Post-Election Report Number 2 – Electoral Complaints and Dispute Resolution Mechanisms
Limited Election Observation Mission
Contacts:
Sophie Khan – Jakarta: +62 813 102 06 100
Deborah Hakes – Atlanta: +1-404-420-5124
The Carter Center congratulates the government of Indonesia, the National Election Commission (KPU), the Election Supervisory Body (Bawaslu), and civil society groups for the ongoing commitment they have shown to establishing electoral complaints and dispute resolution mechanisms within the electoral system of Indonesia. Such mechanisms are important to protect the rights of citizens and to help determine whether elections are a genuine reflection of the will of the people. Indeed, for an election to be credible, it is essential that voters and election contestants have access to electoral dispute mechanisms that are independent, impartial, accessible, and effective[1]. To strengthen the dispute resolution structures, and make them more user-friendly and effective, however, Indonesia will need to take some key steps ahead of the next national elections.
The Carter Center deployed observers for a limited observation mission to Indonesia in advance of the April 9, 2009, legislative elections in which 38 national parties and six Aceh-based parties competed. Rather than assessing the overall electoral process, the limited mission is focusing on several key issues including campaign finance procedures, electoral dispute resolution (EDR) mechanisms, and the electoral process in Aceh. This is the second report by the mission; a report on campaign finance procedures was released on May 1, 2009.
The Carter Center's limited election observation mission to Indonesia found the following with regard to electoral dispute resolution mechanisms in the 2009 legislative election:
The following report 'Carter Center Assessment of Current Electoral Dispute Resolution Mechanisms and Recommendations for Future Improvement' includes a more detailed discussion of the issues summarized above.
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The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide. A not-for-profit, nongovernmental organization, the Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers to increase crop production. Visit: www.cartercenter.org to learn more about The Carter Center.
[1]United Nations Human Rights Committee (UNHRC), General Comment No. 31, Nature of the General Legal Obligations on States Parties to the Covenant, U.N. Doc CCPR/C/21/Rev.1/Add.13(2004); UNHRC, General Comment No. 32, Right to equality before courts and tribunals and to a fair trial, U.N. Doc CCPR/C/GC/32. See also UN General Assembly Resolution 55/96, Promoting and Consolidating Democracy, UN Doc A/RES/55/96; UN Commission on Human Rights Resolution, Interdependence between democracy and human rights, E/CN.4/RES/2003/36; UN Commission on Human Rights Resolution, Promotion of the Right to Democracy, E/CN.4/RES/1999/57; UN Commission on Human Rights, Resolution Promoting and Consolidating Democracy, UN Doc E/C.4/RES/2000/47.
Carter Center Assessment of Current Electoral Dispute Resolution Mechanisms and Recommendations for Future Improvement
A key component of an electoral system which is transparent and fair is the process for resolving electoral disputes. For this reason, electoral dispute resolution (EDR) has been a key area of focus for the Carter Center's limited observation mission for the April 9 legislative elections in Indonesia. This report provides the Center's main findings and recommendations in this regard. The Carter Center hopes that these findings and recommendations also may prove useful for the Presidential elections in July 2009. As with our May 1 post-election report on campaign finance procedures, this report on the regulatory framework for EDR and its application, and our recommendations for improvement in advance of the next national elections, is offered in a spirit of cooperation with the people and Government of Indonesia.
Mechanisms for administrative and criminal violations settlement and challenges to implementation
As specified in the 2008 General Elections Law,[1] there are two primary categories of electoral violations: administrative and criminal. Those who are eligible to file complaints are Indonesian citizens who have the right to vote, election observers, and electoral contestants.[2] Complaints can be made during each stage of the election process. According to electoral legislation, alleged violations should be reported to the Electoral Supervisory Body (Bawaslu) at the national level, to provincial and district Electoral Supervisory Bodies (Panwaslu) or to overseas election supervisors for voters abroad.[3] Oral or written reports must be given to Bawaslu at the appropriate level no later than three days after the incident takes place.[4] After reviewing the complaint, the Bawaslu or Panwaslu will determine whether the case is administrative or criminal in nature and then pass it on to either the KPU or the police for decision or investigation respectively.[5] The KPU must review and decide upon administrative cases within seven days of receipt of the complaint,[6] while the police have 14 days to investigate and take criminal cases to the district attorney's office should they have gathered sufficient evidence to do so[7]. The District Attorney must then submit the completed case file to the District Court within five days of receipt. In cases of alleged administrative violations, the KPU is responsible for making final determinations.
As of May 10, Bawaslu has documented 7347 cases nationally that the institution felt contained allegations of administrative violations. In only 3912 of these cases were there sufficient grounds to forward complaints to the KPU for a decision.
Alleged administrative violations recorded by the Bawaslu include, among others, cases of government officials being involved in a campaign, and inconsistencies within candidate lists. The bulk of cases filed in both administrative and criminal categories appear to be claims that parties were campaigning outside of the official campaign period. But there were also high numbers of alleged violations reported about the counting of ballots.
While the law provides a mechanism for addressing alleged administrative and criminal violations, it does not provide any recourse to a judicial body for review of KPU determinations of alleged administrative violations or KPU decisions involving citizens rights.[8] Though it is likely that such cases can be taken to state courts for resolution, the Elections Law does not specifically speak to the right of complainants to a hearing by a judicial body (rather than by the KPU alone) for administrative violations of rights. At least two complaints regarding alleged inconsistencies within the voter lists have been filed with the Central Jakarta District Court by civil society organizations on behalf of voters after the matter was not resolved by the KPU to the satisfaction of the complainants. These complaints, which seek to address the allegedly inadequate voter lists, have been directed against the KPU, the Ministry of Home Affairs and the President on the grounds that the elections were not conducted according to the law. Both cases are ongoing.
Out of a total of 2304 complaints containing allegations of criminal violations that were documented by the Bawaslu as of May 10, only 591 were forwarded for investigation by the police and only 170 were taken to court. Alleged criminal violations recorded in connection with the legislative elections have included the use of money to influence voters in ways not in accordance with the law; holding campaign rallies outside the scheduled dates; campaigning at schools, universities or places of worship; slashing posters; and the use of public resources in campaigning. In the lead-up to the election, more serious allegations of criminal violations – some of which were recorded directly by Center observers in Aceh – were also documented, including alleged assassinations, beatings, and the burning of homes.
According to the law it is the role of the police to collect evidence and prepare cases for submission to prosecutors. In practice, however, it seems that much of this is undertaken by Bawaslu staff. Bawaslu staff have told the Center that without Bawaslu follow-up, it is common for cases to remain unprocessed. For Bawaslu to effectively lead such investigative efforts, it is essential that adequate resources, both human and financial, be available to the body.
Bawaslu has reported that at the national level a high number of the cases submitted to the police for investigation have been rejected due to insufficient information. Recent observations in Aceh province indicate that in the instances where there is the will on the part of Panwaslu staff to follow up on a case and where all the evidentiary requirements are met within the strict time limits set by law, Panwaslu have sent case investigations to the police. However, the lack of coordination and follow-up between the institutions often means that the process falters. Carter Center observers in Aceh and Jakarta have also noted a concern of some stakeholders that the police have shown bias in determining whether and which cases are pursued. While the Center is not in a position to document the extent of this alleged bias, it is an issue which merits further examination.
An additional constraint on the process of settling criminal cases is that all such cases related to the results of the election must be concluded five days before the results are announced.[9]Rather than expediting such cases, this short deadline likely has the effect of further discouraging serious investigation and prosecution.
Limited role and late opening of Election Supervisory Body offices
The Elections Law does not give Bawaslu an electoral dispute resolution (EDR) role beyond issuing recommendations in cases of alleged administrative violations for the KPU and pre-analyzing and preparing cases to be referred to the police. The Bawaslu and Panwaslu are not empowered to ensure that cases are pursued by either the KPU or the police.
While Article 129 of the 2003 law provided three concrete steps for the resolution of disputes by election supervisors, the 2008 Elections Law foresees no rules or mechanisms for direct dispute resolution by the Bawaslu or Panwaslu. All cases received by the Bawaslu and Panwaslu are now categorized as either potential administrative or criminal violations and passed on to either the KPU or the police. Therefore the role of the Bawaslu or Panwaslu, even with regard to administration-related disputes which do not involve an alleged breach of the law, is simply to pass the case report along to the KPU with recommendations on follow-up.
In addition to an altered mandate as compared to the 2003 Elections Law,[10] the current law has decreased the number of members in the Bawaslu and Panwaslu structure. In 2003 the Bawaslu had nine members, both provincial and district level Panwaslu had seven, and the Panwaslu at the sub-district level had five members. These members were recruited from a diverse range of professions including the police, the attorney general's office, academia, the media and also included public figures.[11] In the 2007 Election Administration Law however the membership of each Election Supervisory Body was decreased significantly: Bawaslu consists only of five members and Panwaslu at the provincial, district and sub-district of only three.[12] Also of note in the 2007 law is the lack of specific requirements for recruiting from various fields. These changes represent a nearly fifty percent decrease in the numbers of managers for these offices which could have significantly affected the ability of the Bawaslu / Panwaslu to carry out their work effectively.
The late creation of provincial and district-level Panwaslu has been widely criticized as hampering the timely resolution of election disputes. According to Article 71 of the Law on Election Administration,[13] Panwaslu offices in the provinces should have been established no later than one month before the beginning of the first stage of the elections, which began with the update of the voter register on April 5, 2008. The original schedule had been for all provincial Panwaslu to be created at the same time. Since the first stage of the 2009 election process started in April 2008, the deadline for the establishment of Panwaslu should have been March 2008.
In practice, however, the schedule did not follow the law with Panwaslu offices established in a phased manner, reportedly due to a lack of funding at the time. On August 29, 2008 Panwaslu offices were established in only eight provinces. On September 28, all other provincial Panwaslu was established, except in Aceh, where a dispute with the provincial government over authority to choose Panwaslu members delayed its establishment until December 31, 2008. District-level Panwaslu were generally established one month after the provincial establishment (with the exception again in Aceh where the district Panwaslu was only established mid-February 2009).
As many cases occurred before the establishment of the bodies charged with receiving reports of violations and the resulting disputes, a significant number of complaints were not submitted and could not be resolved according to established deadlines. Weaknesses in the capacity of Panwaslu at district and sub-district levels, as well as late disbursal of funds, also played a role in the lack of effective local dispute resolution, as many Panwaslu members have no experience in preparing and investigating cases and often find it hard to prepare and make effective arguments as witnesses in court.[14] At the same time, Bawaslu is reluctant to significantly increase spending on training of regional Panwaslu members and staff, citing the temporary nature of Panwaslu operations and the high turnover of staff between elections.
Short timeframes and difficult reporting requirements for submission of cases
According to Article 247 of the Elections Law, allegations of administrative and criminal violations must be reported to Bawaslu or Panwaslu within three days of the incident. The violation reports submitted by informants to the Bawaslu or Panwaslu for both administrative and criminal cases must include the name and address of the informer; the name of perpetrator; the time and place of incident; and a description of the incident. As it is incumbent on the informant to provide data which is often difficult to collect, this three day deadline is too short.
The Bawaslu regulation on violation reporting specifies an additional requirement for the violation reports that is not foreseen in the 2008 law: the names and addresses of witnesses.[15] This appears to be residual from the 2003 Elections Law which did require the names and addresses of witnesses. Bawaslu staff members told The Carter Center that this information was not intended as a strict requirement for the reports, but rather that these details should be included if available. In practice when this information is not included in a violation report it appears to be grounds for the Panwaslu offices to dismiss a case. This additional information is often the most difficult for informants to produce because witnesses do not want to give their names out of fear of intimidation and, in cases where they may have received goods from campaign teams, concern that they will have to return these items. In many of the EDR cases that the Center has been tracking, reports have been dismissed by Panwaslu offices because they do not contain witness names and in some cases informants have told the Center that they did not pursue their cases because they were unable to provide this information. Considering that investigations of criminal violations should be conducted by the police, this requirement appears problematic.
Late promulgation of rules and regulations for dispute resolution and impacts on the process
The late promulgation of the Elections Law on March 31, 2008 affected the ability of the KPU properly plan and to draft the more than 50 regulations that were required based on the law. The Elections Law stipulated that various regulations must be produced regarding, amongst other things, the resolution of disputes and the code of ethics of electoral officials. However, many regulations were enacted too late in the electoral process to be effective. Regulation 44/2008 which provides guidelines on the resolution of administrative violations was signed on December 30 2008, meaning that in 2008, when significant electoral activities were on-going, there was no regulation in place. In addition, the new Code of Ethics was not in place for the first six months of the electoral process which began with the update of the voter register in April 2008; the Code of Ethics for KPU and Bawaslu / Panwaslu members was not signed until October 2008.
Constitutional Court
The Constitutional Court[16] provides another avenue for the resolution of electoral disputes but according to Article 24(c) of the Indonesian Constitution, the Law on the Constitutional Court and the Elections Law its mandate is limited to hearing cases regarding the results of the election. The Court is widely considered to be impartial and therefore, since its establishment in 2003, it has helped to resolve often politically-charged disputes on election results. The Court began receiving cases related to the 2009 legislative election results after their announcement by the KPU on May 9.
With nearly twice as many parties competing for seats in 2009 as compared to 2004, the Constitutional Court was prepared to hear up to 1000 cases. However, by the May 12 submission deadline a total of 595 cases, including 110 cases from Aceh, had been registered with the Court by 42 parties and 28 DPD candidates. Given the short timeframe between the announcement of the results and the deadline for registering challenges many political parties found it difficult to prepare the required twelve copies of the necessary documentation. The cases have been divided among three panels, each of which consists of three judges and ten law clerks. The panels will be responsible for a number of parties and provinces (for DPD cases). The Court can hold up to six sessions every day for each panel. Currently the Court is conducting preliminary examinations of cases and the process is being conducted in a very professional and transparent manner.
Most cases which will be heard by the panels are in relation to the movement of votes from one candidate to another ("bubbling") and the simple removal of votes from the tally of a candidate, but there are also many cases regarding alleged violations by the KPU with regard to the candidates' list. The Court has criticized the KPU for appearing to be unprepared for the trials. The Carter Center will report more fully on the Constitutional Court mechanism as part of its Final Mission Report but in anticipation of that the following brief observations are offered.
A 2008 decision by the Constitutional Court found Article 214 of the 2008 General Elections Law unconstitutional. Based on this ruling, the seats won by a party are now allocated to those of its candidates who win the most votes.[17] This decision, which in practice extended the meaning of "election contestants"' beyond political parties to include individual legislative candidates, has affected not only the electoral system, but also the broader legal framework for the electoral process because the changes implied by the ruling are at times inconsistently reflected in the law or other regulations.
According to KPU regulation number 15/2009, only the central party board at the national level and DPD candidates can register a case with the Constitutional Court[18]. This regulation, as well as the article in the 2003 Law on the Constitutional Court[19] upon which it is based, could be interpreted as being inconsistent with the 2008 Court decision. In order to promote certainty regarding the legal framework and the dispute resolution process, it is important that rules and regulations be harmonized with the decision of the Court before the next election.
In addition, the ruling of the Court has opened the door for internal party disputes on seat allocation but at this time the law on the Constitutional Court, the Elections Law, and the related regulations do not provide a mechanism to resolve conflicts of this kind. Though they are considered electoral contestants according to the Court decision, individual candidates cannot register an internal party dispute regarding the results with the Court unless they have approval from their party board. The Center has been told that this has become an issue for some candidates who have reported that as a result of deals made, often at the sub-district level, votes from one candidate "bubble up", or "penggelembungan" to another candidate within the same party at the sub-district level recapitulation of results. Indeed, candidates have complained to Center observers about such practices and have suggested that, as candidates, they should have a right to directly seek redress from the Constitutional Court. The Center has recorded and followed a number of cases at the local level, some of which are now finding their way to the Constitutional Court in Jakarta.
Recommendations
As indicated above, the Elections Law provides various means of resolving electoral complaints and disputes at each stage of the electoral calendar. Though The Carter Center recognizes that these mechanisms have the potential to play an important role in guaranteeing the credibility of the process, it notes some critical shortcomings that, if addressed ahead of the next national elections in 2014, could serve to enhance the efficiency and effectiveness of the system.
The Center recommends that this issue be addressed in the law ahead of the next national elections and that consideration be given to allowing candidates, as bonafide electoral contestants, the right to bring cases related to electoral results directly to the Court. Should such a change be made, it will be essential that the Court receives adequate resources to address a potentially high number of individual complaints.
The Center has deployed a limited observation mission to Indonesia since early March 2009. Six Carter Center observers monitored the pre-election period in various parts of Indonesia, including Aceh, and were joined by nine additional observers on election day. The Center will remain in Indonesia until the end of May and will release periodic reports detailing its findings on dispute resolution processes and other key issues. Because of the small size and limited scope of its presence, The Carter Center will not draw conclusions about the overall electoral process. The Carter Center will issue a final report on the limited observation mission to the April 9, 2009, legislative elections in Indonesia in the coming months.
The Carter Center conducts election observation in accordance with the Declaration of Principles of International Election Observation and Code of Conduct for International Election Observation adopted at the United Nations in 2005.
[1] Art. 248 and Art.252, Law 10/2008 "Concerning General Election for Member's or People's Representative Council, Regional Representatives Council, and Regional People's Representative Council" March 31, 2008.
[5] The Bawaslu may also determine that the complaint submitted does not warrant investigation based on insufficient evidence but they are still obliged to inform the complainants and to keep a record of the case.
[8] United Nations Human Rights Committee (UNHRC), General Comment No. 31, Nature of the General
Legal Obligations on States Parties to the Covenant, U.N. Doc CCPR/C/21/Rev.1/Add.13(2004);
UNHRC, General Comment No. 32, Right to equality before courts and tribunals and to a fair trial, U.N.
Doc CCPR/C/GC/32
[10] Law 12/2003 "Concerning General Election for Member's or People's Representative Council, Regional Representatives Council, and Regional People's Representative Council"
[14]Bawaslu noted that d trt putes by er has a mediation or dispute resolution role. compared with cases involving prominent politi in the preparation of two cases in East Java and North Tapanuli related to the gubernatorial and mayoral elections in 2008 the relevant Panwaslus did not have enough capacity to appropriately answer questions by the judges and lawyers in court and so the cases were transferred to the Constitutional Court. Information on these cases is available at http://www.mahkamahkonstitusi.go.id/eng/berita.php?newscode=2033 and http://www.mahkamahkonstitusi.go.id/eng/berita.php?newscode=2029.
[16] The Constitutional Court was established by Presidential Decree number 147/M/2003, August 15 and heard cases on election results beginning with election in 2004.
[19]Art. 74 of Law 24/2003 on The Constitutional Court; Art. 97, KPU Regulation number 15/2009 on the "Technical procedures for the announcement of the official results of the General Elections to determine seat distribution for elected legislative members"
[20]For cases in which the KPU is the accused party the mechanism could include a kind of 'Honorary Council' which is an existing mechanism that investigates alleged breaches of the Code of Ethics by KPU staff. To improve the level of independence of Council deliberations and decisions however the membership should consist of a majority of external members.
Read more about the Carter Center's work in Indonesia >>
April 12, 2009: Carter Center Congratulates Indonesia on Generally Peaceful Elections
March 25, 2009: Carter Center Launches Limited Election Observation Mission to Indonesia
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