Prabowo’s challenge: in search of a legal and evidentiary miracle

Prabowo’s application relies mainly on press reports to argue that the period leading up to the presidential election, and the election itself, was marred by irregularities. Photo by Galih Pradipta for Antara.

 

On 11 June, lawyers representing Prabowo Subianto and Sandiaga Uno registered a new application with the Constitutional Court in which they challenged their loss in the 2019 presidential election.

 

While formally called an “amended application” (perbaikan permohonan), it seems intended to replace the initial application, lodged on 24 May. As has been widely reported, the initial application appeared to be relatively weak.

 

In particular, the application relied on press reports to argue that the leadup to the presidential election, and the election itself, was marred by irregularities.

 

The application claims these irregularities included: a law enforcement and intelligence apparatus that was biased towards victors Joko “Jokowi” Widodo and Ma’ruf Amin; an electoral commission and election supervisory agency that refused to act against alleged breaches of electoral rules by Jokowi’s supporters but pursued Prabowo’s for lesser breaches; the co-option of civil servants and public officials to support Jokowi, including by ministers and provincial governors; and the roll out of government programs and new infrastructure in the months before the election in an attempt to buy public favour.

 

Controversially, the application also referred to the work of Professor Tim Lindsey, of Melbourne Law School, in an attempt to substantiate the contention that Jokowi’s government was tending towards authoritarianism. It is not clear why a foreign academic’s blog was presented as formal evidence in a Constitutional Court case. However, the quote included in the application was clearly taken out of context, contained emphasis that was not in the original, and did not, in fact, support the argument it was used to prove. Lindsey had simply opined about how Jokowi was negotiating the political environment in which he found himself.

 

As for the election itself, Prabowo’s lawyers alleged widespread problems with the electoral roll, counting and tallying mistakes and other irregularities, and flawed software, claiming that the General Elections Commission (KPU) had not displayed due care and was rushed, “as if it was chasing a particular target”.

 

The amended application appears to contain more media articles and some more official counts to substantiate its arguments, making it around three times the size of the original application. Again, however, many of the arguments are not convincing – at least based on the evidence provided in the application.

 

Several times in the application, Prabowo’s lawyers promise that they will produce more detailed evidence at trial, claiming that they have not included it in the application itself to “ensure the purity, security and safety of the evidence”. They argue that all that is necessary at this stage of the process is to point to evidence that has already “emerged in the media, and therefore is already widely known in the broader public”.

 

One of the main inclusions in the revised application is the argument that Ma’ruf Amin should be disqualified because he did not resign from positions he holds in state-owned enterprises (BUMN) when he registered as a candidate. This argument is based on Article 227 of the 2017 Elections Law, which sets out various prerequisites for registration of prospective candidate pairs. Article 227(p) establishes as a prerequisite a “declaration of resignation as an employee or official of a state-owned enterprise or a regional state-owned enterprise since being stipulated as participating candidate pair”.

 

According to the application, Ma’ruf provided a statement to the KPU that he did not resign as an employee or official. This appears to indicate that Ma’ruf did not think that he was, in fact, an employee or an official of a state-owned enterprise, and therefore had nothing to resign from.

 

Prabowo’s lawyers argue that Ma’ruf falls foul of Article 227(p) because he is listed as sitting on the Syariah Advisory Boards of Bank Syariah Mandiri and BNI Syariah on their respective websites. The lawyers claim, therefore, that Ma’ruf violated Article 233 of the Elections Law, which says that if the administrative prerequisites are incomplete, incorrect or valid, the nominating political party or coalition cannot propose another candidate. This, they claim, “can form the basis for the Constitutional Court to disqualify” Jokowi and Ma’ruf.

 

While this argument might appear at first glance to hold water, on closer inspection it contains numerous holes, two of which I discuss here.

 

First, Article 227(p) appears in a chapter of the 2017 Elections Law that deals with the proposal and nomination of legislators as well as the president and vice president. The prerequisites for presidential and vice-presidential candidacy are mentioned in an entirely different part of the Law: Article 169. The candidacy requirements mention nothing about resigning from a BUMN.

 

By contrast, members of the legislature, whether national or local, must indeed resign from their positions as a “director, commissioner, member of a supervisory board or as an employee” of a BUMN to be able to stand as a candidate (Articles 182 and 240). It is even arguable that Article 227(p) was not intended to apply to presidential and vice-presidential candidates, given that resigning from a position at a BUMN is not a candidacy pre-requisite, as it is for legislative candidates.

 

In other words, Prabowo’s lawyers appear to have misconstrued the mere administrative formalities for registering as a candidate with the KPU as prerequisites for candidacy. In fact, the candidacy prerequisites and administrative formalities are very different things, and the distinction between them is crucial.

 

If Ma’ruf’s position on an advisory board is a matter of candidacy, then the Constitutional Court might consider disqualifying him. The Court has, in fact, disqualified candidates in regional head election disputes and ordered re-elections. This happened, for example, in a 2008 case, where a mayoral candidate in South Bengkulu (in Bengkulu province) had been allowed to stand for election, even though he had served seven years in prison for murder, and in a 2009 case, where a mayoral candidate in Tebing Tinggi (in North Sumatra province) had been found guilty of corruption.

 

Under the statutes applicable at the time, their convictions precluded them standing as a matter of candidacy. Of course, those were regional head elections, and this is a presidential one, but the Court could apply similar principles, despite the higher stakes.

 

If, on the other hand, the Court were to view resigning from a BUMN position as a mere administrative matter, then it would almost certainly not disqualify Ma’ruf. This is because the Court has held in several cases that administrative impediments cannot impede the enjoyment of constitutional rights, including to stand for election, which the Court has held in previous cases to be fundamental to democracy.

 

Second, it is doubtful whether Bank Syariah Mandiri and BNI Syariah are , in fact, BUMNs. When KPU Commissioner Hasyim Asy’ari was asked to respond to the disqualification argument, he said that the KPU had long known about Ma’ruf’s positions, and had, when verifying and registering the candidates, determined that the banks were not BUMNs. Rather, the Commission had concluded that they were subsidiaries of BUMNs.

 

Prabowo’s lawyers claim that because Bank Syariah Mandiri and BNI Syariah are majority-owned by BUMNs they should be treated as if they actually are BUMNs.

 

But even if these two banks are BUMNs, it does not appear that Ma’ruf is an employee or an official of them. Article 227(p) refers only to employees (karyawan) and officials (pejabat), and not to higher ranking personnel who might work with a BUMN in an advisory capacity, such as a member of a Syariah compliance board.

 

It seems unlikely that Prabowo’s lawyers will prevail on the disqualification point or, indeed, succeed on the other argument that election breaches were “systematic, structured and massive” – the threshold that appears to be required for the Court to issue a recount or a revote.

 

It bears noting that, in 2014, the Court upheld the victory of Jokowi and Jusuf Kalla in the face of a challenge by Prabowo and Hatta Rajasa that used some of the same arguments. The Court accepted that some irregularities may have occurred but found that, even if they had, they would not have been sufficient to change the result. Prabowo was simply unable to muster enough evidence to prove his allegations.

 

Provided the Court follows the law, gives the evidence due weight, and follows its previous decisions – and barring an evidentiary miracle from Prabowo’s lawyers at trial – the same outcome appears likely in 2019.