Election Result Dispute Fritz Egypt Final

SETTLEMENT OF DISPUTES ON THE RESULT OF GENERAL ELECTIONS AT THE CONSTITUTIONAL COURT : AN INDONESIA EXPERIENCE FRITZ EDWARD SIREGAR Constitutional Justice Assistant The Constitutional Court of Republic of Indonesia

Curriculum Vitae

Educational Background

Universitas Indonesia, Erasmus University of Rotterdam, Hague Academy of International Law

Academic Work

Universitas Kristen Indonesia, Swiss German University

Career History

Ali Budiarjo Nugroho Reksodiputro (ABNR), Indover Bank Amsterdam, International Foundation for Election System (IFES), High Court of Australia, Mahkamah Konstitusi RI

[email_address]

Reformation Demand Upon President Soeharto Step Down

The amendment of 1945 Constitution

Eradicate duo function of Military

Law enforcement , human rights and eradication of corruption collusion and nepotism

Local autonomy

Freedom of Press

Mewujudkan kehidupan demokrasi

Background of Amendments

No check and balances among constitutional organs

Executive Heavy

Contain flexible articles lead to multi interpretation

Unclear on very important issues (e.g. rule of law, protection of human rights, local autonomy, election and democracy

THE HISTORY OF THE AMENDMENT OF THE CONSTITUTION OF REPUBLIC INDONESIA 1. The Constitution of Republic Indonesia created constitutional structure that based on the highest authority at Supreme Consultative Assembly that practice people sovereignty. Therefore, the check and balances among the state organ doesn’t exist. 2. The Constitution granted larger authority to President of Republic Indonesia . The Constitution created executive heavy that the President dominated the authority that equipped with several constitutional rights called prerogative rights (such as clemency, restoration of rights, amnesty and dropping of charges and rehabilitation) and legislative authority to create Laws 3. The article in the 1945 Constitution has flexibilities article that creates multi interpretation, such as article 7 of the 1945 Constitution (before amendment)

4. 1945 Constitution granted too much authority to the President to govern important matters by Laws. President also has legislative authority therefore the President able to draft laws.. 5. The draft of 1945 Constitution has not been supported by proper relevant normative guideline about democratic, supremacy of law, nation empowerment, civilization, human rights principle and local autonomy. Such condition created improper state behavior that does not match to the Preamble of 1945 Constitution, such as:

No check and balances among state organ and all authority centralize to the President

Political Infrastructure that has been performed such as political party and civil society

Government holds the authority to perform the entire general election process as required to fulfill the democratization requisite.

Welfare State as stated at article 33 does not reach the objective, whereas monopoly and oligopoly has been well practiced

Consensus Among People Consultative Assembly Before Amendment the Constitution

Shall not amend the Preamble to the 1945 Constitution

Confirming the Unitary State of the Republic of Indonesia

Confirming the Presidential system;

Elucidations of the 1945 Constitution shall be eliminated and normative affairs in the elucidations shall be inserted into articles

Amendments shall be made by way of “addendum

AMMENDMENT THE CONSTITUTION 174 NEW POINTS (88%) 25 POINTS TAKEN FROM OLD CONSTITUTION (12%) 199 POINTS 199 POINTS 71 POINTS NEW OLD

1945 Constitutions BPK PRESIDENT DPR State Organ before the Amendment of 1945 Constitution

MPR : PEOPLE’S CONSULTATIVE ASSEMBLY

PRESIDENT

DPR : HOUSE OF REPRESENTATIVE

DPA : SUPREME ADVISORY COUNCIL

BPK : STATE AUDIT BOARD

MA : SUPREME COURT

MPR DPA MA

1945 Constitution MK BPK DPD MPR PRESIDENT DPR MA State Organ after the Amendment of 1945 Constitution

1. MPR: PEOPLE’S CONSULTATIVE ASSEMBLY

2. PRESIDENT

3. DPR : HOUSE OF REPRESENTATIVE

4. DPD : REGIONAL REPRESENTATIVE COUNCIL

5. BPK : STATE AUDIT BOARD

6. MA : SUPREME COURT

MK : CONSTITUTIONAL COURT

KY : Judicial Commission

KY

badan-badan lain yang fungsinya berkaitan dengan kekuasaan kehakiman KY 1945 Constitution PUSAT DAERAH TUN Militer Agama Umum Lingkungan Peradilan PEMDA PROVINSI DPRD KPD PEMDA KAB/KOTA DPRD KPD kpu bank sentral DPR DPD MPR PERWAKILAN BPK PROVINSI BPK MA MK TNI/POLRI dewan pertimbangan Kementerian Negara Presiden/ Wakil Presiden I I STATE ORGAN

HUMAN RIGHTS To establish a family and child protection from violence and discrimination ( Article 28B) ** To develop him/herself trough the fulfillment of basic needs , to get education and to benefit from science and technology (Pasal 28C) ** Free to choose and to practice the religion , to choose one’s citizenship , to choose one’s place of residence , free to associate , to assemble and to express opinions ( Article 28E) ** Right to communicate and to obtain information ( Article 28F) ** Recognition, guarantees, protection and certainty before a just law and equal treatment before the law , right to work and to receive fair treatment in employment, right to obtain equal opportunities in government ( Article 28D) ** Right to live in physical and spiritual prosperity , to obtain medical care , to receive facilitation ( Article 28H) ** Right not to be tried under a law with retrospective effect and to be free from discriminative treatment ( Article 28I) ** Every person shall have the duty to accept the restrictions established by law and respect of the rights and freedom of others ( Article 28J) ** To defend his/her life and existence ( Article 28A) ** Right to protection of his/her self , family, honour, dignity, and property, right to feel secure and free from torture ( Article 28G) ** I I I Human Rights in the 1945 Constitution of the Republic of Indonesia

Election Commission Structure National Election Commission Provincial Election Commission Provincial Election Commission Provincial Election Commission Regency / City Election Commission Regency / City Election Commission Regency / City Election Commission Regency / City Election Commission Regency / City Election Commission Regency / City Election Commission

Election Supervisory Committee National Election Supervisory Committee Provincial Election Supervisory Committee Provincial Election Supervisory Committee Provincial Election Supervisory Committee Regency / City Election Supervisory Committee Regency / City Election Supervisory Committee Regency / City Election Supervisory Committee Regency / City Election Supervisory Committee Regency / City Election Supervisory Committee Regency / City Election Supervisory Committee

The guardian of the Constitution;

The ultimate interpreter of the Constitution

Judicial control mechanism based on basic norm which stipulated at 1945 Constitution

Decision is the first, final and binding. No Appeal

Declaratoir, Erge omnes, Prospective

The Protector of Human Rights

THE FUNCTION OF CONSTITUTIONAL COURT

TO DECIDE A PETITION IN REVIEWING LAWS AGAINST THE CONSTITUTION

DETERMINING DISPUTES OVER THE AUTHORITIES OF STATE INSTITUTIONS WHOSE POWERS ARE GIVEN BY 1945 CONSTITUTION

DECIDING OVER THE DISSOLUTION OF A POLITICAL PARTY

DECIDING OVER ELECTION RESULT DISPUTE

TO ISSUE A DECISION OVER A PETITION CONCERNING ALLEGED VIOLATIONS BY THE PRESIDENTS AND/OR THE VICE-PRESIDENT

THE AUTHORITY OF CONSTITUTIONAL COURT

Article related to Election in 1945 Constitution

Chapter IX, Judiciary Body, Article 24C, regarding election result dispute mechanism

Chapter VIIB, General Election, Article 22E

Chapter III, The Executive Power, Article 6 and Article 7

Why there is an article concerning election and election result dispute in 1945 Constitution?

To assure the general election shall be conducted properly as deemed by 1945 Constitution due to the fact that during past experience general election has been used by authorities to confirming their authority

As the implementation of such article, Parliament create one package of Political Law which consist of

Law on Political Party

(Law 31/2002 Jo. Law 2/2008)

Law on General Election

(Law 12/2003 Jo. Law.. /2008)

Law on General Election of the President / Vice President

(Law 23/2003)

Political Parties in General Election

In 1955, 29 political parties

In 1977, 1982, 1987, 1992, 1997, 3 political parties

In 2009, ????

On March 31, 2008, 47 new political parties is waiting for verification process by Minister of Justice

Requirement for political parties to participate in 2004 General Election

Its existence is recognized under Law Number 31 of 2002 on Political Parties;

It has a complete board of administrators in at least 2/3 (two thirds) of the number of provinces;

It has a complete board of administrators in at least 2/3 (two thirds) of the number of regencies/cities in each of the provinces referred to in sub paragraph b;

It has a minimum number of 1000 (one thousand) persons or at least 1/1000 (one thousandth) of the number of residents as members in each board of administrators’ area as referred to in sub paragraph c, as substantiated by party membership cards;

The administrators as referred to in sub paragraph b and sub paragraph c must have permanent offices;

It has submitted the political party’s name and symbol.

Requirement for political parties to participate in 2009 General Election

Indonesian State Gazette stating that the party is registered as law legal entity ;

Official statement of the party’s central board regarding provincial and city party official;

Official letter of the party’s central board regarding the permanent address of the central board’s office, the provincial officials’ office and the city official’s office;

Official letter from the party’s central board regarding the minimal 30% women participation in the party as stated by the law;

State department’s letter regarding the registration of the party’s name, logo, and symbol;

Electoral Commission’s letter regarding seat acquirement at the House of Representatives at the national, provincial, and city level.

Election Process before Reformation

Election Organization conducted by Minister of interior

Election Supervisory Body member consist of existing government, representative of political parties and army

The authority of election supervisory body is to supervise election process and reported it to Election Organization

Election result dispute ?

Registration of voters in the Permanent Voters’ Registration

Invitation to vote on the D-day

Printing ballots

No witness at polling station

Implementation of election (D-Day)

Recapitulation of vote ballot count from lowest to the highest level

1999 General Election

Law Number 3/1999 on General Election creates independent Election Supervisory Commission

At the national, provincial and district levels were composed of judges, academics and members of the public.

To receive complaints about the electoral process, to serve as mediators in election disputes, and to report to the police or prosecuting authorities in cases where offences may have been committed against the law.

Election result dispute does not exist

Critique to Election Supervisory Commission

the manner in which the Commissions were to operate was not properly defined. Their role and authority was unclear, particularly in relation to which electoral management bodies were subject to their authority, and there was no detailed legal framework relating to their operations and their handling of complaints;

although the Commissions had wide powers, these were not well understood by participants in the electoral process, and these powers were never used because of fear of adverse reactions and an inability to enforce their decisions;

lines of authority were not clearly defined between the different levels of Commission, and between the Commissions, election administration bodies, the courts, and police;

administrative difficulties included inadequate funding, a lack of budget autonomy, and insufficient time to train members;

the police had complete discretion on whether and how to investigate any referrals from the Commissions about alleged violations of election law; and

the appointment of judges to the Commissions at the national, provincial and district levels compromised the role of the courts in hearing and deciding on cases of alleged violations of election law.

and the result ……….

Law 3/1999 did not provide Election Supervisory Commission with clear authority, specific procedures or adequate resources to perform complaint adjudication functions effectively.

Commission performed largely mediating and advisory functions in 1999 that helped but did not fully resolve complaints and disputes.

2004 General Election

Law 12/2003 on General Election

To supervise all stages of implementation of the election;

To accept reports related to violations of election laws;

To settle disputes arising from conduct of the election; and

To submit findings and unfinished reports to authorized institutions.

ELECTION DISPUTE Election Supervisory Body resolve through Reconciliation and arbitration dispute (not involving breach of law) arising from election process Election Supervisory Body shall receive violation from parties, observer and submit finding for further action to District Court / Prosecutor for election criminal violations Administrative Violation shall be settled by Election Commission In the event of a dispute about the result of the election, the Constitutional Court shall investigate and decide the matter as the first and final level of court

Common problem arise by Supervisory Commission

Voter Registration

Determination of Electoral District

Election Contestant Verification and Determination

Verification and Determination Candidates

Campaign Voting and Counting

11.147 violations has been reported

1.776 criminal violation forwarded to Police

876 administrative violation forwarded to KPU

It means:

Constitutional Court does not settle criminal election violations nor appellate forum for district court or election supervisory body

Constitutional Court only deal with election result dispute

COMPLAINT ADJUDICATION AND DISPUTE RESOLUTION

Election Supervisors – Panwas – have three roles

Supervise the election process

Accept reports relating to violations of the law from voters, observers or election contestants, and submit findings or inconclusive reports on these, for further action, to:

The KPU for administrative violations

Prosecutors/court system for criminal violations

Resolve, through conciliation or arbitration, disputes (not involving a breach of the law) arising from the election process

No power to make or enforce a decision where a breach of the law is involved – just refers case to competent body for action within defined time limits

Panwas is comprised of representatives of PolRI, Attorney General Officer, non governmental organization, academia, media, public figures, supported by secretariats

National Panwas – up to 9 members

Provincial and Regency/city Panwas – up to 7 members

Kecamatan Panwas – up to 5 members

Funded through the KPU’s budget

Election Result Dispute at Constitutional Court of Indonesia

WHO has Legal Standing

An Indonesian citizen competing in the general elections as candidate member to the Regional Representative Council

A President and Vice President candidate pair competing in the General elections for the Presidency and the Vice Presidency

A political party competing in the general elections for members of Parliament and Regional Parliament

WHO will stand as the defendant ?

An complain/petition maybe filed only to contest the determination of the results of the general elections conducted on a national scale by the National Election Commission (KPU)

National Election Commission (KPU) shall receive registered complaint no later than 3 business day after registration

WHEN should the complaint be filed?

An appeal may be filed only within a period of 3 times 24 hours (3 x 24) from the National Election Commission announcement of the determination of the results of the general elections nationally

Substance of complaint

A clear description of:

The allegedly erroneous vote count as announced by National Election Commission

The asserted correct vote count by the complainant

The request to annul the vote count result as announced by National Election Commission and to declare that the correct vote count is that asserted by complainant

Evidence

Certificate of vote count result;

Certificate of vote count recapitulation result at each stage of the counting

Other documents

Testimonial evidences

Manner of Filing

Personally, or

Via facsimile or e-mail provided that the Constitutional Court shall receive the original complaint within 3 days before the prescribed period for submission (3 x24) expires

Notice of Hearing

Notice of the scheduled hearing must be received by the Complainant and the National Election Commission not later than 3 days prior to the commencement of the hearing

Notice may be delivered by Court Bailiff, Letter, Telephone and Facsimile

Time Period to come up with Decision

The Constitutional Court should come up with a decision counted from the registration of the complaint with the Constitutional Court Register:

For disputes involving Presidential and Vice Presidential electoral results - No later than 14 business days;

For disputes involving Legislative (DPD, DPR, DPRD) electoral results - No later than 30 business days.

The Constitutional Court may declare

Dismissal of Complaint for failure to meet the necessary requirements (unclear and invalid);

Granting the complaint in the event it is meritorious/has legal bases and further declare annulled the vote count result as announced by the National Election Commission and determine the correct vote count result;

Dismissal of the complaint in the event that it lacks legal bases.

2004 Election – Parties

23 Political parties which consist of 266 cases

21 individual candidate for Regional Council

1 candidate for President / Vice President for first round

2004 Election – Cases Filed

Cases that can not be registered or filed exceeding time frame (3x24) is 183 cases

Registered cases is 287 cases

Total cases received by the Court is 470 Cases

Granted decision is 39 cases (13,5%)

From 30 Provinces and settled in 21 days

Seat Changes as Decision of the Constitutional Court

National Parliament = 4 seats

Provincial Parliament = 4 seats

Regency / City Parliament = 30 seats

Regional Representative Council = 1 seat

Other Dispute ?? Issuance of a criminal court decision declaring that a member of election commission has been guilty committing election criminal acts With the oath taking and inauguration of the elected public official, the regulatory regime of general election has been accomplished Decision of the Constitutional Court which have been legally binding and final and which have been executed and implemented Result Dispute Inauguration Court Verdict

Election Commission Committed general election criminal act?