The Difficulty of Proving the "TSM" Lawsuit in the Constitutional Court

Even though it was deemed that the applicant could not prove the alleged existence of TSM, the strong narrative among the public still received the attention of some constitutional judges. Three of the eight constitutional judges, namely Saldi Isra, Enny Nurbaningsih, and Arief Hidayat, submitted dissenting opinions or different opinions.

The essence of dissentingopinion assesses the occurrence of election violations and the need for re-elections to be held in a number of provinces/places where it is suspected that there have been violations in the implementation of elections, either due to allegations of the impact of social assistance or the involvement of officials and the like .

The decision of the Constitutional Court shattered the hopes of the applicant's camp and some of the public who had hoped that there would still be a chance for justice to prevail. There is a lot of hope that the Constitutional Court will have the courage to make a monumental decision by penetrating the substantive justice space, not just procedural justice. The Constitutional Court is expected to prove itself as a constitutional justice and guardian of democracy.

This hope arises because in the eyes of some of the public, academics, cultural figures, clergy, activists and politicians, there has now been a decline in democracy due to unethical political practices. In the midst of this wave, the Constitutional Court was also considered "tainted" by ethical cases of constitutional judges and the implementation of elections which many parties considered to be rampant with the involvement of officials and heads of state.

Even many parties have assessed that the Constitutional Court's decision on the dispute over the results of the 2024 Presidential Election will be an important turning point for the Court. This decision will also be a test for the sustainability of Indonesia as a country of law and democracy, as the decision itself will answer the "mistakes" that the Constitutional Court has created. All of those hopes are fading away.

Despite the above, looking back at the past two presidential elections, the issue of proving TSM (alleged vote rigging) often becomes a stumbling block for applicants disputing the results of the election. If in the TSM claim of the 2024 Presidential Election, the applicant is deemed by the judge to be unable to provide evidence for their claim, the same applies to previous presidential elections.

2019 Election, request disqualification and re-election

The May 25 2019 edition of the daily Kompas reported that in the 2019 Presidential Election, the presidential candidate Prabowo Subianto-Sandiaga Uno filed a lawsuit to dispute the results of the presidential election to the Constitutional Court. Prabowo-Sandi argued that there were TSM violations in the 2019 presidential election.

There are five forms of violation that they outline, namely the misuse of state budget and government programs/works; the lack of neutrality of state apparatus, such as police and intelligence; the abuse of bureaucracy and state-owned enterprises; the restriction of freedom of media and press; and discrimination in treatment and misuse of law enforcement.

Due to the five violations of the TSM (General Election Commission's guidelines for campaigning and ethics), Prabowo-Sandi has requested that the Constitutional Court disqualify Jokowi-Amin or at the very least order a national re-election. The presidential candidate has filed a dispute over the 2019 presidential election (PHPU) with Prabowo's brother, Hashim Djojohadikusumo, representing them.

Hashim, who was appointed as the person in charge of Prabowo-Sandi's lawsuit, arrived at the Constitutional Court accompanied by, among others, Prabowo-Sandi's Legal Team Chairman, Bambang Widjojanto. Interestingly, the Prabowo-Sandi National Winning Body (BPN) had previously stated several times that they would not file a Presidential Election Lawsuit to the Constitutional Court "because it was considered futile."

The 14-day deadline given by the law to settle the presidential election dispute is relatively brief to resolve major political matters, as well as significant impacts on national leadership.

Previously, the General Elections Commission (KPU) has announced the results of the 2019 elections. According to KPU's vote tally, the Jokowi-Amin pair received 85,607,362 votes or 55.50 percent of the votes, while Prabowo-Sandi received 68,650,239 votes or 44.50 percent of the votes. The difference in votes between the two pairs was 16,957,123, resulting in Jokowi-Amin's victory.

At that time, Kompas Research and Development conducted an opinion poll on 19-20 June 2019 regarding the PHPU election trial. As a result, public attitudes appear to be divided by aspects of favoritism in elections. As many as 68.2 percent of respondents who voted for candidate pair number 1, Joko Widodo-Ma'ruf Amin, stated that they did not believe that TSM had violated or cheated.

However, on the other hand, 73.5 percent of respondents voting for candidate pair number 2, Prabowo Subianto-Sandiaga Uno, stated that they believed that a violation had occurred (Kompas, 24/6/2019).

Bambang Widjojanto, a member of the legal team for Prabowo-Sandi, hopes that the Constitutional Court will not simply be a "calculator court" in examining the case. The Constitutional Court is expected to not only procedurally calculate the number of votes obtained by the two pairs of candidates, but also to consider this matter substantively, by taking into account the principles of a fair and just election.

Hopes that the Constitutional Court will not be procedural have emerged, so that it can more deeply examine violations of the TSM nature that have been committed because if it is done procedurally, it is believed that it will not be seen. However, these hopes remain just hopes.

In a 1,944-page verdict, the Constitutional Court declared that the petitioner's argument that there had been a systematic election violation in the previous election was legally unfounded as it was not supported by valid evidence, not relevant to the case being examined, and could not be explained legally.

The Constitutional Court rejected all the arguments of the applicant, Prabowo Subianto-Sandiaga Uno, who questioned the KPU's decision regarding the results of the presidential election vote count (Kompas, 28/6/2019).

In the 2014 election, Prabowo-Hatta challenged the KPU's decision

As in the 2019 presidential election, a similar lawsuit regarding the dispute over the presidential election results also occurred in the previous five-year election. Presidential and vice-presidential candidate pair, Prabowo Subianto-Hatta Rajasa, filed a lawsuit against the decision of the General Election Commission regarding the national vote recapitulation results and the appointment of Joko Widodo-Jusuf Kalla as the winning pair.

The legal team of Prabowo-Hatta (the Red and White Defender Team) argued that there was electoral fraud almost in all provinces in Indonesia by TSM. The fraud includes mobilizing voters using the additional voter list and special additional voter list.

Also read: Prabowo-Gibran Pair's Victory Is Legal

According to a member of the Team Defenders of the Red and White, the recapitulation results set by the KPU on July 22, 2014 did not match the calculations made by their team. Based on their calculations, Prabowo-Hatta received 67,139,153 votes and Jokowi-JK received 66,435,124 votes (a difference of 704,011 votes).

"From the results of this count, we found that in 33 provinces there were violations in the implementation of elections. "To be precise, there are 52,000 polling stations where there are 21 million voters," said Maqdir Ismail. He asked for a repeat vote at the 52,000 polling stations (Kompas, 26/6/2014).

Previously, the KPU had determined that Jokowi-JK won with 70,997,833 votes over Prabowo-Hatta with 62,576,444 votes (a difference of 8,421,389 votes).

Regarding the process of proving, the Constitutional Court (MK) is ready to provide equal treatment to all parties involved in the case, including related parties. The Constitutional Court (MK) is prepared to verify 52,000 C1 documents.

However, a number of weaknesses in the 2014 Presidential Election dispute lawsuit raise doubts that the Constitutional Court will grant the lawsuit. Weaknesses in Prabowo-Hatta's lawsuit, among other things, can be seen from the large number of data with typos and just copy paste.

One of the arguments in the application file of the Prabowo-Hatta team is the violation of TSM, among others, carried out by mobilizing voters through the use of additional special voter lists (DPKTb) or voters with ID cards/passports/other identities.

"When we talk about DPKTb, it's a matter of irregularities, things that don't comply with the rules. First, it doesn't have to be cheating. Second, it is not certain who the DPKTb users themselves will benefit from. With so many DPKTb, it is not known who benefits and who suffers losses because it cannot be verified. "If the capital is unusual things, it is too speculative to be said to be structured, systematic and massive fraud," explained Refly (Kompas, 31/7/2014).

Given this consideration, Refly argues that it is quite difficult for the Constitutional Court to grant the dispute application submitted by the Prabowo-Hatta team. The two arguments put forward by the team, namely the claim of the correct vote count according to the petitioner and allegations of violations of the electoral system, are not strong enough to nullify the results determined by the Election Commission.

The lawsuit materials submitted by the presidential and vice-presidential candidate pair Prabowo Subianto-Hatta Rajasa are considered to be like fiction or a fabrication. Therefore, Joko Widodo-Jusuf Kalla's legal team expressed optimism in winning.

Also read: MK considers Gibran's candidacy valid, presidential intervention not proven

This was stated by a member of the Jokowi-JK Legal Team, Andi M Asrun, after registering as a related party in the 2014 Presidential Election results dispute submitted by Prabowo-Hatta to the Constitutional Court. "It's more fiction, it's not clear. There are also many things that are wrong and unclear," said Asrun, who was accompanied by a number of advocates, such as Teguh Samudra and Sirra Prayuna (Kompas, 5/8/2014).

The three examples of difficulty in proving election dispute lawsuits over TSM-based fraud in the presidential election raises the question of whether the legal proceedings in the Constitutional Court, including all the instruments and legal arguments available, are still sufficient to resolve election disputes fairly and thoroughly. (KOMPAS Research)

Also read: PDI-P Says MK Failed to Become a Stronghold of Constitution and Democracy