JP/6/DENNY

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.