When a Dispute on Voting Results Should Not Continue to the Constitutional Court

There are some Bawaslu decisions that cannot be followed up by the KPU because the vote recapitulation stage has already ended.

KOMPAS/RONY ARIYANTO NUGROHO

The Constitutional Court judges listened to the petitioner's petitum reading during the hearing of the dispute over the results of the general election for the legislative election in panel room 3 of the Constitutional Court, Jakarta, on Thursday (2/5/2024).

Some cases of dispute over legislative election results have actually been proven and decided in trials of alleged administrative violations at the Election Supervisory Body. Unfortunately, some decisions cannot be followed up by the General Election Commission because the vote recapitulation stage has ended.

The situation is experienced by several political parties and legislative candidate who filed for a dispute over the election results of legislative members to the Constitutional Court. One of them is a candidate from the Nasdem Party in the electoral district (dapil) of Southeast Sulawesi, Ali Mazi. The former Governor of Southeast Sulawesi had to take a longer route to compete for one seat in the DPR which will be obtained by Nasdem from the dapil of Southeast Sulawesi.

Ali Mazi's lawyer, Heriyanto Citra Buana, when reading his petition during the legislative election dispute hearing on Thursday (2/5/2024) at the Constitutional Court building in Jakarta, stated that they found an increase in votes for Nasdem party's candidate number 2, Tina Nur Alam. The increase of 1,100 votes occurred during the recapitulation in the South Wangi-Wangi district, Wakatobi.

Also read: Recapitulation of Votes in Districts Prone to Fraud

As a result, Tina outperformed Ali Mazi in the vote count, giving her the chance to be reappointed as the elected candidate. Tina, who gained an additional 1,100 votes, received 68,683 votes, while Ali Mazi only obtained 68,093 votes.

KOMPAS/RONY ARIYANTO NUGROHO

The Chairman of KPU, Hasyim Asy'ari, became the respondent in the preliminary hearing of the presidential election dispute in the 2024 election at the Constitutional Court in Jakarta on Wednesday, March 27th, 2024.

Heriyanto said that the findings of the additional votes had been conveyed during the national level recapitulation at the General Election Commission. Chairman KPU Hasyim Asy'ari also asked the Nasdem witness, Dedy Ramanta, to write this in the objection form.

Hasyim also asked witnesses from Nasdem to convey their findings to Bawaslu so that they can be processed for alleged election violations through adjudication. Bawaslu's decision will later be used as a basis for correcting the vote results.

Also read: Invalid Ballots Used to Benefit Certain Legislative Candidates

Following the instructions, the Nasdem witness finally reported allegations of administrative violations to the Election Supervisory Agency (Bawaslu). In its ruling, Bawaslu confirmed the addition or inflation of votes for the candidate for DPR member named Tina by 1,100 votes. The General Election Commission (KPU) was declared to have officially and convincingly committed administrative violations and was given a reprimand sanction to not repeat the violations.

"Actually, Bawaslu should have already ordered the KPU to make corrections to the vote inflation. However, the correction of the party and candidate vote acquisition after the election results are announced is handed over to the MK," said Heriyanto.

KOMPAS/RONY ARIYANTO NUGROHO

The seat markers for the Election Supervisory Board as a related party in the legislative election dispute settlement panel 1 hearing at the Constitutional Court, Jakarta, on Monday (29/4/2024).

Bawaslu Chairman Rahmat Bagja acknowledged that the new decision will be issued on March 21, 2024, or one day after the KPU declares the election results. "So, we have already handed it over to the KPU, but because the results have been declared, it cannot be followed up," he said.

Also read: MK Values ​​Bawaslu Must Provide Benefits, So It Doesn't Threaten Judicial Elections

The same situation is experienced by DPRD Kota Palembang legislative candidate from the United Development Party, Rina Indah. Allegations of vote buying for Nasdem candidate, Andri Adam, and vote reduction for herself have been proven in the trial of administrative violations at the Elections Supervisory Agency in South Sumatra.

Rina should not have to file a dispute to the Constitutional Court if the administrative violation decision from the South Sumatra Bawaslu is followed up by the Palembang City KPU.

So, we have submitted it to the KPU, but because it has already been determined it cannot be followed up.

KOMPAS/PRADIPTA PANDU

Lecturer in Election Law at the University of Indonesia, Titi Anggraini

Electoral Law lecturer at the University of Indonesia, Titi Anggraini, stated that some of the administrative violation rulings by Bawaslu related to the administration of the stages of vote tallying in the election cannot be executed by KPU.

Also read: KPU denies accusations of not being serious about dealing with disputes at the Constitutional Court

Moreover, Titi added, if the Bawaslu's decision is announced after March 20, 2024. Because, after the national vote tally results are determined, the dispute shifts to become the subject of the election dispute settlement case, which is under the authority of the Constitutional Court.

"That is also to uphold the legal order and justice in the elections, to avoid overlapping authority and to provide legal certainty," he said.

KOMPAS/RONY ARIYANTO NUGROHO

The seats that were supposed to be occupied by the representatives of the General Election Commission were empty during the third panel hearing on legislative election disputes held at the Constitutional Court in Jakarta on Thursday (2/5/2024).

However, according to Titi, administrative election violation cases that have been decided by Bawaslu should be taken into consideration by the Constitutional Court in deciding election results disputes. Referring to the PHPU process for the 2024 Presidential Election and PHPU for the 2019 Legislative Election, Bawaslu's decision regarding the handling of election violations is a very crucial reference and consideration for the Constitutional Court in deciding on an application.

This is also to maintain the rule of law in enforcing electoral justice so that there is no overlap of authority and in order to provide legal certainty.

Even in the Presidential Election Dispute Resolution process in 2024, the Constitutional Court is inclined to agree with what has been decided by the Election Supervisory Board. Moreover, the Election Supervisory Board will also provide testimony in the Legislative Election Dispute Resolution hearing, which will certainly provide its own incentive for applicants' petitions to be granted.

Therefore, it is important for political parties and candidates to be able to summarize their petition with solid chronology and evidence. This is necessary in order to convince the Constitutional Court judges.

Also read: Final and binding, what are the various types of Constitutional Court decisions?

Because there is still a possibility that the Constitutional Court (MK) will ignore the decision or recommendation of the Election Supervisory Agency (Bawaslu). Just like in the 2020 Regional Elections, at that time there were several recommendations for disqualification of candidates that were actually ignored by the MK in deciding the election dispute case.

"Ultimately, it is the strength of the evidence and the ability to construct legal arguments by the petitioner that will determine the future of a case," said Titi.