Petitioner at the ruling hearing for the material judicial review of the Regional Election Law, Thursday (11/14/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) asked the legislatures to consider the adaptation of digital technology in the form of electronic voting in elections, which it believes would improve effectiveness and efficiency in a legitimate political contest.
Such was the Court’s legal opinion in Decision No. 137/PUU-XXII/2024, delivered by Constitutional Justice M. Guntur Hamzah. The material judicial review petition of Law No. 1 of 2015 on the Stipulation of the Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) was filed by Satrio Anggito Abimanyu and ten other students of the Islamic University of Indonesia (UII) of Yogyakarta.
Justice Guntur mentioned that there are several electronic-based voting methods, such as electronic voting (e-voting), which has been practiced in the election of the head of hamlet in Jembrana, Bali Province in 2009 and the election of the village head in Babakan Wetan Village, Bogor, West Java Province in 2017. Several countries have also conducted e-voting in with varying degrees of success.
He added that in Decision No. 147/PUU-VII/2009 the Constitutional Court stated that the use of e-voting is constitutional under cumulative conditions: (i) it does not violate the principles of direct, public, free, confidential, honest, and fair election; and (ii) the region that applies the e-voting is ready in terms of technology, financing, human resources, and software, the community and other necessary requirements are prepared. In addition to e-voting, there is internet voting (i-voting) where voting can be done anywhere. In addition to the use of electronic voting equipment, there is also proxy voting, which is classified as special voting arrangements (SVA) because voters authorize other people to cast their votes. This method is often used to help voters with special needs (disabilities) who need the help of others to be able to exercise their voting rights. In addition to these three methods, there is also early voting (where voters can vote before the scheduled election day), postal voting [voting where ballots are distributed to voters (and usually returned) by post], and mobile ballot boxes (mobile polling stations).
Justice Guntur emphasized that the determination of which election/voting method can be used is not the Court’s authority, but the legislatures’. However, they must take into account the principles of elections and all aspects of infrastructure and facilities.
“In this regard, in order to protect the voters’ right to vote, which is the citizens’ constitutional right, the issues raised by the Petitioners must receive the legislatures’ attention to be regulated in future amendment to the election law, in this case the simultaneous regional election in 2029 and so on,” Justice Guntur explained delivering the Court’s legal opinion at the ruling hearing on Thursday, November 14, 2024 in the plenary courtroom.
Mix-Up
However, Justice Guntur said, the Petitioners had mixed up the provisions on the conventional election system with that which utilizes electronic equipment and other election systems (proxy voting). The Petitioners requested that the phrase “at another location” in Article 62 paragraph (1) of Law No. 1 of 2015 be interpreted as “including outside the province of origin, and/or outside the district/city of origin, through electronic voting equipment as referred to in Article 85 paragraph (1) letter b, or through a proxy/representative (proxy voting),” so that the article would read, “Voters who have been registered in the Final Voters List as referred to in Article 58 paragraph (6) and then change their residence or because they want to exercise their voting right including outside the province of origin, and/or outside the district/city of origin, through electronic voting equipment as referred to in Article 85 paragraph (1) letter b, or through a proxy/representative (proxy voting), must report to the local PPS.”
The Court emphasized that Article 62 paragraph (1) of Law No. 1 of 2015 is a conventional electoral system provision that regulates moving to vote due to “certain circumstances”, including moving residence or because they want to exercise their voting right elsewhere, which causes voters to be unable to vote in the area where voters are registered in the final voters list (DPT) and be required to report to the PPS. The Petitioners basically requested that voters who are unable to vote in their registered domicile or who are outside the province of origin and/or outside the district/city of origin due to “certain circumstances” can still exercise their voting right through electronic voting equipment as stipulated in Article 85 paragraph (1) letter b or through a proxy/representative (proxy voting). The petition is misconceived because it confused the conventional election system with an election system that utilizes electronic equipment and other election systems (proxy voting).
“Therefore, the Petitioners’ a quo petition was legally groundless,” said Justice Guntur at the ruling hearing chaired by Chief Justice Suhartoyo. The Court rejected this petition in its entirety.
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At the preliminary hearing on Friday, October 4, the Petitioners argued that their constitutionals right protected under Article 28D paragraph (1) of the 1945 Constitution had been harmed by the enforcement of Article 62 paragraph (1) in conjunction with Article 95 paragraph (2) of Law No. 1 of 2015. The phrase “at another location” and “at another polling station” in those provisions do not provide a clear explanation on the relocation of voting location, especially for relocating voters. As a result, the Petitioners, who are currently studying outside of their hometowns, could potentially lose their right to vote in the regional election on November 27 this year.
They believed they were in “a certain condition” as stated in Article 50 of PKPU No. 7 of 2024, since they cannot vote at their original polling stations while studying outside of their original domiciles. However, there are no provisions specifically accommodating relocating voters, so they could potentially be unable to vote.
Therefore, the Petitioners asked the Court to prioritize their petition in order to protect their constitutional rights and prevent constitutional impairment. They also requested that the Court declare the phrase “at another location” in Article 62 paragraph (1) of Law No. 1 of 2015 conditionally unconstitutional and not legally binding if not interpreted as “outside of the province of origin and/or regency/city of origin” and the phrase “at another polling station” in Article 95 paragraph (2) of Law No. 1 of 2015 conditionally unconstitutional and not legally binding if not interpreted as “at a polling station outside of the province of origin and/or regency/city of origin.”
Author : Utami Argawati/L.A.P.
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : 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.
Thursday, November 14, 2024 | 20:07 WIB 88