The constitutional court’s paradigm of money politics needs to change

The Indonesian Constitutional Court (MK) and The Indonesian General Election Supervisory Agency (Bawaslu) have different indicators dealing with the violation in the pre-election that occur such as money politics, the missued of authority, the civil-servant neutrality issues, and the mismanagement of social funds. The constitutional court refers to how the practices of the violation influence the voter vote’s and the final of recapitulation. Meanwhile, Bawaslu considers proving money politics, for example, that it is sufficient to carry out efforts to provide or promise money.

Kahfi Adlan, the Researcher of the Jakarta-based Association for Elections and Democracy (Perludem), said that the differences in the handling of the issues should not happen if the Constitutional Court keep the general election and local election held in the direct, general, free, confidential and also the principles of honesty and fairness. “The Constitutional Court is should not see the statistic only, but where they come from,” said Kahfi in the online discussion titled “The Reflection of the Local Election Dispute 2020”, on Tuesday, April 6, 2021.

On the trial, of the 30 requests of the Election dispute settlement that were continued in the examination process, the Constitutional Court rejected at least 10 requests and granted 17 cases. Meanwhile, the 3 requests of the rest are still in the examination process at the Constitutional Court. The one in the case of local leaders election of Sabu Raijua District. Dozens of cases that registered the Constitutional Court trials were the results of the selection of hundreds of cases. Kahfi said, as many as 72 applications did not qualify the threshold, while 13 documents exceeded the deadline. The applications that were withdrawn were 6 files. From the consideration of the rejection of the election disputes, Perludem found that the Constitutional Court often demands things that are difficult for the petitioner to prove.

“The difficult thing that the petitioner needs to prove at court is the significance of its effect on vote acquisition. Courts often see, in fact, the petitioner won at one disputed polling station sample. So, it has negated the argument of the petition, especially violations in pre-election, especially the issue of money politics,” said Kahfi.

The discussion which was held by Perludem was also attended by members of Bawaslu’s Enforcement Division, Ratna Dewi Pettalolo; Professor of the Faculty of Law, University of Indonesia Topo Santoso; as well as other Perludem researchers, Fadli Ramadhanil.

One case being attention by Perludem, is the local election cases in East Kalimantan Kotabaru District. In the decision, the Constitutional Court stated that there were rigid restrictions on arguments beyond the results of the vote count. The limitation is not only about structured, systematic, and massive violations (TSM), but also the influence of the voting results of each candidate. Is means -according to Fadli- that the petitioner must be able to provide evidence of the money politics by the candidate or the campaign team,  which got influences the voters about their choice and maximize the vote gathered at recapitulation process. “it’s impossible because, in the other situation, we faced the confidential right of the voters’ principles” said Fadli.

Meanwhile, the other money politics cases in East Nusa Tenggara Belu District were rejected by the Constitutional Court, based its considerations on the decision of the regional supervisory body. The Belu District Bawaslu said that there was no criminal element in the distribution of grocery items by a foundation.

And it’s hard to believe -according to Perludem- that the Constitutional Court uses the claims of related parties to decide the alleged money politics case. “So the petitioner argued that a foundation that distributes groceries has an affiliation to win the related parties and the Constitutional Court seems convinced of this rebuttal,” he said.

Therefore, Perludem suggested that the Constitutional Court stopped demanding evidence that is too far away. In several cases, according to Fadli, it is enough to proofing the money politics by targeting a sum of money given to voters for a specific purpose. “The paradigm of law enforcement to money politics should be more courageous to then punish the perpetrators of giving money to voters. The Constitutional Court’s approach in the future needs to be somewhat more progressive because if you want to ensure that the money is given and then the voters are influenced by the giving of the money, right, it is impossible, “he added.

Ratna Dewi Pettalolo, a member of Bawaslu’s Enforcement Division, had the difficulty of proving money politics. Moreover, it must meet structured, systematic, and massive requirements.

Dewi stated, the most difficult to prove is the massive element. Because at least half of the number of areas that become polling stations must occur. Therefore, according to her, the fulfillment of the TSM elements needs to be reviewed. “If it does not meet the 50 percent requirement, if there has been money politics, yes, it is a crime. This is a problem in the examination process, so in the future, it is necessary to regulate that this element cannot be assessed cumulatively, but only one element is fulfilled, then it can be processed and then given a disqualification sanction, “said Dewi.

From the several findings or reports processed at Bawaslu, none of them led to a candidate pair. This is because the law does not regulate participation in money politics. “Aside from the pair of candidates, so many that are processed in the handling of violations related to money politics are not directly related to the pair of candidates, but ordinary people have arrived at the final court decision. This is indeed a weakness,” said Dewi. “said Dewi while hoping for a revision in the law.

So far, added Dewi, the Integrated Law Enforcement Center (Gakkumdu) has taken an approach towards formal acts, not material acts anymore. This means that the incident of giving money or promising money can fulfill the criminal requirement stipulated in the election law. “There have been attempts to do money politics until there is a final decision,” he said.

Meanwhile, Topo Santoso warned against the investigation of alleged money politics in the realm of crime. According to him, strong evidence (beyond a reasonable doubt) which can convince the existence of a criminal act cannot be ignored. “And it does not have to be related to the election results,” said Topo.

Meanwhile, money politics as an administrative violation resulted in the disqualification of candidates from the nomination by the General Election Commission (KPU) based on the Bawaslu report. “Here it is rather unique Because It as an administrative offense means that the level of evidence is lower than that of a criminal act. And Also, in my opinion, it does not have to Affect the election results, Because The most important thing is that the person who was brought forward as the perpetrator of an administrative violation has committed an administrative violation. So, if the TSM measure in disputes over the election results in the Constitutional Court, it is rather heavy, “he said.

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Binti Rosidah is one of more than 1.6 million Indonesians living and working in Malaysia. She has been working as a domestic worker in Kuala

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