PHPU for Presidential Election Recommends Improvements to the Electoral System

The process of disputing the results of the 2024 general election for president and vice president (PHPU Pilpres) has been completed after the Constitutional Court (MK) read out decisions No. 1/PHPU.PRES-XXII/2024 and No. 2/PHPU.PRES-XXII/2024. The case filed by Anies Rasyid Baswedan-Muhaimin Iskandar and Ganjar Pranowo-Moch Mahfud MD, failed because none of the applicants’ arguments were granted by the Court.

Candidate candidate Anies-Muhaimin’s attorney, Bambang Widjojanto, said that in the PHPU decision, the three judges who expressed different opinions or dissenting opinions were writing the history of democratic civilization in Indonesia. He assessed that the dissenting opinion submitted supported several of the arguments put forward by the applicant. The three are Saldi Isra, Enny Nurbaningsih, and Arief Hidayat.

In his dissent, Saldi Isra stated that there was a need for re-voting in several areas where it was considered that there had been non-neutrality of the authorities and politicization of social assistance. Another judge, Enny, believes that there has been a lack of neutrality among officials involved in providing social assistance in several areas. Meanwhile, Arief Hidayat said there were allegations of strong intervention from the executive power in the 2024 presidential election.

“This is increasingly maturing the court; from one perspective, it must be seen as a positive thing because it can provide a different horizon of thought, and that difference is a blessing,” said Bambang Widjojanto in the Discussion on the PHPU Presidential Election Decision held by Padekha UGM (23/4).

Apart from that, he also highlighted that the legal process was not yet fully substantial. He considered that the Constitutional Court was too linked to the PHPU for the presidential election with vote acquisition, even though in the case of the PHPU for the regional election, the Constitutional Court had started to use substantive law that was not based on numbers. According to him, this shows the complexity of carrying out a fair and transparent election process.

The attorney for the Ganjar-Mahfud candidate pair, Annisa Ismail, also expressed the same opinion, assessing that the Constitutional Court was inconsistent in implementing substantive legal justice. So he said that in the PHPU process for the presidential election, the burden of proof was more on the applicant, even though the respondent was also a party involved in the election dispute. Meanwhile, according to him, the standard of proof desired by the Constitutional Court was also too impossible to achieve considering the limited number of witnesses and experts presented.

“So it is important to evaluate the legal and democratic process to ensure justice and the continuity of a healthy democracy,” said Annisa.

Meanwhile, Prabowo-Gibran’s attorney, Otto Hasibuan, said that the Constitutional Court had actually accommodated and accepted the request requested by candidate pairs 01 and 03, although the result still stated that the allegations were not legally proven. He assessed that the applicant’s lawsuit was not based on PHPU but on election fraud and administrative violations. Even formally, according to the election law, administrative violations are resolved through Bawaslu, not at the Constitutional Court.

“We must respect all the opinions of the Constitutional Court judges. In fact, the 2019 PHPU case was also decided in the same way,” said Otto.

Furthermore, according to Otto, legal certainty and beneficial justice can only be achieved if procedural law is implemented consistently. He also noted that procedural law in the Constitutional Court provides legal certainty, especially regarding procedural procedures. According to him, material law can be enforced well if procedural law is implemented consistently.

Responding to the results of the PHPU Presidential Election, Gadjah Mada University constitutional law expert Zainal Arifin Mochtar said that the PHPU Presidential Election procedural law needs a lot of improvement because it is not sufficient to complete electoral law enforcement. He highlighted that the time limit of 14 working days was considered not ideal for proving the arguments for the application, so only limited evidence and witnesses were presented.

“I think that is a fundamental weakness of the procedural law, which is not neat.” Including the proof process, if proof is something that is impossible to prove,” he said.

He also highlights the differences between formalistic and substantive approaches inconsistently. Zainal assessed that the judge’s approach to dissenting was more progressive because there was further explanation of the violation of the principles of morality. Through the dissenting opinion of the three judges, he noted that there was a need for many improvements to the electoral system, recapitulation, Bawaslu, and monitoring of presidential neutrality.

Apart from that, Zainal also emphasized the importance of the opposition. He views that in an electoral and democratic system that does not provide electoral incentives for the opposition, the offer to join the government is very easy to accept. In fact, according to him, more opposition parties will make democracy healthier and more alive.

“Let’s invite parties that want to be in the opposition to support them in the next regional and presidential elections,” he concluded.

The Executive Director of the Association for Elections and Democracy (Perludem), Khoirunnisa Nur Agustyati, views that the Constitutional Court always links decisions with the significance of vote acquisition and structured, systematic, and massive violations (TSM). He also emphasized the different opinions of the three judges as recommendations for further improvements to the electoral system, especially the supervision carried out by Bawaslu.

“The Constitutional Court said that Bawaslu was not strong enough to act on reports of election violations both before, during, and after the campaign period,” said Ninis.

Ninis was also reminded that the notes from the Constitutional Court must be implemented in the upcoming regional head election (Pilkada). The rules for managing the distribution of social assistance, the involvement of officials, and the practice of nepotism must be a concern for election organizers in the regional elections in November. []