Anticipating presidential suits at Constitutional Court

Anticipating presidential suits at Constitutional Court

Denny Kailimang, Jakarta

With the Sept. 20 presidential runoff only a couple weeks
away, it is important for the candidates -- incumbent President
Megawati Soekarnoputri and her vice presidential candidate Hasyim
Muzadi, and Susilo Bambang Yudhoyono and running mate Jusuf Kalla
-- to learn from Golkar presidential candidate Wiranto's failed
lawsuit at the Constitutional Court.

If Megawati or Susilo intend to file a lawsuit with the
Constitutional Court after the runoff, they must make sure not to
repeat the mistakes of the Wiranto camp.

On Aug. 9, the Constitutional Court's dismissed Wiranto's suit
because he failed to prove the claim that he lost 5.4 million
votes in the July 5 presidential election.

Wiranto requested that the Constitutional Court, among other
things, annul the vote count as set forth in General Elections
Commission Decision No. 79/SK/KPU/2004. He also requested that
the Court credit him with 31,721,448 votes, about five million
more votes than the General Elections Commission's official
count.

The Court rejected the request, saying the plaintiff could not
provide solid evidence he had lost 5,434,660 votes. Wiranto had
no choice but to accept the ruling, which is final in nature.

In its ruling, the Constitutional Council stated it could not
accept any of the plaintiff's arguments to the effect that
Wiranto had lost votes in 26 provinces.

The court also stated that the majority of Wiranto's witnesses
at polling stations (TPS), the elections committee (PPS), the
district elections committee (PPK) and the general elections
commissions (KPU) at the regency/municipality level and at the
provincial level had failed to exercise their right to raise
objections. The Constitutional Court also failed to find, in
several provinces, discrepancies between the data that the
plaintiff possessed and that of the KPU.

The Wiranto case is interesting in a number of contexts.

First, the lodging of a complaint with the Constitutional
Court is a reflection that Indonesia is a law-based state. This
complaint reflects the rights of citizens to seek legal
certainty.

Second, the filing of this case is a reminder that all
participants in presidential elections should be more thorough in
observing Law No. 23 on presidential elections. A good
understanding or deep mastery of the substance of the law will
avoid conflicts or discrepancies. This means that candidates must
know the most important element in these elections is the
presence of witnesses at the TPS, PPS and PPK. If these witnesses
are present in all these places, there will be no great problems
arising after the elections.

The April 5 legislative election also left quite a big number
of disputes over vote turnout, either raised by political parties
or individuals running for the Regional Representative Council
(DPD). Most of the 258 cases filed with the Constitutional Court
generally were not supported by valid and accountable written
evidence. These complaints were merely based on someone's
observation or opinion. The Constitutional Court cannot hear
complaints with such weak evidence.

A closer observation will show that, first of all, most
participants in the legislative elections did not quite
understand the rules regarding the elections and vote counting.
That is why they failed to exercise their rights as mandated by
the elections law. Even if some of them exercised their rights,
they did not quite know how to exercise it properly. There is a
strong impression that general election participants devoted full
attention to their campaigns but did not quite pay attention to
the ballot process and vote counting at the ballot stations.

The next thing worth noting is that while most election
participants did indeed pay great attention to the vote counting
process, their witnesses failed to ensure they possessed all the
legal papers as required by the law. As a result, many witnesses
were not allowed to sign the certificates on the results of the
vote count.

It is not clear who is to blame for this mistake. However, the
chiefs of campaign teams should have give these witnesses their
papers. These papers would extend legal power to these witnesses,
for example, to sign the certificates on vote count results.

In this context, those running for president should pay more
attention to such matters, otherwise it will harm them in the
end.

It would be a good idea for the chiefs of the campaign teams
of Megawati and Susilo to heed such matter very early so they can
best minimize potential conflicts. It is now time for the two
camps to organize their witnesses and their networks so they can
make proper arrangements. It is also time for them to get a
thorough understanding of the election laws.

At this point, it is worth asking if the candidates have
enough people to serve as witnesses at polling stations across
the country. We know that there are a maximum of 300 voters at
each polling station.

Across the country there are 585,128 polling stations. A
really huge number of witnesses will be needed to cover all these
polling stations in the presidential election.

Obviously, it is very difficult to find so many people to
assign as witnesses to all these polling stations. So the
witnesses can be placed only at the subdistrict level. Subarticle
(6) of Article 59 of Law No. 23 requires the election committees
at the village and subdistrict levels to give one copy each of
the official report and the vote count certificate to the
witnesses assigned by the candidates and present during the
voting and vote counting process.

Regrettably, not enough attention was given to this matter in
the legislative election.

When witnesses are placed at polling stations and the
subdistricts, the presidential candidates will be informed of the
results of the vote much earlier. They will get this information
in less than five days or within a week at the latest. Their
witnesses at the polling stations and in subdistricts and
districts all over Indonesian will be the first to see the
results of the vote count. They can immediately report these
results to the their headquarters.

We hope the camps of Megawati and Susilo will thoroughly study
Law No. 23. A good understanding of the substance of the law will
be reflected in the ubiquitous presence of witnesses at polling
stations. If there are not enough witnesses to assign to every
polling station, just place them in every subdistrict. This will
best minimize the potential for conflict.

The writer is a lawyer.