives in voting. She said that the cause-and-effect schemes are most often used in social engineering. In populist politics, these schemes are most often engineered and this kind of reasoning is happening in Indonesia’s current democracy.

“Populist politics uses this schematic principle to simplify populist political reasoning that should be authoritative, complex, risking the values of collectivity to finally engineer a victory,” she stressed.

Court Not Only Rules Election Results Disputes

Meanwhile, constitutional law expert of Brawijaya University Aan Eko Widiarto explained in his testimony the Constitutional Court’s authority in “adjudicating disputes over the results of general elections.” He believes that the word “authority” in the 1945 Constitution has been reduced in the Constitutional Court Law, the Election Law, and the Constitutional Court Regulation (PMK) No. 4 of 2023 on the procedural law for the presidential election results disputes.

Aan said that in terms of terminology, the phrase “about results” means things relating to results, not only the results itself. These things include the process that generate those results. The elimination of the word “about” reduces the meaning, as it leaves only “results,” not other matters relating to results.

“Not to mention, the phrase then change into ‘disputes over the certification of election results’ and ‘disputes over the vote acquisition in the final stage of the election results,’ so the phrase on the Constitutional Court’s authority ‘disputes about the results of general elections” in the 1945 Constitution can no longer be recognized. By returning to the phrase on authority as determined by Article 24C paragraph (1) of the 1945 Constitution, the meaning of ‘deciding disputes about general election results’ would have a broader or comprehensive meaning than just deciding disputes about general election results,” Aan explained.

The session was suspended until 14:00 WIB. Aside from the nine experts, the Ganjar-Mahfud legal team had also presented ten witnesses to testify today.

Also read:

Ganjar-Mahfud File Petition on Dispute Over Presidential Election Results

Ganjar-Mahfud Allege Abuse of Power as Key Violation of 2024 Presidential Election

KPU and Prabowo-Gibran Refutes Allegation of Violations

The Nepotism Allegations Made by the Ganjar-Mahfud Irrelevant

The Ganjar-Mahfud team alleges there has been legal vacuum relating to the prevention, mitigation, and rehabilitation of the impact of nepotism in the Election Law, which led to coordinated abuse of power. Such violations are key violations in the 2024 presidential election.

Candidate Pair 02 alleges that nepotism that President Joko Widodo did in boosting Gibran Rakabuming Raka as the Vice-Presidential Candidate 02 had led to abuse of power in all levels of power and government. This fact is apparent in the Election Law’s lack of mechanism of handling coordinated TSM violations, thus resulting in clear legal vacuum.

The Petitioner also alleges that the electoral law enforcement instruments have been ineffective, given General Elections Commission’s (KPU) lack of independence in implementing the 2024 presidential election, the Election Organizer Ethics Council’s (DKPP) protection of the KPU (Respondent) by disregarding its own decision, and Bawaslu’s (Elections Supervisory Body) ineffective handling of reported violations.

With their arguments, the Petitioner requests that the Court invalidate the KPU Decree No. 360 of 2024, pertaining to the stipulation of the 2024 presidential election results, and to disqualify Presidential and Vice-Presidential Candidate Pair 02 Prabowo Subianto dan Gibran Rakabuming Raka and the KPU Decree No. 1632 on the stipulation of the 2024 presidential and vice-presidential candidates dated November 13, 2023 and the KPU Decree on the 2024 presidential election dated November 14, 2023.

Author         : Mimi Kartika
Editor          : Lulu Anjarsari P.
PR               : Fauzan Febriyan
Translator     : Fuad Subhan, Yuniar Widiastuti (RA)

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, April 02, 2024 | 15:00 WIB 40