Legal Pluralism in Dispute Resolution on Election Justice
Herdi Munte
1
and Yuliandri
2
1
Program Doktor Ilmu Hukum, Universitas Sumatera Utara (USU-Medan), Medan, Sumatera Utara, Indonesia
2
Program Doktor Ilmu Hukum, UniversitasAndalas (UNAND-Padang), Padang, Sumatera Barat, Indonesia
Keywords: Dispute; Electoral Justice; Legal pluralism, deliberation to reach a consensus.
Abstract: International Democracy and Electoral Assistance (IDEA) determines election justice to be one indicator of
democratic elections. Democratic countries are required to have a legal framework that is in line with the
country's system, especially instruments for electoral dispute resolution. The problem examined is how the
legal framework for electoral dispute resolution and the concept of upholding electoral justice related to
legal pluralism in Indonesia is evaluated by normative juridical methods. The results show that Indonesia
has already arranged the election process dispute (EPD) resolution. Election Supervisory Board (ESB) is
given the authority to complete EPDs whose decisions are final and binding. The adopted settlement
principle is deliberation to reach consensus. This model is new and closely related to the pluralism of the
Indonesian legal system. Consensus agreement is a living value system and codified in positive law (civil
law). However, it is necessary to revise the law to establish formal procedural law that is in accordance with
the principles of an effective and efficient election justice system. Furthermore, ESB's design and
transformation into a special court of character, strong and credible is needed.
1 INTRODUCTION
The main function of an election supervisory body is
to supervise the election process so that it runs
according to the legal rules and principles of the
election. For this reason, Bawaslu was formed as an
institution that works to prevent and enforce election
law.
In Law No. 7/2017, the term electoral disputes
and disputes was introduced. Typically, the term
dispute is known in civil law. But this law also
introduces two types of election process dispute
(EPD) resolution and disputes over election results.
SPP covers disputes that occur between election
participants and dispute between election
participants and election administrators as a result of
the issuance of the General Election Commission's
decision (Law No.7 / 2017, article 466). Election
Supervisory Board (ESB) as the election oversight
institution (EOI) is given the authority to complete
the EPD. Bawaslu's decision is final and binding
except for 3 (three) things, namely: verification of
political parties, determination of the list of
permanent candidates (LPC), and determination of
candidate pairs. These three things should have the
potential to cause election disputes, but why does the
law limit them that way. The concept of legal
settlement needs to be redesigned (reconstructed)
with a model of resolving election disputes that is
characterized, strong and trusted in order to realize
electoral justice.
2 METHOD
The study was conducted in northern Sumatra by
evaluating several cases that occurred in several
districts using the normative legal research method.
Data obtained from ESB of North Sumatra Province
in 2019 as in Table 1.
Table 1: The ESB data problems and solutions.
This case was handled by the ESB of North
Sumatra Province and 33 Regencies / Cities during
the simultaneous elections in 2019. Out of the 26
22
Munte, H. and Yuliandri, .
Legal Pluralism in Dispute Resolution on Election Justice.
DOI: 10.5220/0010294100003051
In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 22-27
ISBN: 978-989-758-501-2
Copyright
c
2022 by SCITEPRESS Science and Technology Publications, Lda. All rights reserved
submitted cases, there were one failed because they
were absent, 14 cases were resolved by closed
mediation mechanism and 11 cases were resolved by
open adjudication mechanism. The party who sued
was the legislative candidate and the management of
the political parties who felt disadvantaged because
they were not passed as candidates for the issuance
of the decision of the GEC. Data were analyzed
qualitatively against Law No.7 / 2017 and
International Institute for Democracy and Electoral
Assistance (IDEA) standards, then presented
systematically in the form of discussions to answer
the problem.
3 RESULTS AND DISCUSSIONS
3.1 Implementation of Election Dispute
Resolution
Based on case studies in various countries, there are
five law enforcement mechanisms for resolving
election disputes, namely (1) examinations by the
election management board the possibility of
appealing to higher institutions; (2) election court or
special judge to handle election complaints; (3)
general courts that handle objections with the
possibility of being appealed to higher institutions;
(4) the resolution of election problems is submitted
to the constitutional court and / or constitutional
court; and (5) resolution of election problems by the
high court. (Bisariyadi, 2012).
Election process disputes in the law stipulate that
the EPD covers dispute between participants and the
election organizer as a result of the issuance of GEC
decision. The law does not explain in more detail
about the definition of election disputes but only
describes the legal subjects of the election
participants and the GEC as a party. The object of
the dispute is in the form of a decision (beschikking),
legal actions of the subject and legal consequences
of the actions of the GEC.
The concept of this election dispute should be
clearly defined. According to the dictionary term, a
dispute is a conflict or dispute between two or more
parties to a certain object that causes legal
consequences or losses for one party. Election
disputes are disputes between two or more parties
regarding a thing or a violation of rights that are
detrimental to the interests or rights of election
participants due to the issuance of the GEC decision.
The application of legal settlement carried out by
EOI is carried out in two stages, namely the
mediation stage to reach consensus. However, if
mediation fails, an adjudication stage is carried out
to determine the final decision. In practice,
mediation works and many fails until adjudication.
Based on the decision data, this failure was caused
by each party holding their respective positions.
Referring to Cruz (De Cruz, P, 2014), norms can
be approached teleologically in the form of
sociological or economic demands (effective and
efficient). In this context the electoral process may
not be a violation or denial of the constitutional
rights of citizens by the government (GEC) and if it
occurs then it must be resolved. Election disputes
must be resolved according to the mechanism or
means available if there is a claim or complaint on
the rights of the injured citizens. The purpose of this
legal norm is in line with the concept of the rule of
law in accordance with the mandate of the Third
Amendment to the 1945 Constitution of the
Republic of Indonesia which states that the
Indonesian state is a state based on law.
According to JimlyAsshiddiqie, there are twelve
main principles of the rule of law and one of them is
the constitutional justice (JimlyAsshiddiqie, 2006).
The principle of state administrative justice is
answered by the existence of mechanisms and means
of administrative appeal in the law. The country is
represented by the GEC (central, provincial and
district / city) as a state administrative function in
the electoral field. The actions of state
administrative officials who are mistaken or wrongly
requested, corrected or monitored through the
administrative justice process. But there is still a
need to study so that ESB is considered appropriate
to be a means of electoral justice in overseeing the
GEC legal actions in the holding of elections.
Hart revealed that the law is an order from a
sovereign ruler and must be obeyed (Hart HLA,
1997). The law is a recognized order and must be
obeyed because it was formed by the sovereign
authority in Indonesia. The legislator gave the
mandate to order the central, provincial and district /
city ESBs to receive, examine and decide on
disputes in the electoral process that were submitted
to him.
Based on the data in Table 1, there were 14 cases
resolved in the mediation stage (consensus) and
there were 11 cases resolved during the adjudication
stage of the ESB decision. Looking at the data, one
side of mediation (consensus) is a useful tool for
justice seekers rather than continuing to an open
hearing. However, the 14 mediated cases prove that
the case sitting is not complicated and that there is
already a willingness / recognition of the GEC to
correct its mistakes. ESB only carries out procedural
Legal Pluralism in Dispute Resolution on Election Justice
23
and administrative mediation agreements only. The
results show that in the mediation process, the ability
and professionalism of a mediator must be
prominent and very decisive in mediating election
disputes.
The exercise of this authority has not yet been
equipped with standard procedural law in the context
of enforcing its material law. This is because there is
no firmness in the law related to the evidentiary law
in force (whether it refers to the proof of civil or
mixed law). The assertion of this norm is important
so what HLA said. Hart that primary (material) law
requires secondary law (formal law). The concept of
the law in question will have positive consequences
for the development of an electoral justice system
for the better.
3.2 Election Justice Enforcement
The Republic of Indonesia Constitution has
stipulated that elections must be held fairly and
fairly. There is no further explanation of what is
meant by fair (Refly Harun (2016). The law
governing the election is aimed at realizing fair and
integrity elections (Law No.7 / 2017). The third
paragraph mentioned that the holding of good and
quality elections will increase the degree of healthy
competition, participatory, and representation that is
getting stronger and can be accounted for. In this
study it was found that the explanation or definition
of good and quality election benchmarks must be
affirmed. There are three important processes of
electoral governance that go beyond just electoral
administration, namely the establishment of
regulatory bodies and rules, application of rules and
dispute resolution. Electoral governance begins with
the process of enacting laws and regulations, then
administrative enforcement and judicial assessment
(dispute resolution) and concludes when the process
returns to the beginning, either through judicial
interpretation or recommendations by the legislature.
(Torres And Díaz, 2014).
According to International IDEA, the electoral
justice is defined from the perspective of a fair and
timely election dispute resolution system. The
election justice in International IDEA's view is
limited to the realm of electoral legal problem
solving systems in the context of upholding citizens'
voting rights. Electoral justice includes the means
and mechanisms available in a particular country
that aims to:
A. Ensuring that each action, procedure and
decision are realted to the total process is in
line with the law (the constitution, statute law,
international instruments and treties, and all
other provisions); and
B. Protecting or restoring the enjoyment of
electoral rights, giving people who believe
their electoral rights have violated the ability
to make a complaint, get a hearing and receive
an adjudication. (Ayman Ayoub & Andrew
Elli, 2010).
As a reference for comparison, the limits made
by International IDEA are quite good and can be
applied. To maintain the credibility and legitimacy
of elections requires a system of electoral justice that
follows principles and values that originate from the
culture and legal framework of each country or
international legal instruments.
The system must run effectively and show
independence and impartiality to realize justice. In
this context, the electoral justice paradigm must
protect citizens' voting rights. If these rights are
manipulated, the electoral justice system must be
able to restore or restore it (Center for Electoral
Reform, 2010).
Ramlan Surbakti said not only limited election
justice to the availability of an electoral legal
framework, one important criterion was fair and
timely resolution of election disputes (Ramlan
Surbakti, 2014). The author agrees that the legal
system in force in the International can be adopted
but must adjust to the conditions, needs, values,
culture and legal system in the country. The system
that lives or is adhered to by the Indonesian people,
namely the values that exist in Pancasila.
In its implementation, the implementation of
electoral justice enforcement currently involves
numerous and scattered institutions. For example,
there is a GEC for election administration services, a
State Administrative Court for state administrative
disputes, a District Court for criminal acts, an
Election Organizer Honorary Board (EOHB) for
ethical violations, a Constitutional Court for disputes
over election results and finally there is an ESB for
administrative justice and election process disputes.
Scattered institutional variations and overlapping
authorities make dispute resolution long and
protracted. Several articles that clash, namely article
468 with articles 469, 470, 471 and article 472.
Comparing with the data collected, the ESB was
able to resolve disputes arising both in the mediation
and adjudication processes. The principle of one
forum can answer concerns about uncertainty and
the potential to reduce the principle of seeking fair
and timely elections. (Ady Thea DA, Variety of
Problems in Election Disputes). In this context
strengthening SPP in a strong and trusted institution
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24
is needed. The ESB can be transformed into an
electoral justice system to ensure fair and timely
resolution of election disputes. (InsiNantikaJelita,
2019).
3.3 SPP in Legal Pluralism Perspective
The settlement of the existing election case brings
the parties to the case together to be mediated. The
goal is to find a solution based on the deliberations
and consensus of the parties. This concept is quite
good because it reflects the value of living (living
law) that comes from Pancasila. Positive law (law
7/2017) absorbs and revitalizes noble values in
resolving conflicting general election laws.
According to Werner Menski (Werner Menski,
2008) the three main types of approaches to the
triangular concept of legal pluralism are used: law
created by society, law created by the state and laws
arising through values and ethics of the nation
(AchmadAli , 2009). This view is supported by
Erman Rajagukguk who states that legal pluralism is
generally defined as a situation where there are two
or more legal systems that exist in a social life.
Legal pluralism as a characteristic of Indonesia
must be recognized as a reality of society. Each
community group has its own legal system which
differs from one another to the others such as in the
family, age level, community, political group, which
is a unity of a homogeneous society. With many
islands, tribes, languages and cultures, Indonesia
wants to build a stable and modern nation with
strong national ties. So, according to him, avoiding
pluralism is the same as avoiding different realities
about the perspective and beliefs that live in
Indonesian society. (M-1, Legal Pluralism Must Be
Recognized). Legal pluralism is characterized by the
existence of a variety of governing authorities, each
of whom requires compliance with the members or
citizens he governs. Legal pluralism is now widely
accepted and has seen a marked increase in interest
since the turn of the century, not least in light of its
broad range of perspectives on the state it seeks to
interpret and possess. (Benda-Beckmann and Turner,
2018). The global perspective on law and history
related to the legal tradition has become a dialectic
inherent in globalization, as well as several 'de-' and
're-traditionalisation' trends, often being
strengthened by law and becoming legal traditions
even more topical at the global level. (Duve, 2017).
Legal pluralism has become a fact of life for a long
time before the formation of the Indonesian state
itself.
To understand the law and the way to rule in
Asia, Werner Menski offers a legal pluralism
approach. Legal pluralism approach is an
interrelation between aspects of the state (positive
law), social aspects (socio-legal approach), and
moral / ethical / religious (natural law). The method
of law that only relies on positive law with rules and
logic and its rule bound only leads to a deadlock in
the search for substantive justice. The legal
pluralism approach as referred to by Menski is
illustrated in the manner shown in Figure 1. Based
on the exercise in Figure 1, it is found that the legal
world includes a large plurality of triangles in space
and time. Law is so plural, it is impossible to be
absorbed in a whole theoretical, but by itself
becomes a configuration in a simple model. Legal
pluralism is a perfect integration to understand and
enforce law in a plural society.
Figure 1: Legal Pluralism in Plural society.
The legal pluralism approach in the form of a link
between positive law, socio-legal approach and
natural law is formulated in articles 466 - 469 of
Law 7/2017. The social aspect approach (socio-legal
approach) is taken from the cultural roots of
Indonesian people who are accustomed to
deliberation to reach a problem. This natural law
approach is reflected in the values of the four
precepts of Pancasila: democracy, wisdom of
wisdom in consultation / representation. By
borrowing the term Menski in the legal pluralism
approach, the paradigm of electoral dispute
resolution in Indonesia can be seen in Figure 2.
Legal Pluralism in Dispute Resolution on Election Justice
25
Figure 2: Pluralism-based paradigm of electoral dispute
resolution.
The opinion in the Figure 2 has strong relevance
underlying the legal norms in the dispute resolution
process. The goal is that the spirit of kinship and
mutual cooperation be maintained according to the
philosophy of the Pancasila rule of law. This
thinking concept is very suitable for the
implementation of fair and timely elections. In this
context the concept of deliberation and consensus is
actually ideal and suitable to be constructed as a
means of justice to correct or correct mistakes,
mistakes, violations and other election cases (except
criminal and election results). Correction mechanism
can be carried out for the stakeholders of the election
implementation both by election participants, GEC,
and the community. Errors or errors of procedures,
mechanisms, other administrative (except criminal
and the results of the vote) can be tested through the
means of electoral justice designed based on the
principle of dignified election means fair and timely.
The development of a dignified electoral justice
system is closely related to the philosophy of the
Indonesian state, namely creating a spirit of mutual
cooperation and the unity of Indonesia in wisdom
and wisdom. The paradigm that must be built is to
solve the problem not merely to try the case.
4 CONCLUSIONS AND
RECOMMENDATIONS
4.1 Conclusions
Based on the discussion results, the following
conclusions are drawn: The model of electoral
dispute resolution in Law 7/2017 with mediation
mechanism is highly needed but it is still
problematic in terms of mediator's capacity and
professionalism for the ESB members in resolving
election disputes. The concept of upholding electoral
justice by prioritizing deliberation and consensus is a
reflection of Indonesia's pluralism (volksgeist) but is
still problematic in terms of procedural law and
proof systems that are not yet standard.
4.2 Recommendations
In order to ensure election justice, articles 468, 469,
470, 471 and article 472 need to be revised by
reconstructing the dispute resolution process in one
forum on the ESB as well as standard evidentiary
laws. The draft and transformation of ESB is needed
to become a special judiciary that is characterized by
strong and trusted aspects to realize the electoral
justice system.
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