Waiting for Constitutional Court Judges to Become "Funnels" of Justice

"This means that the Constitutional Court judges do not just act as mouthpieces for the law, but of course as the guardians of the constitution. The Constitutional Court must defend the constitution. "Even if the sky falls, the constitution must remain upright," said Sulistyowati.

In the discussion, Sulistyowati mentioned MK's decision which changed the requirements for presidential and vice presidential nominations. This decision paves the way for President Joko Widodo's eldest son, Gibran Rakabuming Raka, to run as vice presidential candidate in the 2024 presidential election, alongside presidential candidate Prabowo Subianto.

Even if the sky falls, the constitution must remain upright.

Based on the recapitulation results of the General Election Commission (KPU), Prabowo-Gibran was determined to be the presidential candidate who won the most votes in the 2024 presidential election, with 58.58 percent of the national valid votes. Then, followed by the pair Anies Baswedan-Muhaimin Iskandar at 24.95 percent and Ganjar Pranowo-Mahfud MD at 16.47 percent.

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Based on the KPU's recapitulation, the Anies-Muhaimin and Ganjar-Mahfud camps filed a lawsuit to the Constitutional Court. In their petitum, they submitted at least two requests to the judges. First, to disqualify Gibran. Second, to hold a new round without involving the Prabowo-Gibran pair.

The trial process has been ongoing since the end of March 2024 and has now entered the stage of judges' deliberation meetings (RPH). The verdict on the 2024 Presidential Election Dispute case, as planned, will be read by the judges on April 22nd.

Restore trust

Sulistyowati continued, through the 2024 Presidential Election dispute, judges are being tested in how far they can uphold the principles of direct, universal, free, secret, honest, and fair (Luber Jurdil) elections as stated in Article 22E of the 1945 constitution.

On the other hand, the Constitutional Court's decision will also test the foundations of the Indonesian legal state, including democracy, human rights, and monitoring mechanisms for the separation of powers which are not only limited to the trias politica, but also all institutions that have been established since reform.

The Constitutional Court, with its enormous authority, can rule out all kinds of legal products that conflict with the election principles in the constitution.

"Meaning, we are testing whether we are still a country under the rule of law or not through this case. The Constitutional Court, with such great authority, can set aside all kinds of laws that contradict the principles of elections in the constitution. Therefore, procedural, formal, and substantive products under the constitution that do not comply with the constitutional order must be set aside," he said.

Sulistyowati argues that there is a paradigmatic problem in the trial of the dispute over the 2024 Presidential Election results, as the legal approach used is based solely on positivism. This means that the law is only positioned as a fact in the form of orders and decisions. However, another approach is also needed, namely the substantive justice paradigm that can be accommodated through interdisciplinary approaches.

"So, the challenge is that we need Constitutional Court judges who, with their authority, only one level below God, all hopes for substantive justice, not just doctrinal justice, are on their shoulders. Therefore, judges must study the law in a more holistic way,” he said.

So, the challenge is that we need Constitutional Court judges who, with their authority just below that of God, hold all hopes for substantive justice, not just doctrinal justice, on their shoulders.

Sulistyowati added that Indonesia must continue to move forward after the election, and the sustainability of the country will be determined by its ability to rectify past mistakes, including the controversial decision by the Constitutional Court. "Therefore, our hope is that through the upcoming decision, we can restore trust and integrity in state institutions," she stated.

Funnel of justice

Constitutional Law Lecturer at Andalas University, Padang, Feri Amsari, believes that the Constitutional Court (MK) must be held accountable for the series of fraud that occurred during the 2024 Presidential Election process. This is because everything started from the MK decision to change the requirements for presidential and vice presidential candidates, which paved the way for Gibran's candidacy.

"The decision has resulted in a bad habit in our elections, which is a structured, systematic, and massive (TSM) cheating. For me, the Constitutional Court (MK) is now at a crossroads. If the MK upholds our constitution properly, our democracy has the potential to continue to improve. However, if the MK hammers down the gavel of justice in this case, we will enter darkness in upholding democracy because everything has now been engineered," said Feri.

However, Feri believes that MK judges are not mere mouthpieces of the law, but rather they are mouthpieces of justice. Therefore, judges should not only refer to statutory regulations, but they must also reach substantive justice.

"There is no such thing in the process of organizing elections that the rules of the game change while the match is in progress only for the red carpet for the president's child. The rules were changed by the Constitutional Court, of which one of its judges is Gibran's uncle. So it is strange if the court does not question the fair electoral process in such a situation," said Feri.

He also hopes that the judges are not worried about the assumption that the Constitutional Court judges are not authorized to decide on structured, systematic, and massive fraud related to the election dispute results being cancelled. Because, he once found a precedent in the Constitutional Court's own decision in 2008, specifically Number 41/PHPU.D-VI/2008. The Constitutional Court, which at that time was chaired by Mahfud MD, considered that there were violations that were contrary to the constitution in the East Java Governor Election for the 2008-2013 period, so the vote determination by the local KPU at that time was cancelled.

Based on that, according to Feri, the Constitutional Court judge can make a progressive decision similar to that. "If the court says it is not authorized to prosecute the TSM fraud in the 2024 Presidential Election dispute, what is the court's accountability for the previous ruling? There is no prohibition for the Constitutional Court to apply the TSM concept that they have created themselves," he said.

Possible verdict

If the judges dare, they must be able to prove the fraud and its influence on Prabowo-Gibran's votes.

Despite that, Feri is trying to guess the judge's decision later. Firstly, he is pessimistic that the Constitutional Court will disqualify Gibran. Because, out of the eight judges of the Constitutional Court, some of them were appointed on the President's recommendation. Moreover, if the Constitutional Court has to disqualify Gibran, it means that Prabowo's candidacy is also eliminated. Because, they are one entity.

Next, Feri also doubts that the Constitutional Court judges have the courage to decide that there was fraud in the 2024 Presidential Election. Even if the judges are brave enough, they must be able to prove the fraud and its influence on the votes for Prabowo-Gibran. "If the Constitutional Court decides that, they must explain the calculation," he said.

Professor of Law at Brawijaya University, Malang, Achmad Sodiki, agrees with Feri's perspective. He hopes that judges can be more progressive in deciding the presidential election dispute this time. The decision is expected not only to address the issue of disputed election results, but also to what extent the principles of fair and just legal proceedings are applied in the 2024 presidential election process.

"We will see later, whether the judge bases their decision on the provisions of the law or the constitution that are alive in the community, so that the decision is more progressive. I hope the court does not turn a blind eye. We must look at the living constitution. Judges are not mere mouthpieces of the law," said Sodiki.

Sodiki also estimates a number of possible decisions that the judges will make. First, if the applicant's demands are granted, the judges must be convinced and able to prove where structured, systematic, and massive fraud occurred, whether it was throughout the region or only in certain areas.

"If there is indeed a judge's conviction that there has been tampering in one region, no matter how small, it must be repeated. Thus, the court is not only looking at the quantity or percentage of what will be obtained, but also looking from the other perspective," said Sodiki.

The second possibility is a improvement on the Constitutional Court's decision that changed the requirements for presidential and vice-presidential candidates. However, he is somewhat doubtful that this decision will be made by the judges. "Because, is it still possible to test the article on the issue of the vice president's age with other articles in the constitution? If that is still possible, then it might be tested again," he said.

Also read: The People's Court Becomes an Alternative When Election Justice Faces a Dead End

The former Constitutional Court judge then touched on the possibility of improving past or ongoing verdicts, including the requirement for running for regional head positions. Initially, the judge ruled that former convicts can run for regional head positions, thus there are no limitations regarding past criminal threats or suspension periods.

However, after that, the Constitutional Court made a new decision that former prisoners can still run as regional head candidates as long as the criminal threat they once faced occurred within five years. Subsequently, that decision was revised again.

The latest development is that former convicts are allowed to run as regional head candidates as long as their criminal threat is under five years and they must openly declare this to the public.