Tuesday, 12 November 2019

Constitutional Judge: Some Try to Delegitimize Us

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  • TEMPO.CO, Jakarta - The proceedings that went on from June 14 to 27 heard the case filed against the General Elections Commission (KPU) by Prabowo Subianto-Sandiaga Salahuddin Uno’s legal team for structured, systematic and massive fraud in the 2019 election. They were also convinced that they won the election with 52 percent votes.

    The KPU as the respondent and the legal team of Joko Widodo-Ma’ruf Amin as the related party dismissed the suit as unfounded. Via live broadcast and online streaming, the public closely followed the unfolding courtroom drama that eventually culminated in the Constitutional Court’s verdict rejecting all the claims by the complainant. The panel of nine constitutional judges took turns to read out the 1,944 page-long verdict and unanimously declared that the Prabowo-Sandiaga camp had failed to validate its claims. “There was no cause for dissenting opinions,” said Judge I Dewa Gede Palguna during a special interview with Tempo.

    The taxing marathon court sessions, including six that lasted all day, have drained the judges of all their energy. Even after the sessions, they had to continue to read carefully the court materials with the assistance of 10 court clerks. “I’m grateful that none of the judges fell sick,” said Palguna, 51.

    Now that the trial is over, Chief Constitutional Justice Anwar and colleagues have a week to take a breather before they are back in court to tackle another round of legal disputes over the legislative election results starting July 9. Some of the judges chose to visit their hometowns, including Palguna. Taking time from his much-needed break, the Constitutional Court’s spokesperson sat down with Tempo’s Reza Maulana at his residence in Gianyar, Bali. In a one-and half-hour-long interview, Palguna talked about, among others, the courtroom incidents that were not seen in the broadcast, the difference between the current Constitutional Court in earlier days and now, and his relation with President Joko Widodo.

    How did the constitutional judges reach the unanimous ruling in the case?

    There was no cause for dissenting opinions. We saw the facts. Facts are factual, not interpretations like in judicial reviews. We also saw the evidences of postulates and they did not hold up. So how can there be dissenting opinions?

    How did the ruling process go?

    Each judge studied the case prior to the session. We constructed the case by looking at the postulates, arguments and evidence. From that, we prepared questions that were presented systematically during the sessions. After the fifth session on Friday, June 21, we held meeting that continued till Saturday and Sunday with the view to compile the verdict. In the meeting, we each presented own legal opinions, brainstormed and discussed. If there were any with dissenting views, usually we would have noticed already during brainstorming.

    Were there any?

    As far as I remember, no one was in favor of the case from the beginning. We did not have any differing views in terms of the case’s substance. We discussed the claims one by one. We studied the trial minutes, the evidence presented by the complainant to support their claims. It was relatively easy to reach the decision. Almost all the arguments needed little time to deliberate.

    For example?

    The argument presented by the complainant’s expert witness about the discrepancy in the comparison between the presidential and Regional Representatives Council (DPD) vote counts. They took the figures from C1 Form and believed that the forms could be adapted. But evidently, they used the data from KPU’s vote count system. When the judge asked why they compared the presidential and DPD & DPR (House of Representatives) - vote results, they argued that they could not find the DPR data. Odd. Because the same source also provides the DPR vote results. All of us said, “well, this doesn’t make sense.”

    Does it mean the judges’ deliberation meeting proceeded without debates?

    Not really. We spent a lot of time debating qualitative aspects. For example, the complainant remarked that the Constitutional Court should not just focus on technical aspects like vote counts but also should look at the constitutionality of the election. Clause No. 1 of the article 22.e of the Constitution stipulates that the election must be held in a fair and square manner. If this principle is not somehow fulfilled in the election to elect the leader to uphold democracy, then the election process violated constitutional and democratic principles. More or less, that’s how the complainant built their argument. We needed several hours just to discuss that point.

    And the result?

    We did have difference of opinion. But eventually, we agreed that such an argument should be left for judicial reviews and not incorporated in the election result dispute case. We also agreed to respond to all the arguments presented by the complainant although they were not directly related to the case so as to avoid more problems. As to how they received our responses, that’s another matter.

    The complainant considers 14 days too short to prove their fraud claims...

    That’s relative. In my understanding, they consider it to be too short because they want the court to not only handle the result dispute, but also the entire presidential election process. For the former, 14 days is sufficient.

    Why did the court limit the number of witnesses to 15?

    What’s the point of the complainant bringing in dozens of witnesses only to give the same testimonies? That’s why we left it to the complainant to pick the most relevant witnesses. We believe 15 is sufficient for the purpose. If we did not limit, it would violate the principle of election result dispute trial which is designed to be a speedy trial. Besides, these witnesses are only to point out vote discrepancies.

    The number of expert witnesses were also restricted?

    Actually, expert testimonies are not really necessary in election result disputes. They are really needed in judicial review cases. What do they want to explain in this case?

    The third session on June 19 went on till the wee hours of the next day. How come?

    (Laughs)...Yes. To allow the complainant to substantiate their argument. Otherwise, the respondent’s time the next day would be cut short. If the respondent presented the same lengthy testimony, well, we had to do the same but luckily, they did not (laughs)...

    Why did you pressure the witness who claimed he was threatened?

    It was important for me to make sure. It was as though people were being threatened for testifying at the Constitutional Court. He gave the impression that it was scary to participate in the Constitutional Court’s trial proceedings. That’s not good. Since established in 2003, the court has never had any witness feeling threatened for giving testimony. They wanted protection from the Witness and Victim Protection Agency (LPSK) but we did not see any reason. The LPSK is for criminal cases. If the court was convinced of the threat, we would request police protection. We’ve done that before in a regional head election dispute case back in 2015.

    There were reports that witnesses were treated like isolated prisoners while at the court...

    Isolated? Yes, indeed. But like prisoners? No. They felt like prisoners because they were not allowed to bring mobile phones. Let alone witnesses, even our employees were not allowed to carry mobile phones in the courtroom or when handling the case. They get their phones back when the office hours are over. That’s the standard. There were also many ministers in the waiting room during the dispute over the law. But yesterday it felt different because there were many people waiting too long. Everything we do is wrong. There’s always someone criticizing.

    Read the full interview in Tempo English Magazine