Election Court Research Articles

Choices of Law for Democratic Regional Head Election Dispute Resolution Institutions in Indonesia

This research aimed to provide a conceptual idea regarding legal options in resolving disputes of democratic regional head elections in Indonesia with two proposed options. The first option included revising the Election and Regional Election Law to grant authority to the Constitutional Court (MK) and Election Supervisory Agency (Bawaslu) for adjudicating disputes. The second option proposed implementing the Fifth Amendment to the 1945 Constitution to reconstruct the Constitutional Court as an election court correlating with the primary role of upholding regulations. These proposed options would grant the Constitutional Court the authority to examine and adjudicate substantial matters related to the constitutionality of elections. Furthermore, the analysis used normative legal research including statutory, comparative, and conceptual methods.

The Urgency of Establishing an Electoral Judicial Institution as an Effort to Strengthen the Electoral System in Indonesia

Periodically, every five years, general elections are held as a form of democracy in Indonesia. During elections, political issues are often followed by controversies, conflicts, and disputes in local power competitions. These issues include cheating, money politics, and vote manipulation. The purpose of this study is to encourage the establishment of a permanent electoral court in the constitutional system and in the form of a state institution to handle any existing election results disputes, whether for the presidential election, legislative election, or regional election. To achieve the electoral justice system's legal certainty and utility principles. The research method was used qualitatively with a case study research design. The results indicate that the establishment of an election court institution is essential, considering elections are held regularly and periodically as part of people's sovereignty representation and efforts to establish a fair electoral system. An election court institution is necessary for Indonesian elections, tasked with handling every election dispute, thereby allowing the Constitutional Court to focus solely on testing laws against the 1945 Constitution. This journal concludes that an electoral justice institution needs to be established permanently, with competent judges and resources to handle every election-related case to realize an electoral justice system.

타인의 선거범죄에 의한 당선무효제도에 관한 헌법적 검토

Trials for election crimes function to punish criminal acts that infringe on the freedom of elections and undermine the fairness of elections. Indirectly, it restores the fairness of elections disturbed by election crimes. However, there are far more cases in which the result of an election is changed by punishment for election crimes than in cases where the result of an election is corrected through an election lawsuit. In particular, there are many constitutional problems with a system that uniformly invalidates elections only by sentences of imprisonment or fines of 3 million won or more for other people's election crimes, not their own. The invalidation of the election due to election crimes by others violates the constitutional principle of responsibility or self-responsibility, as well as due process of law, thereby violating the candidate's right to hold public office. Above all, it can impose a burden on judges to simultaneously consider the policy judgment on the invalidation of the elected candidate in sentencing for other people's election crimes, thereby damaging the unique function of the judiciary. Comparatively, the UK and Japan also recognize the invalidity of elections due to election crimes by others. However, apart from the criminal trial for election crimes, whether to invalidate the election due to election crimes is decided through the judgment of the election court or the court in charge of election litigation. These comparative legislative examples can support the argument that the election invalidation system under Articles 263 and 265 of the Public Official Election Act violates the due process of law and violates the candidate's right to hold public office. In order to overcome the unconstitutionality of the invalidation of elections due to election crimes by others, it is necessary to think about guaranteeing a separate procedure for invalidation of elections. Therefore, legislative improvement should be made in the direction of organizing a due process that can determine whether or not an election is invalid, separate from criminal trials for other people's election crimes.

Unpacking the Ongoing Controversy Surrounding the 2023 Presidential Election Court Case: the Two Perspectives

Unpacking the Ongoing Controversy Surrounding the 2023 Presidential Election Court Case: the Two Perspectives

Establishment Of A General Election Court System In Indonesia

General election disputes in Indonesia frequently cause political and legal issues. Unfortunately, an established dispute resolution institution is not available. This article aims to address this need by addressing the reasons existing legal policy on general election dispute resolution has not succeeded in resolving general election disputes transparently, accountably, and fairly, and the legal policy design and requirements of an ideal general election court for the future. This was a normative legal study using a statutory, case, and conceptual approach. The results of the study showed that the existing legal policy of general election dispute resolution has not been manifested as a strong and stable institution. Two courts, namely the Supreme Court and the Constitutional Court, with different characters and constitutional mandates, alternately have become the forum for resolving general election disputes. The different procedures and decisions between the two courts often negate each other, causing legal uncertainty which ultimately fails to provide justice. In the future, therefore, it is necessary to establish a general election court institution with a special mandate to adjudicate election disputes based on the Election Law to create legal consistency, legal certainty, and fair settlement of election disputes.

Legal Analysis of the Establishment of a Special Electoral Court as an Independent State Institution

Article 24 of the 1945 Constitution only on structure but not on institutional functions where there are still many institutions/agencies in the government that carry out judicial functions. The regulation has led to the emergence of several independent institutions to carry out judicial functions, one of which is a special election court. The research used is normative research with an approach that focuses on the theoretical approach, the statutory approach, the case approach and is described in a qualitative descriptive form. The special election judiciary as an independent institution that will be formed is again from the law that aspires to, namely an institution that is free from intervention and can carry out judicial functions and disputes over the results of the elections. This special court is under the jurisdiction of the Supreme Court and will take the form of ad hoc. Its authority is to examine and adjudicate disputes over election results.

Gagasan Pembentukan Peradilan Khusus Pilkada Dalam Mewujudkan Electoral Justice

General Election and Regional Election are two different things on a constitutional basis. Then it was strengthened and confirmed by the decision of the Constitutional Court No. 97 / PUU / XI / 2013. This condition encourages the author to discuss the urgency of establishing a special election court with a simultaneous regional election system and a special court format that is effective in realizing electoral justice. This article aims to discuss the problems faced in resolving regional election results disputes in order to realize electoral justice in regional elections. The juridical formation of a special regional elections judicial body is an urgent need because it is a mandate of the law that must be implemented. The regional elections court format in realizing electoral justice includes three important principles that must be possessed by the regional elections court, the status and position of the regional elections court, the regional elections court judges, the role of the Supreme Court as judex juris and is attributed the authority to review the decision of the regional elections special court and relate to absolute competence. from the regional elections court.

Volný mandát člena parlamentu v ústavním vývoji Československa a České republiky

This article deals with the issue of the matter of the mandate of members of parliament in the constitutional history of Czechoslovakia and the Czech Republic. Namely the article is dedicated to the problem, whether and when in the years 1918–2020 the mandate of the members of parliament was free or imperative. The detailed description shows, that in Czechoslovakia strongly prevailed the imperative mandate, irrespective of character of the political regime. The pre-war Czechoslovak constitution adopted in 1920 expressly declared the mandate as a free one and members of parliament should use them regardless of any instructions or commands. Nonetheless very quickly, in 1923, through the decision of the Election Court, the first deputies were deprived of their functions as a sanction for leaving their party policy. Thus, even in the democratic regime the mandate was transformed into the imperative form. After the WWII, the political circumstances in Czechoslovakia changed and the regime turned into a totalitarian form under the hegemony of the communist party. In these circumstances the deputies should serve as servants of the voters, to follow their instructions and they could be recalled, if not fulfilling the will of the (working) people. Nonetheless the recall system based on the public meetings of the voters was not very practical and it could fulfil the estimations only when the communist party has the situation fully under its control. In some critical moments other tools for recall had to be adopted, as it happened in the year 1969, when the political situation after the Prague Spring suppression needed to be consolidated and the will of the voters was different of the will of the conservative communist leaders. The last recalls appeared after the Velvet Revolution when democracy was re-established in Czechoslovakia. Thus, the free parliamentary mandate existed hardly in 8 years from 75 years of existence of Czechoslovakia. The last 30 years of its existence in the constitution of the Czech Republic and political practice is still quite an uncommon period in the Czechoslovak constitutional tradition.

Desain Ulang Konsep Penegakan Hukum Pemilu di Indonesia dalam Kerangka Pemilu Demokratis dan Berkeadilan

The enforcement process of electoral law needs to be simplified by proposing the single authority granted to a special election court. This is because the segmentation of electoral law enforcement into several law enforcement agencies has not been able to guarantee legal certainty and enforce election justice. This article aims to revisit the various problems in segmenting election law enforcement and their implications for the quality of election administration in Indonesia. It offers an ideal concept of electoral law enforcement within the framework of democratic and fair elections. This article shows that election law problems and the concept of law enforcement which have been segmented into several categories with various settlement mechanisms and law enforcement agencies often only cause overlapping authorities and decisions between judicial institutions and still allow for a legal vacuum so that it has negative implications for the quality of elections in Indonesia. Consequently, it is necessary to revamp the concept of electoral law enforcement by simplifying and redesigning its law enforcement agencies, one of which is to strengthen the idea of ​​a special election court body. This is seen as the ideal concept of law enforcement for elections in Indonesia within the framework of democratic and fair elections.
 Keywords: Elections, Election Law Enforcement, Democratic and Fair Elections.

Konsep Pengadilan Khusus Dalam Penyelesaian Perkara Pemilihan Kepala Daerah di Indonesia

A special court for the settlement of regional head election cases needs to be established / held for the settlement of cases for regional head elections and this special court is established before the implementation of regional head elections simultaneously nationally. This special court for regional head elections is nothing new, but something that already exists. Moreover, this special election court has been implemented in Uruguay. The authority of the Election Court in Uruguay appears to be very broad, covering everything related to elections, from the making of the regulations, the implementation, to the settlement of the case. The form and design of the special election court institutions must be adapted to the conditions of the temporary (ad hoc) Indonesian state under the Supreme Court and has the authority to handle all cases that arise in the election process, ranging from administrative cases and election crimes to disputes over results. Regional elections.

Estudo de comparação institucional para solução de controvérsias para eleições de chefes regionais na Indonésia e no Brasil

This article is a legal research which conducts a comparative study of the dispute resolution institutions between the Indonesian and Brazilian elections. The purpose of writing this article is to map the similarities and differences in the practice of dispute resolution between regional head elections in Indonesia and Brazil to take good aspects that are suitable for implementation in Indonesia. In the discussion, it also covers the practice of organizing elections, election management organs and institutions, including the practice of dispute resolution for Election / Pilkada in both countries. The research method used is normative legal research using primary legal materials in the form of statutory regulations and court decisions, using a comparative approach, a statutory approach and a conceptual approach. Conclusions from the discussion of the research results, the authors propose two institutional options for Pilkada dispute resolution in Indonesia: a) Establishing a special election / election court under the PTUN environment. This Special Judiciary is domiciled in each provincial capital to adjudicate and decide on election result disputes (Election / Pilkada Crime and also examine and adjudicate election / election / election process / administration disputes), or b) Define the authority of the Constitutional Court of Justice to adjudicate disputes over the results of the Pilkada (in addition to PHPU) without any differentiation of regime.

Mengkaji Ulang Gagasan Pengadilan Khusus Pemilihan Umum di Indonesia

General elections are a means of democracy to elect leaders who will carry out the wheels of government for a certain period of time, through legitimate power transfer procedures by involving public participation. Elections are the crystallization of popular sovereignty in procedural mechanisms. But often in the implementation of procedural democracy this is followed by fraudulent actions that tarnish the true nature of democracy (substantial democracy). Therefore, we need a law enforcement agency for every action that can damage the essential meaning of democracy and elections in Indonesia. The idea of a special court emerged as an alternative to electoral dispute resolution in the study of Indonesian constitutional law, however this idea needs to be discussed in more depth from various aspects to see its relevance to the Indonesian constitutional system, given that long before there was the idea of a special election court, Indonesia already had a number of institutions that given a mandate and authority to resolve disputes related to elections. This paper uses normative juridical methods in its study and is supported by secondary data in the form of primary, secondary and tertiary legal materials. The analysis used is qualitative analysis. The results of the study revealed that the idea of establishing an electoral special court was the idea of state administration which emerged amidst the struggle to substantially improve the quality of democracy. However, in its formation, it does not only require clear legal politics, but also requires a holistic study of the mechanism and flow of resolution and models of electoral dispute resolution. The parameter that needs to be used in examining the idea of a special electoral court is to measure the extent and importance of elections for Indonesian democracy. because the more important the meaning of the election is the presence of special election court more worthy of consideration

Penyelesaian Sengketa Proses Pemilu Oleh Bawaslu, Tantangan Dan Masa Depan

This paper aims to discuss dispute resolution of Election process by Election Supervisory Agency (Bawaslu), as well as challenges and how to dispute the election process in the future. Act Number 7 of 2017, Article 95 letter d authorized the Election Supervisory Agency to receive, examine, mediate and adjudicate and decide on the resolution of election disputes. This means that based on Act Number 7 of 2017 in resolving disputes over the election process, Bawaslu is given additional authority to conduct mediation and adjudication. Settlement of disputes by Bawaslu is a crown whose existence is awaited by the community in resolving disputes that often occur during the election stage. To answer the challenge and to get to the destination someday Bawaslu becomes the Election Court, then Bawaslu must immediately build facilities to maintain the effectiveness and capacity of Regional Bawaslu, especially District / City Bawaslu to bemore active in training their abilities and their mentaly, which are still low in resolving election disputes. Key words : Dispute resolution, General election, Election Supervisory Agency.

MAHKAMAH KONSTITUSI SEBAGAI ELECTION COURT: REFLEKSI TEORETIS

The Constitution of Indonesia (UUD NRI 1945) confers authority to the Constitutional Court to decide disputes on the results of general elections. Theoretically, this authority develops the Constitutional Court as the election court. According to this background, this article proposes a theoretical reflection over the Constitutional Court’s role as the election court. The main issue is theoretical reflection on judging. The theory is normative because it claims about what should the Constitutional Court do instead of what did the Constitutional Court do. As the principle, it suggests prudentiality first and judicial activism second. This theory is to criticize, and then to correct, the Constitutional Court practices as the election court in the past.

Make an Honorary Board of Election Organizers (DKPP) as a Special Election Justice

General elections (elections) in Indonesia have their own dynamics. Starting from the institutional organizers to the dispute resolution institutions of election results. This can not be separated from every moment of the election, both central and regional (pilkada), which always presents various kinds of claims because of the emergence of fraud and election violations both intentionally and because of mistakes. So far, the official electoral dispute resolution institutions concerning election crimes are in the general court under the Supreme Court. If it concerns the election results in the Constitutional Court, if it concerns the decision of the election organizers in the State Administrative Court. And if it concerns the ethics of the election organizers on the election executive board (DKPP). While the Bawaslu itself according to Law No.7 of 2017 concerning elections resolves disputes over electoral violations outside the criminal aspect. This has caused the ineffectiveness of the electoral court.This study aims to identify, understand and analyze legal certainty and justice in elections, especially DKPP as a special election court. So that the principle of justice in elections is obtained by the public. The research is a normative study using several approaches, namely legislation approach, case approach, and comparative approach. The results of this review revealed that efforts to realize special election justice became important. There is still debate between the choice of submitting a new institution or turning an existing institution into an election justice institution. Likewise, between making the ad hoc or permanent electoral institutions under the Supreme Court still in the study stage. Then it is necessary to redesign the institutions that have the authority to settle the election results and regional elections that must be carried out without creating a new institution but utilizing the existing EMB. Keywords : Elections, Special Election Courts, DKPP. DOI : 10.7176/JLPG/83-10 Publication date :March 31 st 2019

Criterios en materia de paridad de género en la postulación de candidatos ¿Garantismo, neoconstitucionalismo o algo distinto?

El primer viso de cuota de género en la postulación de candidatos en México aparece como un buen deseo en el código electoral de 1993. Es hasta 2002, al volverse obligatorio para los partidos políticos el registro con cuotas efectivas, que se presentan las primeras impugnaciones que generan una serie de criterios del Tribunal Electoral, los cuales han ampliado las posibilidades reales de acceso de las mujeres a los cargos de elección popular. De cara a las elecciones de 2016, el Instituto Nacional Electoral (INE) emitió un acuerdo para establecer criterios sobre esta materia, que la Sala Superior revocó bajo el simple argumento de falta de competencia de la autoridad administrativa para hacerlo. Ello da pie en este documento para analizar los criterios del órgano jurisdiccional al respecto e intentar definir una línea jurisprudencial. Si se analizan los principales criterios del tema, a la luz de las teorías jurídicas del constitucionalismo contemporáneo, principalmente las denominadas garantismo y neoconstitucionalismo, podemos advertir que el andar del Tribunal mediante sus criterios ha sido errático, pues, ha emitido criterios que se pueden ubicar en ambas teorías, incluso encontramos algún precedente de corte completamente formalista, el cual constituye un verdadero viraje en sus criterios.

Rekonstruksi Kewenangan Penyelesaian Perselisihan Hasil Pemilihan Umum

Construction of authority in the settlement of dispute over the result of local election is still in transformation to become the ideal format. At the same time, the authority in the settlement of election dispute which is distributed to many agencies is also demanding simplification. The fact requires that there must be reconstruction on the settlement of all kinds of legal problems in election, including the dispute over local election results. Related to this, one of the proposals offered through this paper is the simplification of settlement system and the courts involved in the settlement of disputes. Where, for the settlement of disputed election results remain under the authority of the Constitutional Court, while the settlement of election disputes, local election disputes and disputes over the results of local election are handled by a special election court. The role of the election court referred to will be run by the Election Supervisory Body which will transform into a special election court.

Rekonseptualisasi Penyelesaian Perselisihan Hasil Pemilihan Umum di Indonesia

Elections are the means to implement sovereignty of the people in order to elect members of the House of Representatives, Regional Representatives Council, Local Legislative Council, the President and Vice President. Election are also meaningful for selecting the leader of the nation and the state (public officials) and as community control over board membership, President and Vice President to come. Election results are manifestation of popular sovereignty, which can lead to a dispute between organizer and election participants either political parties or individuals. The result of which can be challenged legally by election participant. The participant can also request the cancellation of the election result to the agency given with the authority to decide. Conceptually, the right institution to decide on election dispute is a special ad hoc election court. Constitutionally, dispute resolution of election result is intended to protect citizens' constitutional rights.

The dynamics of informal political networks and statehood in post-2001 Afghanistan: a case study of the 2010–2011 Special Election Court crisis

This article focuses on the 2010–2011 Special Election Court crisis, which serves as a microcosm of the broader post-2001 political network dynamics in which opportunistic practices of bargaining and the instrumentalization of identities have emerged as key features of Afghan politics. Post-2001 international state-building has produced a ‘network state’ where the state and political networks have become co-constitutive in state-building. This has produced the democratic façade of a state, underpinned by informal power structures and networks. In light of this analysis, a successful international exit from Afghanistan and post-2014 state survival may depend as much on the political stability of the empowered networks as on the strength of the Afghan National Security Forces and the outcome of the ongoing reconciliation and negotiation with the Taliban.

Public or Personal Character in Election Campaigns: A Review of the Implications of the Judgment in Watkins v Woolas

Reviewing the Election Court's decision that a candidate's parliamentary election literature was unlawful under the Representation of the People Act, the Divisional Court held that statements could either be about a candidate's public character or his personal character but not both. Though the legislation was compatible with the ECHR if it penalised only the latter, the question for the courts is really a matter of whether statement impugns a candidate's character more than merely as a necessary implication of an allegation regarding conduct such as the breaking of election promises.