JP/6/DENNY

Anticipating presidential lawsuit at constitutional court

Denny Kailimang

With the Sept. 20 presidential runoff is only is only a couple days ahead, it is important for the pairings of presidential candidates, the incumbent president Megawati Soekarnoputri and her pairing Hasyim Muzadi and the pairing of Gen. (ret) Susilo Bambang Yudhoyono and Jusuf Kallla to learn from the recent failure of Golkar's presidential candidate Gen. (ret) Wiranto- Solahuddin Wahid to win a lawsuit.

When one of the candidates or both of them intend to bring their case to Constitutional Court after the election, they must make sure not to repeat the loss of Wiranto's camp in their legal attempt.

On Aug. 9, the Constitional Court's turned down the lawsuit because Wiranto camp failed to prove its claim that it lost 5.4 million votes in the July 5 presidential election.

Wiranto-Solahuddin requested that the Constitutional Court, among other things, to annul the vote counting result regarding this pair as set forth in Decision of the General Elections Commission No. 79/SK/KPU/2004. They also requested that the Court to stipulate that the correct number of votes for them was 31,721,448, about 5 million higher than the KPU's offcial count.

The Court rejected the request, arguing that the plaintiff could not put forward a solid evidence that they had lost 5,434,660 votes. In response to this final ruling, which is final in nature, Solahuddin Wahid, Wiranto's camp accepted it.

In its ruling, the Constitutional Council stated, among other things, that it could not accept even a single argument that the plaintiff had brought forward to the effect that their vote turnout had been lowered or that they had lost votes in their favor in 26 provinces.

The court also stated that the majority of witnesses that this pair assigned at the 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 of raising their objection. The Constitutional Court also failed to find, in several provinces, discrepancies between the data that the plaintiff possesses and that of the KPU.

The case above is interesting to observe in a number of contexts.

First, among other things, the lodging of a complaint to 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 the presidential elections should be more thorough in observing Law No. 23. A good understanding or deep mastery of the substance of the law will avoid a conflict or a discrepancy in vote turnout. This means that the participants of the presidential and vice presidential elections must know in great detail that the most important element in these elections is the presence of witnesses at TPS, PPS and PPK. If these witnesses are present in all these places, there will be no difficult problems to arise after the elections.

The April 5 legislative election had 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 to the Constitutional Court generally were not supported by valid and accountable written evidence. The data on the ground was generally not solid. Some cases were based on inaccurate data. These complaints were merely based on someone's observation or opinion. The Constitutional Court can not hear these complaints because of this weak evidence.

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

The next thing worth observing is that while most elections participants did indeed pay great attention to the vote counting process, their witnesses failed to ensure that they possessed all legal papers as required by the law, for example, a written mandate. As a result many witnesses were not entitled to sign the certificate on the results of vote counting.

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

In this context, those running for the presidential and vice presidential elections should give their best attention to this matter as 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 this matter very early so that they can best minimize potentials for a conflict. For this, they must issue mandate papers to their witnesses. It is now time for the two camps to organize their witnesses and their networks so that they can make proper arrangements about this matter very early. It is also time now for them to have a thorough understanding of the rule of the game and the law on the elections.

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

Across the country there are 585,128 polling stations. A really huge number of witnesses will be needed for all these polling stations in the presidential and vice presidential elections.

Obviously, it is very difficult to find so many people to assign as witnesses in all these polling stations. Well, then the witnesses can be placed only at the sub-district level. Sub- article (6) of Article 59 Law No. 23 requires the election committee at the village and sub-district level to give one piece each of the copy of the official report and the certificate of recapitulation of vote counting performed at the election committee to the witnesses assigned by the candidates and present during the voting and vote counting process.

Regrettably, not enough proper attention was given to this matter in the previous legislative general elections.

When witnesses are placed at TPS and in the sub-districts, the presidential and vice-presidential candidates will be able to be informed of the result of the vote counting 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 sub-districts and districts all over Indonesian will be the first and the earliest to see the result of vote counting. They can immediately report this result to the their headquarters.

We hope the camps of Megawati and Susilo will thoroughly study the Law No. 23. A good understanding of the substance of the law will be reflected in the ubiquitous presence of witnesses in polling stations. If there are not enough witnesses to assign in every polling station, just place them in every sub-district. At least, this will best minimize the potentials for a conflict.