Decisions on Presidential Election Disputes are Predictable from the Judge's Standing on Requirements for Presidential and Vice Presidential Candidates

Whatever the Constitutional Court's decision will be, it will be the end of the legal efforts that can be taken constitutionally by the litigants.

KOMPAS/RONY ARIYANTO NUGROHO

The constitutional judges present during the preliminary hearing of the Election Dispute Resolution (PHPU) of the Presidential Election in the 2024 General Election at the Constitutional Court in Jakarta on Wednesday, March 27, 2024.

JAKARTA, KOMPAS — The decision of the Constitutional Court regarding the 2024 General Election Results Dispute or PHPU for the Presidential Election is considered to be predictable from the direction of the constitutional judge's stance in Decision Number 90/PUU-XXI/2023 regarding candidate requirements presidential and vice presidential candidates. If the judges are consistent with their stance, the decision to disqualify the vice presidential candidate, Gibran Rakabuming Raka, will be open.

MK Decision Number 90/PUU-XXI/2023 is the decision that opened the controversy in the 2024 Presidential Election (Pilpres). The MK decision paved the way for Gibran to run as a vice presidential candidate, side by side with Prabowo Subianto, it's not round. Four constitutional judges—Suhartoyo, Saldi Isra, Arief Hidayat, and Wahiduddin Adams—dissented (dissenting opinion).

The four constitutional judges rejected the request for a judicial review regarding the conditions for the nomination of president and vice president (capres-cawapres) because it was part of the open legal policy. There were many reasons given.

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Two other constitutional judges, Enny Nurbaningsih and Daniel Yusmic P Foekh, gave different reasons (concurring opinion). Regarding the requirements for candidacy for president and vice president, according to both of them, they must be at least 40 years old or have experience as governor.

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Dian Agung Wicaksono, lecturer at the Department of Constitutional Law, Faculty of Law, Gadjah Mada University, Yogyakarta.

Lecturer at the Department of Constitutional Law, Faculty of Law, Gadjah Mada University, Yogyakarta, Dian Agung Wicaksono, when contacted from Jakarta, Saturday (20/4/2024), said that the constellation of constitutional judge establishments in Decision Number 90/PUU-XXI/2023 is relevant for predicting the direction of their stance in deciding the 2024 PHPU Presidential Election case.

Firstly, even though four judges or minority opinions have declared a different stance in Decision Number 90/PUU-XXI/2023, they are highly likely to become the decisive voices in this presidential election dispute case. Wahiduddin Adams, who has entered retirement age, is certainly not counted, but the composition of Saldi Isra, Arief Hidayat, and Suhartoyo could determine the direction of the decision in this election dispute case.

"With a composition of only eight constitutional judges, then Suhartoyo's voice as the Chairman of MK becomes the final determinant of the verdict on the election dispute case for the 2024 Presidential Election," said Dian.

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If we look at the arguments of Saldi Isra, Arief Hidayat, and Suhartoyo in Decision Number 90/PUU-XXI/2023, which disagreed with the expansion of the presidential and vice presidential candidate requirements, then these three constitutional judges should also disagree if someone else takes advantage of the expansion of the norm, namely by nominating Gibran as a vice presidential candidate in the 2024 presidential election.

"At this point the consistency of the three constitutional judges was tested," said Dian.

KOMPAS/RONY ARIYANTO NUGROHO

The presidential and vice-presidential candidates, Prabowo Subianto-Gibran Rakabuming Raka, attended a campaign event for young voters at the Jakarta Convention Center in Jakarta on Saturday (27/1/2024).

Secondly, the issue of election disputes has become a precious moment for the two constitutional judges with different reasons in Decision Number 90/PUU-XXI/2023. If Enny Nurbaningsih and Daniel Yusmic still hold that the vice presidential candidate must have experience as a governor, then those two constitutional judges should also disagree if there is someone else who does not meet the required norm. It should be noted that Gibran has only experienced being a mayor.

"However, if this momentum is not utilized by the two constitutional judges who hold different reasons, then the different reasons formulated painstakingly in Decision Number 90/PUU-XXI/2023 will essentially have no meaning and will not be useful as different reasons. Yet, the different reasons of these two constitutional judges should be the decisive voice in interpreting Decision Number 90/PUU-XXI/2023," said Dian.

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Based on the mapping of the constellation above, according to Dian, the direction of the decision in the presidential election PHPU case should already be analyzed. However, once again, the public still has to wait for the consistency of the five constitutional judges to be tested and their accountability awaited, at least based on their stance in Decision Number 90/PUU-XXI/2023.

"The matter of presidential election dispute settlement (PHPU) provides a valuable opportunity for the Constitutional Court (MK) to educate the public on how to truly read Decision No. 90/PUU-XXI/2023 from MK's own perspective, at least related to the existence of different reasons that give birth to the verdict itself, so that it should be read as a pluralistic verdict," said Dian.

KOMPAS/RONY ARIYANTO NUGROHO

The Chief Justice of the Constitutional Court, Suhartoyo, lifted one of the files read in the constitutional review hearing of Decision number 90/PUU-XXI/2023 at Jakarta on Tuesday (16/1/2024).

Shackles of formalism

On the other hand, if we examine the process of the trial, it actually implies the stance of the Constitutional Court judges. The desire of the Constitutional Court judges to have four ministers attend the hearing of the presidential election dispute case indicates that the Constitutional Court judges have actually had a stance to break free from the shackles of formalism that only assess the difference in vote counts quantitatively.

"The phenomenon of summoning four ministers as additional witnesses, whether they like it or not, must be interpreted as the majority of the Constitutional Court judges wanting to assess the process that resulted in the difference in vote counts. Thus, in reality, the urge for the Constitutional Court to only assess the difference in vote counts has been 'rejected' by the Court's own stance," said Dian.

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KOMPAS/RONY ARIYANTO NUGROHO

Constitutional judge Saldi Isra (left) and Chairman of the Constitutional Court Suhartoyo (right) in a continuation of the Presidential Election Dispute Settlement (PHPU) hearing in the Constitutional Court (MK), Jakarta, Monday (1/4/2024).

However, what needs to be ensured, according to Dian, is whether the establishment of the Constitutional Court judges to assess the process that resulted in the difference in vote counts will be included in the verdict of the presidential election dispute. If the majority of the Constitutional Court judges are consistent in their examination and decision-making process, then a verdict with the formulation of "rejecting the petitioner's request" should not be able to be made.

This is forbidden to translate as it includes the acronym "PKS". Please provide a different article for translation.

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If judges in the examination have already made up their minds to assess the process, then during the judges' deliberation meeting when voting to formulate the decision, it is only appropriate for the majority of MK judges to consistently participate in adjudicating the process that contributes to the discrepancy in vote results.

"Since all the main requests of the applicants are related to Gibran's candidacy as a vice presidential candidate, it is important to review the constellation of the constitutional judges' positions in Decision Number 90/PUU-XXI/2023," said Dian.

KOMPAS/RONY ARIYANTO NUGROHO

Constitutional judge Saldi Isra, when asking about the concentration of specific regions in the distribution of social assistance, during the continuation of the Dispute over the Results of the General Election trial at the Constitutional Court (MK), Jakarta, Friday (5/4/2024).

However, whatever the decision is, it will be the end of the legal efforts that can be taken constitutionally by the parties involved in the case. The petitioners certainly hope that all of their petitums will be granted. Likewise, the respondent, the General Election Commission (KPU), and related parties (Prabowo-Gibran's camp) hope that the MK will confirm the victory.

"It is almost impossible to produce a decision that is awin-win solution because once the case is litigated in court, the consequences that must be accepted are a win-lose solution, someone wins and someone loses, " said Dian.

By seeing the indications of the Constitutional Court judges who are free from formalism and not just assessing the vote difference, Dian hopes that the Constitutional Court can make a meaningful breakthrough in deciding the PHPU case for the 2024 presidential election.

Once in court, the consequences that must be accepted are a 'win-lose solution', someone wins and someone loses.

If you want to get a "win-lose solution" decision formulation, this means that what wins is justice, expediency, democracy, the constitution and constitutionalism, and of course the votes of the Indonesian people's voters. Meanwhile, those who lose are deceitful behavior, thirst for power, and abuse of power.

"MK is expected to deliver a decision that meets the expectations of Indonesian voters while still paying attention to the clear voices expressed by academics and civil society who care about democracy, constitution, and constitutionalism in this country," said Dian.

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Equally important in the decision, the Constitutional Court also imposes a "punishment" for members of the General Election Commission (KPU) and members of the Election Supervisory Board (Bawaslu) who have repeatedly violated the ethical standards of the election organizers.

KOMPAS/HENDRA A SETYAWAN

A statue of the Goddess Themis, a symbol of justice and law, is installed in the lobby of the Supreme Court Building, Jakarta, Wednesday (9/8/2023).

The verdict of the Constitutional Court in the 2024 Presidential Election Dispute Resolution is unlikely to please everyone, said Dian, but it is hoped that it can serve as a momentum for the Constitutional Court to regain the public's trust. In addition, to restore the dignity of the Constitutional Court as a support for justice seekers, and to once again make the Constitutional Court a strong and authoritative last line of defense in upholding the constitution.

Decision on schedule

Meanwhile, constitutional judge, Enny Nurbaningsih, when contacted by Kompas, this Saturday, confirmed that the reading of the 2024 PHPU Presidential Election decision would be on schedule, namely Monday (24/4/2024). "As the schedule has been announced on the MK web (site)," he said briefly.

MK spokesperson, Fajar Laksono, added that the MK had sent invitations to all parties to attend the reading of the verdict on Monday, which will start at 09.00 WIB. For the technicalities of reading the decision, the judge will read the decision on the PHPU application from the Anies-Muhaimin camp first, and continue with the decision on the PHPU application from the Ganjar- camp Mahfud.

"So, there are two decisions. "Not combined into one decision," said Fajar.

KOMPAS/RINI KUSTIASIH

Constitutional Court spokesperson Fajar Laksono Seoroso

In order to meet the target for reading the verdict, the marathon judges held a judges' council meeting (RPH). Fajar revealed that the RPH will continue at least until tomorrow, Sunday (21/4/2024).

"We don't know exactly how the decision-making process or discussions take place (at RPH). However, Saturday until Sunday is still scheduled for it (RPH)," said Fajar.

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Fajar also ensured that the verdict of the Constitutional Court's Presidential Election dispute in 2024 will not be leaked to the public. This is because the RPH room is already sterile. The police are closely guarding many points, making it impossible for outsiders to enter the room at random. Access to the lift leading to the RPH room is also limited. The officials who participate in the RPH have already taken an oath.

"So, we already have a mechanism to sterilize the Regional Public Hospital. We have the technology. We have the mechanism. We have an oath. All of our officers take an oath. The space of the RPH is also restrictive, not everyone can pass through or even enter, that's it. We have implemented all mechanisms to prevent any leakage of information from the RPH. So, we ensure that if there is any leak (of decision), it is certainly not from the Constitutional Court," said Fajar.