The Constitutional Court's Maneuver in Regional Head Election Disputes

As a democratic country, Indonesia provides an election system that is a form of representative democracy. The application of representative democracy is motivated by the fact that direct democracy cannot and is not ethically realized.[4] The election system in Indonesia has its own uniqueness because it does not only consist of one regime. The election regime in Indonesia is divided into general elections and regional head elections (pilkada). This separation of regimes is dynamic considering that in this case the Constitutional Court is maneuvering its stance in interpretations that have implications for changes in the scope of the meaning of elections and pilkada itself.

Article 22E of the 1945 Constitution as interpreted by the Constitutional Court in Decision Number 97/PUU-XI/2013 limits the scope of elections to only include the election of members of the House of Representatives (DPR), the Regional Representative Council (DPD), the Regional House of Representatives (DPRD), as well as the President and Vice President.[5] The pilkada regulation which is separated from the general election as regulated in Article 18 paragraph (4) of the 1945 Constitution becomes legal decidendi The Constitutional Court in interpreting the meaning of pilkada which cannot be integrated into the election regime.[6] By using systematic interpretation and original intent The Constitutional Court assesses that even though the pilkada is carried out directly like the general election, it does not necessarily mean that pilkada disputes are also handled by the Constitutional Court, which incidentally has the authority to handle election disputes.[7] The integration of pilkada into one roof with the general election is a form of extension of authority which the Constitutional Court considers to be a form of unconstitutional act.[8]

With the above construction, the Constitutional Court in its decision stated that Article 236C of Law Number 12 of 2008 – the object constitutional review – which orders the handling of regional election disputes to be transferred from the Supreme Court to the Constitutional Court does not have binding legal force. Because there is a legal vacuum and a special institution that handles regional election disputes, the Constitutional Court ruled that regional election disputes would continue to be handled by the Constitutional Court until the relevant law was formed.[9] Responding to the Decision a quo Law Number 8 of 2015 was formed, which was later amended by Law Number 10 of 2016, in casu Article 157 which accommodates the material of the decision by granting the authority to decide regional election disputes to the Constitutional Court as long as a special judicial body has not been formed.[10]