Presidential Ticket 01 Anies Rasyid Baswedan-A. Muhaimin Iskandar entering the courtroom before the ruling hearing of the 2024 presidential election results dispute, Monday (4/22/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the petition filed by Presidential Ticket 01 Anies Rasyid Baswedan-A. Muhaimin Iskandar (Anies-Muhaimin) in the 2024 election results dispute. It asserted that the entire petition was legally groundless and handed down a verdict to reject it.
“[The Court] adjudicated: whereas on the exception, to reject the Respondent’s and the Relevant Party’s exceptions in their entirety; on the subject matter, to reject the Petitioner’s petition in its entirety,” Chief Justice Suhartoyo declared at the ruling hearing for Decision No. 1/PHPU.PRES-XXII/2024 on Monday, April 22, 2024 in the plenary courtroom.
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In its legal opinion, the Court grouped Anies-Muhaimin’s allegations into six topics. First, the independence of election organizers. Second, the validity of the nomination of presidential and vice-presidential candidates. Third, social assistance. Fourth, mobilization or neutrality of state officials or apparatuses. Fifth, the procedure of the implementation of election. Sixth, the use of the KPU’s recapitulation information system (Sirekap).
Election Organizers’ Independence
The Court declared Anies-Muhaimin’s allegation that the appointment of selection team for members of the General Elections Commission (KPU) and the Elections Supervisory Body (Bawaslu) by the President had violated Article 22 paragraph (2) of the Election Law legally groundless. They alleged that the selection team had had more than three members who were part of the government. The Court did not find any objection by the House of Representatives (DPR) relating the composition of the selection team, despite some of the House’s factions supporting Anies-Muhaimin in the 2024 presidential election and could have filed an objection from the start.
However, even if more than three members were part of the government, it was difficult for the Court to find any correlation between that and the independence of KPU and Bawaslu members in performing their duties to organize the election. It was even harder for the Court to find any correlation between that and the vote acquisition of the 2024 presidential and vice-presidential candidates.
The Petitioner’s allegation on Bawaslu not responding to allegations of election violations by Presidential Ticket 02 Prabowo Subianto-Gibran Rakabuming Raka (Prabowo-Gibran), who acted as Relevant Party in this case, due to insufficient material evidence was legally groundless, the Court declared. It asserted that for future improvement so that Bawaslu’s supervision be more beneficial in realizing honest, fair, and principled elections, there needs to be fundamental changes on provisions regulating election supervision, including the procedure to take in case of violations at all election stages.
The Court emphasized that Bawaslu must investigate the substance of reports or findings to prove whether or not election violations have substantially occurred, including in regional elections. Without such changes, honest, fair, and principled elections might not occur. This could lead to Bawaslu losing legitimacy as an election supervisory agency.
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Validity of Presidential Ticket Nomination
The Court also declared legally groundless Anies-Muhaimin’s allegation that the President had intervened in the change to the requirement for presidential tickets and that the KPU had failed to be neutral in verifying and certifying presidential tickets, which had benefitted Presidential Ticket 02. Thus, they requested that the Court disqualify Prabowo-Gibran.
The Court asserted that the KPU’s direct implementation of the Constitutional Court Decision No. 90/PUU-XXI/2023 without amending its regulation (PKPU No. 19 of 2023) was lawful. If it had not, it would have hindered the implementation of the election and could potentially lead to violations of the citizens’ constitutional rights to become presidential and vice-presidential candidates.
Although the KPU as the election organizer is obliged to implement the Constitutional Court’s decision that could affect norms on the nomination of presidential and vice-presidential candidates, it was also bound by predetermined schedule and stages. The deadline for registration of candidate pairs was October 25, 2023. However, the KPU should also continue to seek changes to PKPU, including by consulting with the House to adjust the requirements following the Constitutional Court Decision No. 90/PUU-XXI/2023.
This then led to Election Organizer Ethics Council (DKPP) Decisions No. 135, 136, 137, and 141-PKE-DKPP/XII/2023 on February 5, 2024, which stated that KPU’s actions that prioritized administrative actions were in violation of code of ethics because they were not in accordance with the administrative governance of the election stages and were contrary to the provisions of KPU regulations and the Election Law. As a consequence, the DKPP gave the KPU commissioners a stern warning and a final stern warning. However, the Court could not necessarily use those decisions on ethics violations as a reason to cancel the results of the KPU’s verification and certification of the presidential tickets. The council only questioned why the KPU had not immediately drafted changes to PKPU No. 19 of 2023 as a follow-up to Constitutional Court Decision No. 90/PUU-XXI/2023, but it did not question or cancel the nomination of Presidential Ticket 02. The other presidential tickets did not file any objection to the certification of Presidential Ticket 02, including the Petitioner.
In addition, in Decision No. 2/MKMK/L/11/2023, the Ethics Council of the Constitutional Court (MKMK) declared that a serious violation of ethics in the making of Decision No. 90/PUU-XXI/2023 had not necessarily been sufficient evidence to convince the Court that nepotism had led to abuse of power by president in the change of requirement for presidential tickets. Moreover, the conclusion of MKMK Decision No. 2/2023, which was later cited in Constitutional Court Decision No. 141/PUU-XXI/2023 among others, emphasized that the Council did not have the authority to cancel the validity of Constitutional Court decisions. Thus, the Court is of the opinion that there had been no problem in the fulfillment of the vice-presidential candidate requirements by Gibran Rakabuming Raka and in the results of verification and certification of presidential tickets by the KPU.
The Petitioner’s allegation that the KPU had manipulated the results of political party verification by giving a pass to all political parties, the Court asserted, was not supported by convincing evidence. Moreover, legal facts revealed in the proceedings show that this verification had been supervised by Bawaslu. Thus, the argument must be ruled out and had no basis in law.
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Social Assistance
The Court carefully examined the parties’ testimonies, including of ministers and documents submitted as supporting data and/or evidence. It found legal facts that the social assistance (bansos) program, which is part of the social protection (perlinsos) program, is regulated in the State Budget Law of 2024, specifically Article 8 paragraph (2) letter a and its elucidation and Article 20 paragraph (1) letter h and its elucidation. Of the total expenditure of Rp3,325.1 trillion planned in the state budget (APBN), as much as Rp496.8 trillion is budgeted for social protection programs. The Court considered the planning and distribution of social assistance a legal action because there are laws and regulations that underlie it.
The Court argued that it could not confirm the suspicion of undue intentions in the preparation of social protection program, which was reinforced by the ministers’ testimonies, especially the Minister of Finance. It also did not find convincing evidence that corroborated the Petitioner’s allegation of undue intentions. Moreover, misuse of budget related to the distribution of social protection funds is the authority of law enforcement agencies.
Social protection can be intended to anticipate natural disasters as a preventive measure. It can also be distributed post-event as a mitigating measure. Thus, the Court asserted, social protection programs can be and are commonly carried out before and after a disaster.
The Court could not confirm there had been any irregularities or violations of the use of social protection budget, which the Petitioner alleged. This is because the budget’s planning, budgeting, implementation, and accountability has been clearly regulated, including the implementation of the social assistance budget that is distributed at once directly by the president and ministers as part of the budget cycle whose use and implementation has been regulated. The Court asserted that there was no evidence that empirically showed that social assistance had influenced or forcibly directed voters.
The Petitioner could not convince the Court whether the social assistance they referred to was that by the Ministry of Social Affairs or community assistance by the President sourced from the presidential operational funds. It also could not confirm the Petitioner’s argument on the causal relationship or relevance between the distribution of social assistance and voters’ choice and whether the former could have led to increase of votes for any of the presidential tickets.
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Mobilization, Neutrality of State Officials
The Court considered the alleged election violation by Minister of Trade Zulkifli Hasan, which had been followed up by Bawaslu in accordance with its duties, authority, and obligations. Bawaslu could not follow up on the report or findings of the incident due to the absence of regulations related to activities that could be categorized as campaigns implemented before the campaign period had begun. In this case, the regulations contained in the Law and PKPU do not provide further arrangements for all forms of actions and activities benefit any election participants before and after the campaign period. Such a legal vacuum is a serious concern for the implementation of future elections, including the upcoming regional head elections.
In addition, Bawaslu did not pay attention to other aspects such as the use of state facilities by and the self-image of state administrators while performing their duties during election campaign. These issues arose because Bawaslu has no clear indicators that show whether a certain event meets material requirements or not, leading to suspicions of election violations. Meanwhile, the Court could not consider the matter further so it did not reach any conclusion on the truth of the Petitioner’s allegation. This also applied to the Petitioner’s allegation of Defense Minister Prabowo Subianto, himself a presidential candidate, having carried out events benefitting a certain presidential ticket.
Election Procedure
The Petitioner alleged irregularities in the permanent voters lists (DPT) had occurred in a number of regions, including minors having cast a vote; voters aged over 1,000 years old; voters aged over 100 years old; voters with names consisting of one letter and two letters; addresses with RT and RW number zero; and permanent voters with the same RT, RW, and polling station.
The Petitioner also argued that many ballots had been previously marked for Presidential Ticket 02, voters voted more than once, and money politics (vote buying) involving polling committees (PPS).
However, the Court argued the Petitioner could not prove their allegation, so their arguments on alleged violations of election procedure were declared legally groundless.
Use of Sirekap
In the KPU regulation and decision, Sirekap is said to be a means of publication and a tool aiding the recapitulation of vote count results since voting stage at polling stations, recapitulation of vote count results, to the certification of elected election contestants and the determination of seat gains. The Petitioner’s argument that the vote acquisition could be changed by Sirekap and that C result form metadata could be removed was denied by the KPU’s experts and witnesses, who did not deny changes of data in Sirekap.
While reading the Court’s legal opinions, Constitutional Justice Ridwan Mansyur stated that changes to the data on the Sirekap website had led to confusion, assumption, and misinterpretation among the community, given that the website was aimed at publicizing information relating to the results of the election.
This, he said, should be a lesson for the election organizers. The IT system that should have been a crucial aid to implement certain duties stipulated in the KPU regulations and decisions, in fact, did not provide any certainty, although the data changes were the result of data correction and updates at the polling station working committee (KPPS) level. Not to mention, the KPU had made a decision to temporarily halt the website, barring the community from accessing it, thus fueling the community’s already negative assumptions.
“Issues on the use and implementation of Sirekap in the vote counting process until the vote recapitulation, which the Petitioner alleged, were admitted by the Respondent (KPU). This brought the Court to the conclusion that the lack of validation of data on Sirekap would make the data inaccurate,” Justice Ridwan emphasized.
Amendment to Laws and Regulations
While reading the Court’s legal opinions, Chief Justice Suhartoyo said that there are flaws in the current laws and regulations, i.e. Election Law, KPU regulations, and Bawaslu regulations, relating to election. This has led to election organizers, especially Bawaslu, having difficulties in taking actions against election violations. The Election Law has not regulated activities that can be categorized as campaign activities done before and after the campaign period begins and ends.
Although Article 283 paragraph (1) of the Election Law has detailed prohibition on state officials, structural officials, and functional officials in public positions as well as state civil apparatuses (ASN) from carrying out events that show partiality to any election contestants before, during, and after campaign period, subsequent articles in the Law did not specify campaign events before or after campaign period.
“Such absence of provisions has led to loopholes, causing election violations escaping legal and administration sanctions,” the chief justice said.
In order to provide legal certainty and justice for the implementation of future general and regional elections, the Court asserted, it is important for the Government and the House to make amendments to the Election Law, the Regional Election Law, as well as laws and regulations on election campaigns, relating to administrative violations and criminal violations, if necessary. Any overlapping arrangements might cause ambiguity, so they must also be addressed.
Dissenting Opinions
For the first time in the Constitutional Court's history, some of the constitutional justices gave dissenting opinions on the presidential election results dispute. Constitutional Justices Saldi Isra, Enny Nurbaningsih, and Arief Hidayat dissented to Decision No. 1/PHPU.PRES-XXII/2024.
Justice Saldi asserted that the Court should have ordered a revote in the regions where social assistance had been politicized and where state apparatuses and state administrators had been mobilized. He believes such a decision would be legally warranted. “The Court should have ordered a revote in several regions,” he said.
Justice Enny Nurbaningsih also shared the opinion. She asserted that for the sake of honest and fair election as guaranteed by the 1945 Constitution, the Court should have ordered a revote due to indications of officials having been impartial their correlation to the distribution of social assistance in several regions.
Meanwhile, Justice Arief said that the Court should have ordered the KPU to hold a revote in DKI Jakarta, West Java, Central Java, East Java, and North Sumatera Provinces within 60 days. It should also prohibit the distribution of social assistance before and during the revote, he emphasized.
Author : Mimi Kartika
Editor : Nur R.
Translator : 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.
Monday, April 22, 2024 | 18:57 WIB 320