Background
General elections, including regional head elections (Pemilukada), are the most legitimate democratic arena for converting the sovereignty of the people into political authority and governance by the institutions of a democratic state. Thus, the quality and depth of a country’s democracy are determined by the legality and integrity of its elections. Electoral disputes are inevitable in the elections of a democratic country; therefore, an electoral justice system is one of the mechanisms that must be provided to ensure electoral justice—regarding the legality of election administration, the administration of voting, the integrity of the electoral process, the enforcement of election laws, and the legitimacy of the voting results.
When it comes to adjudicating disputes over regional election results, Indonesia’s constitutional practices have exhibited serious inconsistencies over time. In 2004, pursuant to Law No. 32 of 2004, the authority to hear and decide regional election disputes rested with the Supreme Court, with proceedings conducted by the High Courts in each province. Not long after the Supreme Court assumed this role, through a constitutional review of the law at the Constitutional Court and subsequent amendments to Law No. 32 of 2004, the authority to adjudicate disputes over regional head election results (PHPUD) was transferred to the Constitutional Court. The Constitutional Court adjudicated regional election disputes from 2008 through 2013. Many breakthroughs were achieved, until eventually the Constitutional Court itself curtailed this authority after M. Akil Mochtar, the third Chief Justice of the Constitutional Court, was caught red-handed by the Corruption Eradication Commission (KPK) in a bribery case related to a regional election dispute. Through its ruling in Case No. 97/PUU-XI/2013—which reviewed Law No. 12 of 2008 concerning the Second Amendment to Law No. 32 of 2004 on Regional Government and Law No. 48 of 2009 on Judicial Power—the Constitutional Court ruled that PHPUD is not an exclusive jurisdiction of the Constitutional Court as stipulated in the 1945 Constitution of the Republic of Indonesia.
In parallel with the issuance of the Constitutional Court’s ruling that abolished the authority of the PHPUD, the President and the House of Representatives drafted the Regional Election Law in 2014. Law No. 1 of 2015 on the Ratification of the Government Regulation in Lieu of Law (Perppu) on Regional Elections transferred the authority to adjudicate PHPUD cases to the Supreme Court. However, the Supreme Court rejected this delegation of authority, and the authority was ultimately returned to the Constitutional Court through Law No. 8 of 2015 amending Law No. 1 of 2015. Although the Constitutional Court’s authority is temporary—pending the establishment of a specialized Election Court—the back-and-forth transfer of authority to adjudicate PHPUD cases has created several political and legal complications, including inconsistencies regarding the constitutionality of the authority to adjudicate PHPUD cases; and concerns about the Constitutional Court’s institutional and technical judicial capacity to adjudicate regional election disputes, which are scheduled to be held simultaneously on December 9.
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Report on Electoral Justice Challenges in Regional Election Litigation