Erroneous Ruling on Postponement of Elections

The Central Jakarta District Court handed down a ruling for the General Election Commission (KPU) to postpone the implementation of the elections for two years, four months and seven days.

The ruling No 757/Pdt.G/2022/PN. Jkt.Pst is related to the Prima Party lawsuit that is remarkable and difficult to understand legally. There are at least four fundamental errors in this ruling.

The first is competence. The Prima Party has brought similar issues to the Elections Supervisory Agency (Bawaslu) and the State Administrative Court (PTUN) before and all have been rejected. The Election Law clearly stipulates that election disputes must go through the Bawaslu and Administrative Court. Disputes in terms of the process, administration and results have different legal passageways. Disputes before voting, if related to the administrative processes, must be resolved at the Bawaslu. Meanwhile, if it is related to membership, it can be brought to the PTUN. The Prima Party had done this, and had been rejected.

It is an extraordinary case, because it was brought back to the district court. It is like trying anyway even if it is not the right way. In legal anthropology, this is known as "window shopping."

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Surprisingly, this window shopping was allowed by the judge. This act is seemingly fabricated. The ruling often quotes Law No 7/2017 concerning the Elections, but instead negates settlement provisions whose passageways are regulated in the Law by allowing the plaintiff to file a lawsuit through ways which are not justified according to the law. There is an impression that there is no complete understanding of the Election Laws.

The phenomenon of window shopping is not unique to this area. In many cases, lawyers and plaintiffs often take this trick to seek the various legal methods provided, even though these are not the paths that should be taken. Therefore, it is at this point where the strangeness lies. The Central Jakarta District Court indeed opened itself for this case, even though it is not the way for resolving election-related disputes.

It is true, a judge has independence and confidence in deciding a case, but that does not mean he can be acrobatic, regardless of statutory provisions, doctrine and legal theory. Not to mention the implications of the decision. Issues that have been decided by competent institutions seem to have been dismissed by this ruling. The question is, which ones are binding and must be implemented?

Second is the matter of the substance of the case. Suppose, for example, we are kind and think this is a justifiable use of judicial activism. Judicial activism is the tendency for judicial power to enter into the authority of other institutions.

It is true, a judge has independence and confidence in deciding a case, but that does not mean he can be acrobatic, regardless of statutory provisions, doctrine and legal theory.

However, do not forget that the nature of this trial is a civil case. Civil cases occur from relationships between individuals. It is true that there is the old concept of "unlawful acts by authorities," but it is still associated with losses committed by a public official and results in losses for the plaintiff.

In fact, this too has greatly diminished since the presence of the Administrative Court in 1986. MA Regulation No. 2/2019 also regulates and details this matter. Therefore, unlawful acts become much narrower because they are only associated with civil losses.

Well, here is where it gets interesting. This means that even if the court’s competence is considered acceptable, in the end it can only order the KPU to verify the Prima Party. This is directly related to the right of the Prima Party to participate in elections.

At this point, criticism must also be leveled at the Prima Party, which in its lawsuit has instead asked for a postponement of the elections for up to two years, six months and seven days, agreed upon by the Central Jakarta District Court. In fact, the request by the Prima Party is certainly not appropriate. However, this imprecision was justified and used as a basis for the decision by the three existing judges. Of course, this is the second error that is no less important.

The debate is extended to the question of what type of unlawful act is requested. Because, possibly, this is an unlawful act by the authorities, which in this decision does not lead to that.

When it comes to competence, the reason for judicial activism can still be used by judges with apologies, but this second type of mistake is truly fatal. It is hard to believe that a judge does not have substantive judicial skills for something as simple as this.

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Third, the fatal error that is still related to the substance of the case is whether it is possible that a civil decision that should restore the rights of the Prima Party will have very substantial consequences for public law, namely the implementation of elections and the rights that accompany them. For example, the rights of other parties participating in elections and the rights of voters.

As was the case with the second error, it is impossible for the judges to have overlooked this. How can the judges uphold the civil rights of the Prima Party by allowing violations of so many other rights of many other parties. Again, because decisions on civil regimes are very different in nature from public laws. It is hard to accept with common sense that for the sake of the Prima Party it is okay to violate the rights of many other parties.

Fourth, what is no less wrong is when it insists that this ruling must be implemented even at the risk of postponing the elections. With the ruling based on the basis of the lawsuit, the elections are delayed until mid-2025.

Supervising work

Indeed, this decision is not yet final as it still depends on the KPU, whether or not to appeal the case. However, if it is fixed, it will have implications for postponing the elections.

In fact, the elections cannot be postponed because they are closely related to the constitutional agenda and the filling of state positions in it, especially in a presidential system of government, namely the president and parliament. This includes the Regional Representative Council (DPD) and the Regional Legislative Council (DPRD). Matters related to these are regulated in the Constitution, which explicitly provides a term of office and a limitative time for holding elections.

Therefore, the judge's decision not only dismantles the Election Laws and the rigid electoral schedule that has been agreed upon by the government and the House of Representatives (DPR), but furthermore destroys the basic rule in the Constitution which states that elections must be held every five years, in accordance with the term of office of the government and parliament.

It becomes very unreasonable for the district court, which in this case is a civil court, to hand down a ruling which instead has the effect of postponing the elections whose domain is clear in the Constitution and laws. The basic teachings of constitutionalism emphasize that everyone must obey the constitution. This includes not only constitutional rules, but also values, one of which is the limitation of power. In other words, this ruling is misguided, extremely wrong and far-fetched.

Once again, it is hard to believe that judges do not understand the basic principles in court and civil cases which have become their daily affairs. There were suspicions that there might be something behind it. And it is for this reason that judicial oversight systems must work on this extraordinary verdict.

The Supreme Court (MA), however, still holds control over the judges under it. The Supreme Court must examine whether this really came from the judge's "logic and opinion" or whether it was due to other things.

This includes how the Supreme Court can ensure that further legal steps from this erroneous ruling can return the decision to the right track with the right concept. The judges of the High Court, when the KPU conducts an appeal, must put back the basic frameworks and basic conceptions, and not allow this extraordinary ruling to continue.

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Claims for the role of the MA also do not stop here. There must be concrete steps by the MA to limit the window-shopping phenomenon. The practice that has taken place is too banal at various levels and types of justice. It seems as if this case did not have a definite passageway and all methods were used for trial and error.

Instead of protecting the constitutional rights of the seekers of justice, it is very possible that this will turn into an involution of justice when there are too many open roads.

Even though there is always a fundamental debate as to how far the Judicial Commission (KY) can carry out an examination related to the substance of the decision, I think the judge's actions with this extraordinary decision have the potential to be intertwined and disrupt the honor, nobility, dignity and behavior of the judges. This is where the KY must return to work and demonstrate and uphold its constitutional mandate.

Don't let the election be postponed

The most important challenge is actually the commitment of all components of this nation in holding elections, including the KPU, the House and even the president. They have to ensure the elections take place. Their work so far in the efforts to ensure that elections are held is something that must be continued.

Elections are a shared agenda that requires a joint commitment. Do not allow the agenda of the transfer of power to become an agenda for certain political interests, which can damage the electoral agenda. We all have to oversee and make the elections successful, because election success is one of the conditions in completing the democratic transition from an authoritarian to a consolidated democracy.

KOMPAS/WAWAN H PRABOWO

Zainal Arifin Mochtar

Zainal Arifin Mochtar, Head of the Department of HTN FH UGM, Member of the Constitutional and Administrative Law Society (CALS)

This article was translated by Kurnia Siswo.