Why Indonesia Needs A Special Electoral Court To Safeguard Its Democracy -By Munif Rochmawanto, Ja’far Shodiq, & Zahra Syakilah

Law Number 7 of 2017 concerning General Elections regulates a comprehensive system for handling election violations and disputes. Election violations are classified into three categories: violations of the election organizers’ code of ethics, election administration violations, and election crimes. Meanwhile, election disputes include disputes between election participants and the General Elections Commission (KPU) arising from the issuance of KPU decisions deemed detrimental to election participants (election administrative disputes), disputes over election results, and disputes between election participants.

The mechanism for resolving administrative violations and election process disputes falls under the authority of the General Elections Supervisory Agency (Bawaslu), which is then followed up by the General Elections Commission (KPU) through the imposition of administrative sanctions. Violations of the election organizer code of ethics are handled by the Election Organizer Honorary Council (DKPP). Meanwhile, disputes over election results are resolved through the judicial system, whose decisions are final and binding on the KPU.

In certain types of violations, if one party feels aggrieved, the resolution mechanism falls under the jurisdiction of the Constitutional Court (MK), particularly in cases of election result disputes. Meanwhile, the General Elections Supervisory Agency (Bawaslu) is authorized to handle state administrative (TUN) election disputes, whose decisions can still be appealed to the State Administrative Court (PTUN). The role of the judiciary in resolving election disputes is not limited to dispute resolution alone, but also serves to ensure the implementation of democratic election principles, thereby preventing abuse of authority and violations in the general election system.

In practice, losses suffered by election participants, violations committed by them, and disputes over election results are handled by various institutions, including the Constitutional Court, the Supreme Court, district courts, the Election Organizer Honorary Council (DKPP), and the Elections Supervisory Agency (Bawaslu). The involvement of multiple institutions in resolving election disputes has the potential to create procedural complexity that could complicate the decision-making process.

Furthermore, empirically, state institutions in Indonesia often exhibit sectoral egos, which lead to lengthy processes for handling election violations and disputes, and open up the possibility of overlapping authority in the implementation of similar tasks, functions, and authorities. Therefore, a centralized dispute resolution mechanism within a single institution is needed to increase the effectiveness and efficiency of election dispute resolution. This reinforces the urgency of establishing a special election court, given the unique characteristics and specificities of general elections.

In response to these issues, a special election court could be designed with a three-chamber system: an election crimes chamber, an election administration violations chamber, and an election results dispute chamber. This division of authority allows each type of election case to be examined by a judge with the competence appropriate to its legal character, thus making the examination process more focused, consistent, and equitable.

The three-chamber electoral court system not only simplifies dispute resolution mechanisms but also strengthens guarantees of judicial independence and impartiality. Integrating election dispute resolution within a single specialized judicial institution is expected to improve the quality of decisions while minimizing the inter-agency egos that frequently arise in practice.

The establishment of a special election court is a legal urgency, particularly in the context of simultaneous elections. If the Constitutional Court’s transitional authority to handle election disputes is allowed to continue for too long, it could potentially disrupt the Court’s focus on exercising its other constitutional powers.

For the first time in Indonesia’s electoral history, elections were held simultaneously, including the election of legislative members, the President and Vice President, and regional head elections, although they were held at different times but still in the same year. However, the implementation of the Presidential and Vice Presidential elections and the legislative elections in 2024 gave rise to various controversies, starting from the decision of the Constitutional Court’s Honorary Council which stated that the Chief Justice of the Constitutional Court violated the code of ethics regarding the material review of Article 169 letter q of Law Number 7 of 2017 which resulted in Constitutional Court Decision Number 90 / PUU-XXI / 2023, Bawaslu’s findings regarding problems in voting and vote counting, to the emergence of conflicting election dispute resolution decisions and the DKPP decision regarding violations of the code of ethics committed by the Chairman of the KPU.