Law enforcement on election fraud and violations

Law enforcement on election fraud and violations

Bivitri Susanti
Executive Director
of Center for
Indonesian Law &
Policy Studies
Jakarta

The 2004 general election is coming in the count of days. Will
the process fulfill the expectations of the people in bringing a
more democratic condition to Indonesia? There are political
analyses that answer such a question, but the process plays an
important role.

It does not only need a fair and just process, but also a
mechanism to solve the fraud and violations that occur during the
process. Without proper implementation of law, that is, impartial
and accountable processes for handling election cases, the result
of the election will be questioned. As a result, the legitimacy
of the legislature and the president will be weak and will result
in political instability.

Both the Election Law for the legislature (Law No. 12, 2002)
and Presidential Election Law (Law No. 23, 2003) provide two
chapters dealing with fraud and violations. There are some points
that need to be highlighted.

First, the entry point for the general election law
enforcement is the Election Supervisory Committee. The committee
has the task of supervising the process, receiving reports of
fraud and violations, settling disputes, and submitting findings
and reports that cannot be settled by the committee to other law
enforcement agencies as provided by the Laws.

Second, there are three types of cases anticipated by the
Laws, namely disputes, administrative violations and criminal
violations. Each of the three shall be handled by three different
agencies: the Election Supervisory Committee, General Elections
Commission, and state legal institutions (police, Attorney
Generals' Office, and the court).

Disputes between parties shall be settled by the Election
Supervisory Committee itself, by first proposing a dialog between
parties to reach a consensus. If the dialog fails to reach a
consensus, the committee recommends an alternative dispute
settlement. If the alternative dispute settlement fails to reach
an agreed settlement, the committee is given the authority to
decide on the case, the decision of which is final and binding.
At this point, the question is: Can the dissatisfied party
challenge the committee's decision with the State Administrative
Court?

As a supervisory body as well as an entry point of reports
from the public, the committee submits findings and reports
concerning administrative violations to the General Elections
Commission. Here, the questions are: Is the General Elections
Commission ready for such a procedure? Does it have a standard
operation procedure and well-prepared personnel? Can the
dissatisfied party challenge the commission's decision with the
State Administrative Court?

As for criminal violations, the court of justice is the agency
to make decisions. The task of the committee is only to submit
the findings and reports to the investigator, which in this case
is the police. Then, the attorney general and the court will
follow up the case accordingly.

Third, while the general election process is supervised in the
first instance by the General Elections Committee, disputes
regarding the result of the election will be handled by the newly
established Constitutional Court. Thus, it is important that the
Constitutional Court prepares the procedure.

Finally, the Laws provide a time limit for cases at each
stage. However, it should be noted that the Laws do not provide a
time limit for the General Elections Commission in handling cases
of administrative violations.

To prevent and to solve

If we are to talk about the integrity of the election, the
issue is, whether or not the law enforcement scheme fulfills two
main functions of the law: to prevent and to solve problems of
fraud and violations. Both functions need law enforcement
agencies with high professionalism and integrity. The readiness
of the institutions, procedures, and personnel are the issues in
this regard. The basic procedures and sanctions provided by the
Laws are important in the issues of prevention, but the two
factors may have no preventative effect if the subjects of the
law suppose that the enforcement will be weak.

Administration of justice for general election cases should
present a set of principles. First, the justice should be
delivered in a timely manner. This principle is even more
important for general election cases, because the political
process cannot be delayed as it will potentially create political
instability. Second, the impartiality of the law enforcement
agencies should be the highest priority as the cases are highly
political. Third, there should be a transparent process in every
stage of the procedure. Fourth, the law enforcement agencies
should be accountable to the public.

Efforts To Date

Some efforts have been made by the related agencies. The
Election Supervisory Commission has issued decisions regulating
technicalities of its duties and tasks. The decisions range from
a dispute settlement mechanism to guidelines for classifying
violations.

Further, on Oct. 29, 2003, the Election Supervisory Committee,
Attorney General's Office, and National Police signed a
Memorandum of Understanding (MOU) regarding special procedures
for general election law violations. The three agencies will
further transform the MOU into the Joint Agreement of the three
agencies.

In line with the initiative taken by the three agencies, on
Oct. 30, 2003, the chief justice stated that the Supreme Court
will issue a technical instruction to handle general election
cases in court. The chief justice said that he had established a
Steering Committee, of which he is the chair, with the task of
setting up instructions for a special court for general election
cases (hukumonline.com, Dec. 11, 2003). He revealed that the
cases might be tried before one judge instead of a panel of three
judges as applied in general cases. Although this is not in line
with the provision that all cases should be tried according to
the Law No. 8 of 1981 regarding Criminal Procedure, he believes
that the one judge trial has to be provided since the cases
should be settled in a limited time.

With regard to the Supreme Court's role, it should also issue
a regulation for courts confirming that decisions regarding
dispute settlement of the General Election Supervisory Committee
and decisions regarding administrative violations issued by
General Elections Commission cannot be challenged with the State
Administrative Court. Otherwise, the principle of the certainty
of law will not be achieved.

Efforts made to date appear to be appropriate to enforce the
law in a way that guards the integrity of the election. The task
now is to apply them accordingly and to prepare personnel with
high integrity to implement the laws and regulations in a
consistent and impartial manner. These are indeed the most
important tasks; and can be very problematic.