The suit in the Constitutional Court represents the final effort launched by the Badrul-Syihabuddin duet to counter the Supreme Court’s decision. In a decision on December 15 last year, the Supreme Court accepted a judicial review by the Depok KPUD and annulled the West Java High Court’s decision. This is despite the fact that the High Court’s decision had already “awarded” victory to Badrul who had already (according to the KPUD) lost to the Nurmahmudi Ismail-Yuyun Wirasaputra duet.
The Supreme Court’s position in being prepared to accept the review has itself reaped controversy. The Badrul camp points out that the highest judicial institution in the country has violated Law No. 32/2004 on Regional Government. There it states that it is sufficient for dispute resolution in the election of regional heads to be heard at judicial level; that is the High Court for the election of regents and mayors and the Supreme Court for the election of governors.
But the Supreme Court gave other reasons for its decision. “The seeking of a judicial review was granted and annuls the Bandung High Court’s decision because the High Court’s panel of judges exceeded [their] authority and the limits of the law,” said Harifin A. Tumpa, a member of the Supreme Court’s panel of judges. Harifin said that the High Court should have given consideration to the vote count conducted by the Depok KPUD. “But the votes that were not counted were the [main] consideration,” he said.
In its decision on August 4 last year, the panel of judges in the West Java High Court–presided over by Judge Nana Juwarna–said that an inflation and deflation of votes had been found in the election held on July 5, 2005. The amount was quite large, 62,702 votes. In addition to this–according to the judges–there were also 27,820 votes that should not have been counted, including those for the Nurmahmudi-Yuyun duet. In the end the judges annulled the Depok KPUD’s decision by determining that Badrul obtained more votes than Nurmahmudi.
A debate has even occurred on the matter of the judicial review among members of the panel of Supreme Court justices, that is Parman Suparman, Djoko Sarwoko, Gunanto Suryono, Harifin A. Tumpa and Paulus E. Lotulung. In the end however they agreed with the legal recourse of a judicial review in a civil case. “This was based on Supreme Court Regulation No. 2/2005 on the Resolution of Disputes in the Election of Regional Heads,” said Djoko.
According to Djoko, the understanding of “a decision of a final and binding character” in a dispute over the election of regional heads as referred to in the Law on Regional Government is only indicated when the two hostile parties accept the court’s decision. “Wasn’t it so that in the case of the Depok election of regional heads there was a party that did not accept the verdict?” he says. Djoko says that because this matter is not regulated by law and therefore in accordance with the Supreme Court regulation, its reference is to the civil procedural code. “And in accordance with the procedural code, the correct legal recourse is a judicial review,” he says.
Djoko says that in addition to this, the West Java High Court’s decision also disturbed the public’s sense of justice. Djoko says that the panel of judges took a decision based only on assumptions, not on facts. The Supreme Court justice also explained that they are not concerned that the Supreme Court’s decision will become a precedent for other parties to present similar cases.
The Supreme Court’s decision also sparked a strong reaction from the Badrul-Syihabuddin camp. The Golkar Party in the Regional Legislative Council (DPD)–the party that nominated Badrul–issued a motion of no confidence in the Supreme Court. “The motion was agreed to by all of Golkar’s Depok City leaders,” says the chair of Golkar’s Depok DPD, Naming D. Bothin. The Golkar Party faction, the National Mandate Party (PAN) faction and the National Unity faction in the Depok DPD have also declared they will oppose Nurmahmudi. “This is our choice,” said the spokesperson of the “trio of factions”, Babai Suhaimi.
On the street, disappointment by Badrul-Syihabuddin supporters boiled over. Hundreds of Golkar members held a demonstration in front of the Depok City Public Hall. The demonstration was countered by a group of Nurmahmudi supporters, most of who were the Justice and Prosperity Party (PKS) sympathizers. The two groups even clashed physically when they encountered each other at the Cibinong Court in mid-December. The political atmosphere in Depok continues to hot up. On Thursday two weeks ago, 42 out of 63 Depok village heads even issued a statement rejecting the Supreme Court’s decision. They sent the statement to the president and a number of higher state institutions.
The Golkar Party and Badrul-Syihabuddin’s attorney have already prepared a legal and political opposition plan. The legal path will be assisted by the Golkar Party’s Legal Aid Team headed by Muladi SH. One of their actions has been to present a suit to the Constitutional Court. “On the question of political action, that’s the Golkar Party’s domain,” says Alberth.
Golkar deputy-secretary general, Rully Chairil Azwar, explained that his party would give political support to and encourage Badrul to conduct the legal battle. One of the forms of party support says Rully is that Golkar’s general chairperson, Vice President Jusuf Kalla, has already spoken about the Badrul case with the minister of home affairs. Rully concedes however it is not much help. “Of course we can’t intervene in [matters of] legal authority,” he says.
Alberth admits that their request for the Constitutional Court to examine the Supreme Court’s decision in formal and material terms is unusual. According to Albert, the examination is important because the Supreme Court’s decision will become a jurisdiction that will have the same weight or be even stronger than law. “Because it is the same as a law, it must be examined against the Constitution,” says Alberth.
Albert says that in the formal examination, what will be questioned is the procedures of its formulation–was the formulation in accordance with prevailing stipulations. Albert is of the option that in formal terms the body that makes laws is the House of Representatives (DPR). “So, if another institutions make them, it doesn’t have binding legal force,” he says. Essentially, if the Constitutional Court later declares that the procedures in issuing the Supreme Court’s decision were erroneous, the decision will be invalid.
The material examination meanwhile will question its contents based on Article 24 Section 1 of the 1945 Constitution (UUD 45). The Constitution says that the judiciary’s authority to administer justice is to uphold the law, and then justice. Albert says that the Supreme Court’s decision meanwhile was not written in accordance with the Constitution, but in accordance with the teachings of Gustaf Brafruh, a German legal expert who gives precedence to justice ahead of the law. “Isn’t this in contradiction with the 1945 Constitution that gives precedence to the law and then justice?” he says.
The other issue that will be questioned are the procedures for resolving disputes. According to law, objections over the results of an election are submitted through the High Court and its decision is final and binding. “If the Supreme Court says that [you] can present another legal recourse, meanwhile the law says [you] can’t, there is the Supreme Court’s mistake,” he added.
But Nurmahmudi’s attorney Adnan Buyung Nasution rejects this argument. According to Buyung, the High Court only implements the Supreme Court’s authority because it is delegated. “If the delegation of authority is misused or used incorrectly, of course the Supreme Court is authorized to reexamine it,” he says.
In the midst of this uproar, Nurmahmudi has chosen to make few comments. “I am in the position of not being the subject, but have become an object. So, I will not make to many comments,” he told Tempo during a visit to his home in Perumahan Tugu, Depok.
Nurmahmudi’s bearing is uniquely one of the “demeanor of a winner”. The thing is that on Thursday last week the West Java governor has sent a letter to the Minister of Home Affairs asking for the conformation of the appointment of Nurmahmudi and Yuyun as the mayor and deputy-mayor of Depok City. “I am very sure that Nurmahmudi will be inaugurated, even though there are efforts to block him,” says Buyung.
But there is also optimism in Badrul’s heart. “Look at the Minister of Home Affairs’ statement. He said this is not just a legal issue, but political reality is also a matter of consideration,” says Badrul. In order to assert who the valid mayor of Depok is, Home Affairs Minister Mohammad Ma’ruf has indeed said that aside from the legal factors he will also look at the political reality in Depok. Badrul himself has also prepared a “reserve weapon” if after all the minister issues a ministerial decree ordering Nurmahmudi’s inauguration. “As soon as the decree is issued, we will take the Minister of Home Affairs before the State Administrative Court,” says Alberth.
Meanwhile, the former Minister for Regional Autonomy, Ryaas Rasyid, says the controversy over the case has made things awkward for the government. However he offers a solution: for now, let the Minister of Home Affairs inaugurate Nurmahmudi. “But, the inauguration could be in vain if the Constitutional Court issues a decision that states the Supreme Court does not have the authority to decide on or accept a judicial review,” he says. It will be complicated if the Constitutional Court’s decision again annuls the Supreme Court’s decision–and certainly this not an easy case.
Abdul Manan, Rini Kustini, Olivia, Nuraini/LRB
DEPOK POLITICAL MAP
NURMAHMUDI ISMAIL-YUYUN WIRASAPUTRA
nominated by the Justice and Prosperity Party Faction (PKS)
BADRUL KAMAL-SYIHABUDDIN AHMAD
nominated by the Golkar Faction, the National Unity Party and
the National Mandate Party Faction
RESULT IN THE DEPOK REGIONAL HEADS ELECTION, JUNE 26, 2005
Regional General Elections Commission (KPUD) determination, July
Nurmahmudi Ismail-Yuyun Wirasaputra : 232,610 votes
Badrul Kamal-Syihabuddin Ahmad : 206,781 votes
Bandung High Court determination, August 4, 2005
Nurmahmudi Ismail-Yuyun Wirasaputra : 204,828 votes
Badrul Kamal-Syihabuddin Ahmad : 269,551 votes
DEPOK IN NUMBERS
Regional name: Depok City
Capital city: Depok
Province: West Java
Land area: 200.29 square kilometers
Population: 1,143,403 (2000 population census data)
Sub-districts: 6 (six)
Locally Generated Revenue in 2003: Rp41.1 billion
Revenue from Regional Budget in 2003: Rp369.6 billion
Regional Budget Expenditure in 2003: Rp381.1 billion
Regional Budget Deficit in 2003: Rp11.46 billion
TEMPO, JANUARY 16, 2006-019/P. 32 Heading Cover Story