Hope for Democracy on Justices’ Gavel

KOMPAS/WAWAN H PRABOWO

Zainal Arifin Mochtar

Upon analyzing the process to establish the Constitutional Court (MK), we will understand that it has always been intended to issue rulings on political disputes.

In the ongoing presidential election dispute, the MK is responding to a historic call as the authority in issuing legal rulings in political disputes. We all believe that bringing election disputes to the MK is dignified. Court sessions are held with the Prabowo Subianto camp as petitioners, the General Election Commission (KPU) as the petitionee and the Joko Widodo camp as a related party. This will come down to how the MK decides to handle the case.

It can be said that Prabowo camp’s petition is unusual and, consequently, has been much debated. For instance, the petition was revised from 34 pages to 147 pages, when petition revisions were not recognized by the MK Law and MK regulations. A fundamental question arises: which petition will be tried by the MK?

Furthermore, the petition mostly concerns debatable subjects related to the MK’s capacity in the construction of election law enforcement. This includes debates on the MK’s capacity in calculating votes or assessing election quality. Furthermore, several substances in the petition have separate corridors for resolution. Irregularities in the final voter list (DPT), for instance, should be resolved by the KPU. Backgrounds of presidential and VP candidates should also be assessed and verified by the KPU.

Regarding the use of state budget and finances for campaigns, this is actually an old issue. We understand that the state budget is deliberated and approved into law by both the President and the House of Representatives, with the Regional Representatives Council (DPD) involved to a certain extent. Implementing programs mandated by the state budget is part of government adherence to laws made and approved collectively. It is impossible for the government to not carry out its duties regarding disbursing social funds and civil servants’ salaries just because there is a presidential election on the agenda.

Judges’ quality

I am among those who refuse to believe that Prabowo camp’s petition is that simple. It seems too reckless to submit a petition that is so easily debatable from a legal perspective. However, on the other hand, this is what the Jokowi camp must worry about. As the petition talks about so many things at

once, it may pave the way for various argumentations and it may just hit the target on one or two substances. At this point, MK justices will face the test of legally resolving political disputes.

It is in this regard that we see two major issues in this dispute. With the map drawn clearly, we can see what ruling the justices will make. First, this concerns the justices’ knowledge, legal ideology and conviction. This is not a simple matter. At the US Supreme Court, for example, justices are divided into the conservative and liberal camps, in line with the country’s political division.

This is because the justices are political appointees, whose names are submitted by the president for the Senate’s confirmation. Republican presidents tend to appoint conservative justices at the Supreme Court, while Democratic Presidents usually appoint liberal justices.

Conservative justices are commonly more prone to applying judicial restraints. This means that they often restrain themselves and strictly adhere to prevailing laws and legal processes. Restrained justices are commonly stricter in the division of justices’ and law enforcement’s authorities, including in determining the extent of justices’ legal reach.

On the contrary, liberal justices are usually judicial activists. They are more daring in testing the boundaries of their legal reach and in venturing into the realms under the authority of other institutions. For instance, on the matter of judicial reviews, judicial activists are more daring in breaking traditions of the separation between the parliament as the positive legislature (law-making) and the judicial review authority as the negative legislature (law-annulling). Judges with activism tendency are often attempted to serve as positive legislature by adding to existing law, thereby serving as lawmakers. These judges are often seen as legislating from the bench.

In Indonesia, it is often difficult for us to determine which justices are restrained and which are activists. Among the nine MK justices, we can assess the positions of some of them from their writings and opinions. However, for the other justices, finding records of their past writings and opinions is not easy. Upon assessing their positions in past rulings, things can get confusing. One justice may issue an extremely restrained ruling at one time and an activist ruling at another. It is difficult to determine their exact positions.

Here lies our difficulty in determining their positions in the ongoing presidential election dispute. A restrained justice will be strict on technical prerequisites without any wish to intervene in the authority of other state bodies. This is different from activist justices, who may go against the grain and even intervene in the authority of other bodies. In the absence of a mapping of MK justices’ positions in the conservatism-liberalism spectrum, how can we assess their position in the presidential election dispute? This will determine whether the petition will be accepted (and followed up by court sessions) or rejected as it is deemed outside of the MK’s capacity.

Argumentation

Second, other than the justices’ stances, the quality of the petitioners’ argumentation will also determine the outcome of the presidential election dispute. Authenticity is important, namely the presence of authentic argumentations relevant to the alleged errors that will lead to a conclusion that those involved must be held legally accountable.

At this point, the strength of the argumentation is important. One example is the claim of lack of neutrality among state apparatuses, such as the National Police and State-Owned Enterprises. Most of these claims are backed by links of online news articles. Possibility of irrelevance is high when links of news articles are used. Such links are only proofs of journalistic coverage of the issue, without any certainty that it actually took place.

The links of news articles, in essence, are real evidence. Based on real evidence, the justices must dig deeper in court to get more evidence. These pieces evidence will strengthen the justices’ conviction whether or not the online news articles prove that the reported issue actually took place and whether or not it is relevant to the case at hand. Furthermore, the justices will also determine whether the related parties in the dispute must be held accountable or not.

Put simply, the links of news articles only show journalistic coverage of the issue. Whether it actually happened or not – that is the question. If it did happen, did it happen exactly as it was reported in the news? If so, who must be held responsible? Is it only those mentioned in the news, or will it involve those who gave the orders? There are so many questions here. This is why further investigation is necessary, including hearing witnesses’ statements and looking at detailed documents on the issue.

Proving that a systematic, structured and massive fraud has happened is similar. It is impossible to say that certain people are responsible based only on assumptions. We cannot be certain that, if one thing occurred at one place, it also occurred at other places. The law requires detailed explanations involving fundamental questions of what happens when and where, involving whom and what activities, along with other detailed questions. To prove that structured fraud has occurred, the argumentation must prove that all who are involved in the state structure have the similar goal of committing fraud under the central command of a person who was part of the presidential election.

Similar processes are also required to prove the systematic and massive parts of the allegation. There must be a valid argumentation that the fraud was arranged thoroughly and neatly with a massive implication numerically. The argument must also prove that the fraud affected the election voting process so significantly that it actually changed the result of the election. Such argumentation is awaited in the form of irrefutably convincing witnesses and documents.

Another issue is the burden of proof – must this be borne by the petitioner or must the petitionee also bear it? The principle of law states that the burden of proof lies with the party making the claim. To what extent will the MK be flexible with the law surely depends on the positions of the justices.

Our democracy will be determined by both the justices’ positions and the argumentation process. Our hope of democracy lies on the justices’ gavel and requires maturity in accepting whatever the ruling is once the gavel is struck.

Zainal Arifin Mochtar, Lecturer, School of Law, Gadjah Mada University