Clock watching and election complaints in Indonesia’s Constitutional Court

The clock is ticking on election complaints in Indonesia’s legislative elections. Last week, it was high drama in the normally staid corridors of the Constitutional Court (MK) as party lawyers rushed to file weighty documents about alleged infractions ahead of a tight deadline. Despite the spotlight on this process, we do not yet know how serious these disputes are. Are they a ticking political time bomb or just another part of the formulaic countdown of the festival of democracy?

The race began on Friday 9 May 2014 after the Indonesian Election Commission (KPU) announced the official result of the vote nine minutes before the midnight deadline prescribed by the law. With counting and recapitulation complete, a new deadline arose; dissatisfied contestants had 72 hours to lodge complaints with the MK.
By 23:51 PM on Monday 12 May, party and candidate representatives had lodged a total of 702 cases. Twelve national and two local parties made 672 separate complaints with a further 30 cases coming from candidates for the upper house (DPD). With 90 separate cases, Crescent Star Party (PBB) lodged the most complaints. It was followed by Democratic Party (PD) (80), Golkar (73), Hanura (71), Indonesian Justice and Unity Party (PKPI) (68), United Development Party (PPP) (54), National Awakening Party (PKB) (43), Prosperous Justice Party (PKS) (42), National Mandate Party (PAN) (42), Nasdem (42), Great Indonesia Movement Party (Gerindra) (40), and Indonesian Democracy Party of Struggle (PDI-P) (11). Among the local parties, Aceh National Party (PNA) had four cases and Aceh Peace Party (PDA) two complaints. Only Aceh Party (PA) did not lodge a single case, demonstrating, perhaps, that winners complain less than losers. The total number exceeds the 627 received by the court in 2009.

Back then, the court did not have sufficient time to properly hear and consider all the complaints. This will again be a challenge in 2014. In cases of vote buying, which were prominent in 2009, considerable time must be spent comparing the data provided by the KPU with that provided by the complainant. To do this properly, the authenticity of documents must be examined from individual polling booths and witnesses cross examined. With such an overwhelming workload and limited time, one concern is that this kind of painstaking examination is beyond the ability of the court to do when handling such a large number of cases.

After the initial applications were lodged last week, the court registrar gave the aggrieved parties another 72 hours to correct the administrative deficiencies in their cases. By Friday morning (16 May), the MK has posted the complete documents on its website. While nominally a transparent process, the documents were in large PDFs, some numbering more than 500 pages. Slow internet speeds make them hard to download. Another barrier is that they are optically scanned and not searchable. These factors all combine to slow down the analysis of complaints.

With more than 700 cases, in the next month judges, lawyers, and observers will be working long days with court hearings starting in the early morning, like we saw in 2009. This is not always a recipe for thoughtful decision making, considered hearings, or fair and transparent proceedings. This year, the first cases will be heard on Friday 23 May. The judges, divided into three panels equally covering the 33 provinces, will then have until 30 June to decide whether to proceed with each case, hear evidence, and hand down their verdicts. All its decisions will be published online, which is a good innovation for the legal system and pioneered by this court, which was established in 2004. It is a tight schedule for such a crucial part of the political process

It is possible decisions from the court could lead to the changes in the vote tallies announced by the KPU on 9 May and seat allocation on 14 May. KPU chairman Husni Kamil Manik said if the court orders it the commission would revise the makeup of the House of Representatives (DPR) or DPD. In theory, any changes to the composition of the DPR could affect which parties were eligible to nominate presidential candidates before the deadline of 20 May. In practice, with the vote spread between ten parties and coalitions gathering behind two presidential candidates these processes are running in parallel rather than sequentially. The timetable is so tightly prescribed by law and regulation and the logistics on such a large scale that there is no way that the presidential poll can wait for the MK to complete its deliberations by 30 June. While the court could still influence the final makeup for the DPR, any intervention it might make in adjudicating these complaints will not stop Indonesians going to the polls to choose a new leader on 9 July.

These cases are still important as they will underline the ongoing weaknesses in the electoral system and shed light on the most serious violations. Understanding these problems will set an agenda for future reform. A preliminary analysis of the thousands of pages of documents downloaded from the MK web site shows that complaints are clustered around some familiar issues such as variations in the numbers of votes recorded on the polling stations C1 forms and those noted by witnesses, vote buying that inflated and decreased votes cast, counting errors, and problems with election management such as denying voters the opportunity to cast a ballot. These problems are similar to those reported by election observers and parties after the 9 April legislative election.

In recent years, the Constitutional Court has had a pivotal role in shaping the electoral environment, including its 2009 decision to create an open list system of voting. It continues to play a key role in the setting in motion of future electoral reforms with its January 2014 ruling that legislative and presidential elections must now be held simultaneously in 2019.

Perludem has trained a team of thirteen observers to follow the MK’s three panels during the next month. This is part of a larger study being prepared on dispute resolution by the court, which used to be regarded as one of Indonesia’s most trusted institutions. This observation and analysis, which will look at the cases as well as the way they are handled, is important to increase future confidence in Indonesia’s electoral system and its institutions. Indonesians will be watching closely and expect judges to demonstrate clear reasoning and impartiality. This is especially important following the recent scandal surrounding the court itself. The arrest of former Chief Justice Akil Mochtar by the Anti-Corruption Commission (KPK) in September 2013 for taking massive bribes to settle local election cases did immeasurable damage to the court’s credibility.

While everyone’s attention will soon be consumed by the competition to be president, the decisions the Constitutional Court will make in adjudicating legislative election complaints have the ability to be politically explosive if made in haste or without impartial reasoning. It will be a complex challenge for the judges to get the balance right between fairness, speed and transparency. Indonesia’s voters will be watching them closely as they race against the clock.

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Veri Junaidi is the Deputy Director of Perkumpulan Untuk Pemilu dan Demokrasi (Perludem) and the author of Mahkamah Konstitusi Bukan Mahkamah Kalkulator (Themis Books 2012).

Jim Della-Giacoma is a Visiting Fellow at the Australian National University’s College of Asia and the Pacific, School of International, Political, and Strategic Studies in the Department of Political and Social Change.