The Courts
Over the past week I have continued my research with the Constitutional Court. My article is near completion, and I am just adding data points and interview content as it becomes available. I have also begun to do some additional research on one of the issues that my article does not discuss in depth: the creation of a special judiciary body for the local election disputes. The current Indonesian Local Election Laws call for the national parliament to create a “special judiciary body” by 2024. This is even more significant, because in 2024 Indonesia will hold all local elections on the same day, setting up a synchronized Pilkada schedule. Previously, these local elections were scattered over five years. Starting in 2024, all of those elections will occur on the same day once every five years. This means that the election result challenges will also significantly increase in volume. The number of challenges already overworks the Constitutional Court. For example, the 171 local elections on June 27th have already resulted in 26 applications for a challenge before the Court. Remember, the Court only has 45 working days to rule on all applications it receives. The Court also ruled in 2013 that it should not have jurisdiction over these challenges. So, the creation of a special judicial body is extremely important based on principles of constitutionality and efficiency. With the synchronized elections in 2024, it is hard to imagine the Constitutional Court in its current capacity would be able to handle the new challenges based on sheer volume alone.
Although the Court’s ruling in 2013, the synchronization schedule, and the current legislation all make it clear that Indonesia needs a special judicial body to handle the local election disputes, there has been little to no initiative within the national government to create the body. One of the reasons for this lack of effort is because of the difficulty of the procedure to actually create a new judicial body. The Constitution and national statutes lay out a very strict set of guidelines for the judicial structure in Indonesia. To create a separate, autonomous Court to handle the local election disputes would require an amendment to the Constitution. To add a new court under the Constitutional Court or Supreme Court would require an amendment to both the local election laws and the national statutes governing the authorities of the courts. Either way requires a long legal process with the cooperation of the majority of the national government. This is highly unlikely considering that the political parties in control of the national government benefit from the current system and are therefore unlikely to push for any kind of systematic change. Once again, I must emphasize that the Constitutional Court decided that it is unconstitutional for the Court to have jurisdiction over the local election challenges in 2013; now it is 2018 and the national government still has made no real effort to correct this.
However, I believe there is a better way to handle these disputes and efficiency will be even more essential in 2024. If the national government established a special judicial body under the Supreme Court, at the same level as Indonesia’s Administrative Courts, then they would be able to avoid the strenuous process of a Constitutional Amendment. The national government would only have to amend national statutes, which is well within their power. This special judicial body could then be broken down regionally, like the administrative courts. If the special judicial body was broken down into West, Central, and East Indonesia, then one Court would not have to handle all of the election disputes arising from the 2024 synchronized elections. Instead, it would be divided amongst three. The regional breakdown would also allow the regional courts to have expertise over special provinces like Aceh, Yogyakarta, and Papua. These provinces have unique election laws to say the least. This suggestion is well within the authority of the national government, and it could actually be beneficial to the election process.
Even if the national government would create a special body, questions will still remain. How do the presiding judges get appointed? Or should they be elected? Also, if the country creates a special judicial body for the local elections, then it might make sense to give the election courts a consolidated authority. The local election disputes in question only deal with the election results, and the Supreme Court still deals with election crime separately. If it is a question of efficiency, then it would make sense for one, expert court to deal with both election procedure and results.