Thu, 25 Dec 2003

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 (, 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.