Constitutional Path

Every state that practices democracy definitively provides a constitutional path. In Syarah Konstitusi (On the Constitution), Masdar Farid Mas\'udi wrote that a constitution, as a basic law, is a general agreement (consensus) of citizens on grundnorm (basic norm) and grundgesetze (basic laws) of the state.

Therefore, the constitution is the highest rule that holds a preeminent position in realizing the main principles of the state. The constitution holds an extremely strategic position because every case concerning the state must turn to the constitution for interpreting in accordance with its terms. It can be imagined that if no constitution existed in a state to provide the rules of the game, a democratic state will surely descend into anarchy.

That is the essence of the constitutional path, which can be interpreted as the fundamental basis that governs the democratic practices of a state. Political and democratic consensus is the osmosis of reconciling shared values in developing the ideals of the state. In this context, democracy as a political system and its derivatives are regulated, such as in the implementation of electoral democracy.

And, if a dispute occurs in a democracy, for example an election dispute, all parties must turn to the constitution, with all its derivative regulations, so that democracy is upheld in accordance with its philosophy.

Therefore, democracy does not “provide space” for mass action (people power) as a way to overthrow a government that was established legitimately in accordance with the constitution. Mass movements are not prohibited in a democracy, but are facilitated as a freedom of expression through demonstrations and other activities for channeling the public’s aspirations and opinions. The constitution also guarantees the democratic rights of all citizens. Democracy also provides room for seeking constitutional justice that all parties can utilize to "fight" openly, honestly and fairly through legal channels, especially in seeking resolution through the Constitutional Court (MK).

That is the essence of the transfer of power in a democratic system. Democracy does not offer power transfers and/or regime changes through anarchy, but transfers power peacefully and regularly in a democratic process.

MK and the constitutional spirit

In developing our reforms, Indonesia has followed in the footsteps of several countries that have established a constitutional court system. The establishment of the Constitutional Court was a breakthrough in Indonesia’s political system that had never been seen before. The Constitutional Court is authorized, among other things, to interpret and rule on constitutional disputes, including disputes concerning general elections and presidential elections.

In this regard, the Constitutional Court exists to interpret and resolve legal cases according to the Constitution.

The birth of the Constitutional Court was expected to maintain the spirit of the 1945 Constitution in particular and maintain the public interest in general. Constitutional justice is one of the fundamental aspects that the court must uphold in ensuring that justice is served in every case. Constitutional justice reflects whether the state guarantees, honors and protects the basic rights of all citizens in the nation. In this regard, the Constitutional Court exists to interpret and resolve legal cases according to the Constitution.

In maintaining the spirit of electoral democracy in a similar case, the initial debate ahead of the 2004 election concerned who had the right to decide on disputes over the presidential election if the people directly elected their president and vice president. The decision fell on the Constitutional Court and not through the public court system, because the Constitutional Court\'s decision is final and binding. Through the Constitutional Court, "political" disputes over the elections can be resolved speedily in a judicial process that was not protracted.

Therefore, the Constitutional Court’s independence is staked in every decision it issues.

In addition to the temporal reasons that a dispute resolution must adhere to the electoral period, disputes over the presidential election are basically electoral as well as political. In order to prevent a chain reaction that would impact national politics, settling election disputes through the Constitutional Court is the most appropriate means. Even though the Constitutional Court is a relatively new institution in Indonesian governance, the Constitutional Court, as an independent institution, is expected to serve constitutional justice for all parties involved in an election dispute. Therefore, the Constitutional Court’s independence is staked in every decision it issues.

Since the consensus was unanimous that the authority to resolve disputes over the presidential elections belongs to the Constitutional Court, the political elite should obey the court. The political elite are the ones who "represent" millions of Indonesians in formulating the establishment of the Constitutional Court in the Amendments to the 1945 Constitution, including the issuance of Law No. 7/2017 on General Elections, which is further regulated through Constitutional Court Regulation No. 6/2018 on Guidelines for Preparing the Plaintiff\'s Requests, the Defendant\'s Response, Information from Related Parties and Information from the Elections Supervisory Agency (Bawaslu) in disputes over the legislative elections for the Regional Representatives Council (DPD), the House of Representatives (DPR) and Provincial/Regency Legislative Councils (DPRD), as well as the election for the president and vice president.

Learning from the Gore case

We still remember the dispute over the 2002 United States presidential election between George W. Bush (Republican) and Al Gore (Democrat). Bush won 271 electoral votes in 30 states, while Al Gore secured only 266 electoral votes in 20 states and in Washington, D.C. However, in terms of electability, Bush had lost to Gore because he only received 47.9 percent of the popular vote and Gore had won 48.9 percent. However, the winner of the US presidential election is determined by the electoral vote and not the popular vote.

The problem emerged in the state of Florida, which was a critical point because the e-voting machines could not read most of the votes that were cast. A dispute arose because if the unreadable votes belonged to Gore, Gore would most likely win in Florida and gain 25 electoral votes.

Gore then filed a petition with the US Supreme Court to request a manual recount. However, the court rejected Gore\'s request and decided that the winner of the presidential election was George W. Bush (Mubah, http://www.journal.unair.ac.id).

Indonesia’s political elite can learn from this case. First, Gore, who may have felt as the "disadvantaged" party still respected the Supreme Court\'s decision and accepted the decision legawa (without grudges).

Therefore, voters should not be constantly affected emotionally.

Second, supporters did not cause an uproar. The winner was not jumawa (arrogant) and neither did the loser demonstrate “angry” behavior. There was no political backbiting, let alone interference or mutual belittling. The two sides respected each other\'s political stance and accepted whatever the applicable court decided. Such is the situation we all hope for, that the political competition does not continue through "mock battles" that only consumes energy and emotions. The supporters of the two camps, presidential tickets No, 01 and No, 02, should not become embroiled in the "political game", because the presidential election is held every five years. We must remember that friends and opponents are never eternal in politics; only political interests are eternal. Therefore, voters should not be constantly affected emotionally.

Third, as a citizen, Gore supported US President George W. Bush even though he was part of the opposition. Prabowo Subianto demonstrated behavior like Gore’s when he failed as Megawati Soekarnoputri’s running mate in the 2009 presidential election and failed as a presidential candidate with running mate Hatta Rajasa in the 2014 presidential election. Prabowo\'s "silent" political behavior is expected to cool our democracy, as it did in the previous presidential election.

Hopefully such a conclusion will come to pass every five years in our electoral democracy, whoever the elite who is contesting, because power, in essence, must transfer. Therefore, the political elite should act properly and speak of "peace" in the media – and not make fun of and belittle each other – because it is from thence that the spirit of our constitution, which upholds our civilization, can be preserved and practiced.

Moch Nurhasim, Researcher, LIPI Center for Political Studies