JRSSEM 2022, Vol. 01, No. 11, 1952 – 1962

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v1i11.209 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

SPECIAL COURTS FOR THE SETTLEMENT OF REGIONAL

HEAD ELECTION DISPUTES IN THE CONTEXT OF

REALIZING THE PRINCIPLE OF LEGAL CERTAINTY AND

ORDERLY GOVERNANE

Abd. Rahmattullah Rorano S. Abubakar

Atma Suganda

1,2

Universitas jayabaya, Jakarta, Indonesia

e-mail: doktor_jayabaya@yahoo.com

, atmasuganda7@gmail.com

*Correspondence: doktor_jayabaya@yahoo.com

Submitted: 27 May 2022, Revised: 06 June 2022, Accepted: 15 June 2022

Abstract. Law Number 12 of 2008 violates the 1945 Constitution of the Republic of Indonesia.

Article 157(1) of Law Number 8 of 2015 stipulates that the settlement of disputes over the results

of direct regional head elections is under the jurisdiction of a special court, but until the

establishment of a special court, the Constitutional Court still has the power to resolve disputes

over the results of direct elections. The results of the research are expected to be able to answer

constitutional issues in Indonesia, especially regarding the urgency of the establishment of a

special court for the election of regional heads and the extent to which the design model for special

courts for the election of regional heads is in order to ensure the quality of democracy. In addition,

as a discourse for students who are in the field of Constitutional Law, it requires constructive

thinking. This research uses a normative juridical approach which emphasizes literature research.

The portrait of dispute resolution on the results of regional head elections continues to experience

dynamics along with interpretations of the institutionalization of regional head elections as part of

the general election regime or not.

Keywords: special courts, regional head election, legal certainty and orderly governane

INTRODUCTION

General election is one of the most

basic means of channeling the rights of

citizens. Therefore, in the context of

implementing the human rights of citizens,

1954 | Special Courts for the Settlement of Regional Head Election Disputes in the Context of

Realizing the Principle of Legal Certainty and Orderly Governane

it is imperative for the government to

ensure the implementation of general

elections in accordance with a

predetermined constitutional schedule. In

accordance with the principle of popular

sovereignty where the people are

sovereign, all aspects of holding the

general election itself must also be

returned to the people to determine them

(Istinah et al., 2021). At the government

(government) level, general elections are

written into regional head election

institutions that provide deliberation

(participation) space for the community to

determine the direction of regional

government and determine leadership in

the region (Lathif et al., 2020). This was

accommodated for the first time with the

enactment of the Law of the Republic of

Indonesia Number 32 of 2004 concerning

Governance. Regions are precisely in Article

56 which states that "the election of

regional heads is carried out directly by the

people". Such a situation marks a

fundamental change in the mechanism of

regional head elections.

The stage of direct democracy which

has now become part of the process of

transferring power in the country which is

expected to be able to realize good

governance, at the implementation level

has actually begun to cause a number of

very complex problems (Simamora, 2011).

Especially in the matter of disputes over the

results of regional head elections.

Referring to the historical side of

dispute resolution of regional head

elections for the first time it is the domain

of the Supreme Court (Falco & Kleinhans,

2018). After the issuance of Law of the

Republic of Indonesia Number 12 of 2008

concerning the Second Amendment to Law

Number 32 of 2004 concerning Regional

Government, the authority to decide

disputes over the results of regional head

elections shifted from the Supreme Court

to the Constitutional Court (Petriv, 2020).

The normative formulation was then

affirmed by Article 29 paragraph (1) letter e

of the Law of the Republic of Indonesia

Number 48 of 2009 concerning Judicial

Power (hereinafter referred to as the

"Judicial Power Act") which states that "The

Constitutional Court has the authority to

adjudicate at the first and final levels whose

decisions are is final for other powers

conferred by law" (Atmadja, 2021). Along

with its development, the constellation of

institutions authorized to handle disputes

over the results of regional head elections

were again tested to the Constitutional

Court. This was carried out by the Law and

Constitutional Study Forum (FKHK), the

student Executive Board of the Faculty of

law at Esa Unggul University (BEM FH UEU),

and the Jakarta Law Student Movement

(GMHJ) which examined the

constitutionality of Article 236C of Law

Number 12 of 2008 concerning the Second

Amendment to Law Number 32 of 2004

concerning Regional Government jobs.

Article 29 paragraph (1) letter e of Law

Number 48 of 2009 concerning Judicial

Powers against Article 1 paragraph (3),

Article 22E paragraph (2) and Article 24C

paragraph of the 1945 Constitution. The

petitioners argue that the articles

contained in the a quo law is contrary to

the 1945 Constitution of the Republic of

Indonesia (hereinafter referred to as "the

1945 Constitution of the Republic of

Indonesia" considering that the regional

Abd. Rahmattullah Rorano S. Abubakar, Atma Suganda | 1955

election is not part of the general election

regime as referred to in Article 22E because

the election of regional heads is regulated

in Article 18 paragraph (4) CHAPTER on

Regional Administration of the 1945

Constitution of the Republic of Indonesia.

Following up on the petitioners' petition,

the Constitutional Court then issued a

decision Number 97/PUU-XI/2013 which

stated that the Constitutional Court no

longer had the authority to settle disputes

over the results of regional head elections

and Article 236C of Law Number 12 of 2008

and Article 29 paragraph (1) letter e of Law

Number 48 of 2009 do not have binding

legal force (unconstitutional). The

Constitutional Court implicitly mandates

the legislators to establish a special court

to handle the resolution of regional head

election disputes (Center for Monitoring

the Implementation of Laws, 2018). In

general, the idea of establishing a special

court began to emerge and develop in the

post-reform era. The decentralization of

government and the diversification of the

functions of state power that are

expanding widely along with the

liberalization and democratization

movements in all areas of life have

encouraged the Government to establish a

judicial institution of a special nature (copy

protected by law, nd). The idea of the

urgency of the special judiciary for the

election of regional heads is actually one of

the most important components in the

principles of organizing general elections,

in this case "legal certainty". The context of

legal certainty means that the organizers,

supervisors, observers and participants in

the regional head election receive well

from the process, stages, programs and

schedule of implementation. Furthermore,

if there are parties who are not satisfied

with the work provided by the General

Election Commission (hereinafter referred

to as "KPU") as the organizer of the

regional head election, they can file a

dispute in a special court.

The idea of a special court having

jurisdiction over disputes over the results

of regional head elections is a relevant

matter to consider because legal remedies

in the process of regional head elections

that have occurred so far have often failed

to fulfill public justice. For example, a court

decision that has just been decided after

the stages have been implemented and has

layers of legal remedies so that it is

counterproductive to the stages of regional

head elections which are very limited by

the time period. Moreover, these legal

remedies are separated in several judicial

environments.

Referring to these conditions, legal

remedies for the stages of regional head

elections face further challenges with a

design model of simultaneous

implementation in the future because the

stages of the process and legal remedies

for each stage of the election will be carried

out simultaneously so that when using

judicial mechanisms as positive law when

Of course, realizing a fair election will be

difficult to realize (Arifin, 2021). The

establishment of a special judicial body

may be possible, especially for the purpose

of meeting the demands of the increasingly

complex development of justice in society

and in line with what has been determined

by the 1945 Constitution of the Republic of

Indonesia the constitution (Susanto &

Masyhar, 2020).

1956 | Special Courts for the Settlement of Regional Head Election Disputes in the Context of

Realizing the Principle of Legal Certainty and Orderly Governane

The existence of a special judicial body

should be established before the

implementation of the national

simultaneous election or in other words the

special judicial body will only function in

the national simultaneous regional head

election in 2024 (Rajab, 2018). The question

is, is it possible that a special judicial

body/institution will be formed in due

course. Especially when faced with the

controversies that often arise in the

formation of a law that is thick with political

overtones.

Since the decision of the Constitutional

Court has been pronounced in a plenary

session open to the public, legally it has

binding legal force, evidentiary power, and

executive power. In addition, there is no

further legal remedy to amend the decision

which already has permanent and binding

legal force, except with the subsequent

decision of the Constitutional Court. The

parties who feel disadvantaged by the

decision of the Constitutional Court,

technically juridically, can only accept the

empirical facts in accordance with the legal

provisions for the settlement of requests

for judicial review through the

Constitutional Court (Kosař & Šipulová,

2018). Moving on from the description of

the problem, of course the reason for the

establishment of a special court to settle

the results of regional head election

disputes needs to be a separate study.

Forming a new institution of course will be

equivalent to new problems such as

institutional construction, organizational

structure, readiness of infrastructure and

others. Therefore, the authors chose the

title of the research as follows: "Special

Court of Dispute Settlement of Regional

Head Election Results in the Framework of

Realizing the Principles of Certainty and

Orderly Administration of Government".

The theoretical use of this research is as

an effort to contribute ideas in the

development of specific constitutional law

sciences in the formation of special courts

for regional head elections so that they can

run effectively in order to ensure the

quality of democracy.

The results of the research are expected

to be able to answer constitutional issues

in Indonesia, especially regarding the

urgency of the establishment of a special

court for the election of regional heads and

the extent to which the design model for

special courts for the election of regional

heads is in order to ensure the quality of

democracy. In addition, as a discourse for

students who are in the field of

Constitutional Law, it requires constructive

thinking.

METHODS

The portrait of dispute resolution over

the results of regional head elections

continues to experience dynamics along

with interpretations regarding the

institutionalization of regional head

elections as part of the general election

regime or not. With regard to the urgency

of establishing a special judicial body for

disputes over the results of regional head

elections, the author finds at least 3

urgencies in this regard, including: 1) Legal

politics of the Constitutional Court, 2)

Departing from the basic idea of a rule of

law which is then elaborated further with

the constitutionality of special courts and

dynamics Sociologically, the settlement of

Abd. Rahmattullah Rorano S. Abubakar, Atma Suganda | 1957

disputes over the results of regional head

elections, was born de lege feranda which

regulates special courts for dispute

resolution. The use of research methods

aims to make research can be directed and

structured considering that a research is an

attempt to find, develop and test the truth

of a knowledge. Research Approach

This research uses a normative juridical

approach which emphasizes literature

research.

1. Research Specifications

The specifications in this study are

descriptive-analytical. A descriptive-

analytical study intends to provide an

overview of positive law (applicable

laws and regulations) associated with

theories, legal principles, and practice

of implementing positive law regarding

the problems being studied

(Christopher & Hutabarat, 2022). And

oriented towards legal improvement.

The descriptive stage is carried out to

provide an overview of the existing

object or event or reality, while in the

analytical stage generally accepted

conclusions will be drawn from the

object to be studied and then compiled

in the framework of legal improvement

orientation. This research will describe

the special judiciary. settlement of

regional head election disputes in

order to realize the principle of legal

certainty and orderly administration of

government. Furthermore, conclusions

that are generally accepted and

oriented towards legal improvement

will be drawn, in this case constructing

a special court for resolving regional

head election disputes.

2. Types of Data

The types of data used in this study

are primary and secondary data.

3. Legal Materials Collection Techniques

Data collection techniques in this

study were pursued in 2 (two) ways,

namely:

a. Library Research

Data collection techniques used

were reading and critiquing library

materials. (Soekanto, 1986)

b. Field Research The

The data collection technique

used is by conducting interviews.

The interview method chosen is

semi-structured, namely the

interview process is not limited to

the list of questions contained in

the interview guide, but it is still

possible to develop new questions

outside the interview guide.

4. Legal Material Analysis Techniques

The analysis used in this study is

normative qualitative analysis, namely

data analysis methods whose work

processes include data preparation and

interpretation (Nurhayati et al., 2021).

RESULTS AND DISCUSSION

Decision of the Government and the

DPR to Give Back the Authority for

Settlement of Disputes on the Results of

the Regional Head Election to the

1958 | Special Courts for the Settlement of Regional Head Election Disputes in the Context of

Realizing the Principle of Legal Certainty and Orderly Governane

Constitutional Court

1. The fabric of regional head elections

with the 4th principle of Pancasila

Pancasila as the nation's ideology is

the views, ideals, beliefs, and values of

the Indonesian nation that must be

implemented in the life, society, nation

and state in a comprehensive manner.

BPUPKI) dated May 31, 1945, Pancasila

as the ideal of an integralistic state is an

ideal concept where the state unites

with all its people to overcome all

groups in any field.

Pancasila as an open ideology is a

screening-board, standard guidelines

are in the form of a cumulative check-

list and not an alternative. This means

that as a justification tool for every

behavior, the test results related to the

Five Precepts of Pancasila must be

positive, nothing negative. Final

decision-making is determined on a

case-by-case basis, by assessing

positive tendencies. However, it should

be remembered that in

operationalizing Pancasila as a margin

of appreciation, an operator who has

professionalism in his field, a strong

and ethical leadership spirit,

accompanied by strong national

insight, is comprehensive, integral,

systematic, visionary, imaginative and

understands comparative advantage in

the middle flow of globalization.

The very broad values of Pancasila

are able to trace every aspect of the life

of the nation and state, including

democracy. Of course, the right optics

used are implemented in the values of

the 4th precept of Pancasila which

reads that "People are led by wisdom in

deliberation of representatives". The

main points of understanding Pancasila

democracy include democracy based

on the principle of kinship, religious

elements, the basis of truth, love and

noble character, Indonesian personality

and sustainability; a system of state

organization carried out by the people

themselves or with the consent of the

people; individual freedom that is not

absolute, and the unity of the ideals of

democracy and the ideals of life for the

Indonesian people with the spirit of

kinship without a majority or minority.

Democracy in the 4th principle of

Pancasila implies the involvement of all

parties or their representatives for the

sake of mutual prosperity in making

decisions. Soekarno explained that

democracy is what gives life and creates

social welfare as well as creates equality

that aims at common prosperity.

To realize or embody democracy, an

in casu a quo election for regional

heads is drawn up. In this regard, the

election of regional heads is a stage

that provides room for deliberation and

then contemplates on determining

regional head leaders who also carry

out the task of bringing the direction of

change for the region concerned

towards prosperity.

The reality is that the decision-

making method in the election of

regional heads prioritizes the

deliberation and consensus system.

That is, decisions are applied on careful

thought from various groups or groups

in a contestation of ideas and opinions

in achieving common goals. Thus, the

Abd. Rahmattullah Rorano S. Abubakar, Atma Suganda | 1959

election of regional heads absorbs the

meaning that is based on the

deliberation of all the people so that it

is automatically coherent with the 4th

principle of Pancasila. The question that

then arises, philosophically, when it is

associated with the 4th precept of

Pancasila which mentions the term

"consultation/representation" as the

basis of reference in democracy, is how

the regional head election system is

coherent with the meaning contained

in the 4th precept of the Pancasila.

Democracy in the context of

Pancasila which contains noble

principles or values

(grundnorm/staatsfundamentalnorm)

is still at the normative-abstraction

level. values and moral principles that

develop in society.

2. The raison d'etre of the authority to

settle disputes over the results of

regional head elections remains with

the Constitutional Court

ConstitutionIn English, it is a term

that was first used in the Middle Ages

in England, which has its roots in the

Latin constitut which means

"established, appointed" which comes

from the verb constituere, con means

"together" and statuere means "set up"

so it can mean something. which are

organized and determined jointly. In

the Black's Law Dictionary, the

Constitution is defined as the

fundamental and organic law of a

nation or state that establishes the

institutions and apparatus of

government, defines the scope of

governmental sovereign powers, and

guarantees individual civil rights and

civil liberties (translation: The basic and

organic law of a nation or state that

establishes government institutions

and apparatus, defines the scope of

government of sovereign power,and

guaranteeing individual civil rights and

civil liberties).

If examined, it appears that in

decision Number 49/PUUXIV/2016, the

Constitutional Court has amputated its

own authority in handling disputes over

the results of regional head elections.

Therefore, in the follow-up legislation

product from the decision of the

Constitutional Court, the legislators

may not regulate the norm in such a

way again.

Based on the realities in the

formulation of the law above, it is

indicated that there are 'tricks' of

legislators so that the resolution of

disputes over the results of the regional

head elections remains within the

authority of the Constitutional Court.

In fact, compliance with the

decisions of the Constitutional Court

actually reflects the maturity of a

country that claims to be a state of law.

Thus, the decisions of the

Constitutional Court must be

interpreted and not given meaning. The

Urgency of Establishing a Special

Judicial Body for Disputes over the

Results of Regional Head Elections

1. Legal politics of the establishment of

the Constitutional Court

The term legal politics,

etymologically comes from the Dutch

term Rechtspolitiek. This term is a

formation of the words rechts and

1960 | Special Courts for the Settlement of Regional Head Election Disputes in the Context of

Realizing the Principle of Legal Certainty and Orderly Governane

politiek. In Indonesian, rechts means

law and politics contains policy. Based

on this explanation, legal politics is

briefly defined as legal policy. Legal

politics is the policy of state

administrators about what is used as a

criterion for punishing something. This

policy may relate to the formation of

law, the application of the law, or the

enforcement of the law itself.

One of the directions of national

legal politics launched by Indonesia

after the constitutional reform agenda

was to continue the legal reform

agenda. The areas of law that require

formation and reform are grouped

according to the areas required. This

field includes: politics and government,

economy and the business world, and

structuring systems and apparatus.

With this footing, the legal form that

needs to be drafted and updated is not

only in the form of laws and

regulations, but also the ecosystem of

high state institutions that are relevant

to implementation of the law itself. One

of them gave birth to a high state

institution that gave a new color to the

state administration system, namely the

Constitutional Court.

2. The build-up of the caseload and the

shift from constitutional courts to

electoral courts

The institutionalization of Article 18

paragraph (4) of the 1945 Constitution

of the Republic of Indonesia changed

the face of local democratic parties, one

of which was the direct election of

regional heads which was a

manifestation of the implementation of

people's sovereignty. Direct regional

head elections are expected to

encourage the growth of strong and

quality regional executive leadership

and accountability to the people (not to

certain groups) so that public policy

making is always oriented to the

interests of the people, and away from

Collusion, Corruption and Nepotism

(KKN).

In its implementation, direct

regional head elections create new

problems with violations that damage

the democratic system and order which

ultimately leads to disputes over

election results. Disputes over the

results of regional head elections since

2008 have been resolved through a trial

at the Constitutional Court, which was

previously the authority of the Supreme

Court. The existence of this transfer of

authority has led to many cases of

disputes over the results of regional

head elections that go to the

Constitutional Court because almost

every regional head election always

causes disputes regarding the

determination of the results issued by

the KPU.

3. Denial of the constitution as the basis

of the state

Based on Decision Number

97/PUU-XI/2013, the Constitutional

Court stated that regional head

elections are not included in the

general election regime. Furthermore,

the Constitutional Court has exercised

self-restraint by removing the

"additional authority" with the

argument that the authority of the

Abd. Rahmattullah Rorano S. Abubakar, Atma Suganda | 1961

Constitutional Court as a state

institution has been limitedly regulated

in Article 24C paragraph (1) of the 1945

Constitution of the Republic of

Indonesia. The Court stated that the

authority of the Constitutional Court in

adjudicating disputes resulting from

Regional head elections are contrary to

the 1845 Constitution.

4. Design of Special Courts for Disputes

over the Results of Regional Head

Elections in Order to Ensure the Quality

of Democracy.

a. Institutional design

Based on a comparative study, it

shows that the settlement of claims

resulting from the election through

the election adjudication process

has long been applied by various

countries, of course with their

respective characteristics. First, insti

tutional structure. Looking at the

relevance of comparative studies

that have been carried out, in the

context of the State of Urugay and

Costa Rica, the electoral court is

specifically stated in the

constitution, often as the fourth

branch of state power. Meanwhile,

in Mexico, the electoral court

structure is side by side with the

Supreme Court (Supreme Court) as

the holder of judicial power.

Second,the establishment of a

judicial body under the Supreme

Court must be regulated by law.

That is, the establishment of this

special court is institutionalized by

law. This is then emphasized in

Article 1 point 8 of the Law on

Judicial Power which states that

"Special Courts are courts that have

the authority to examine, hear and

decide on certain cases which can

only be established within one of the

judicial bodies under the Supreme

Court which is regulated in law. -

law".

b. Law of Procedure

Based on the grand design of

the special court as one of the sub-

systems of the State Administrative

Court, which culminates in the

Supreme Court and has limited

absolute competence in cases of

disputes over the results of the

regional head election, a procedural

law is needed that can support the

function of the judiciary itself. The

further explanation regarding this is

described as follows.

First, relative competence.

According to Sudikno

Mertokusumo, relative competence

is the distribution of judicial power

or the relative authority of judges

related to the jurisdiction of a

court.447 Talking about the relative

competence of a court is essentially

inseparable from the position of the

judiciary itself. This is because the

position of the court will be relevant

to its relative competence.

Second, despite all the

controversies, the High Court was

once given the authority to settle

disputes over the results of regional

head elections. Thus, positioning

the court specifically for dispute

resolution on election results to

merge with the PTTUN compared to

the historically more prominent

1962 | Special Courts for the Settlement of Regional Head Election Disputes in the Context of 
Realizing the Principle of Legal Certainty and Orderly Governane 
PTUN. 
Third, referring to the provisions 
of Article 48 jo. Article 51 of the Law 
on  State  Administrative  Courts 
opens  the  option  to  place  the 
PTTUN as  a court  of first instance 
(before entering legal proceedings 
in the Supreme Court).
CONCLUSIONS 
 
The  portrait of  dispute  resolution on 
the  results  of  regional  head  elections 
continues  to  experience  dynamics  along 
with  interpretations  of  the 
institutionalization  of  regional  head 
elections as  part of  the  general election 
regime or not. With regard to the urgency 
of establishing a special judicial body for 
disputes over the results of regional head 
elections,  the  author  finds  at  least  3 
urgencies in this regard, including: 1) Legal 
politics  of  the  Constitutional  Court,  2) 
Departing from the basic idea of a rule of 
law which is then elaborated further with 
the constitutionality of special courts and 
dynamics Sociologically, the settlement of 
disputes over the results of regional head 
elections, was born de lege feranda which 
regulates  special  courts  for  dispute 
resolution. 
 
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