In Indonesia, the Election Oversight Committee (Bawaslu) serves as the chief election oversight body. It is now a permanent body at the national level. In the lead up to each election, Bawaslu establisheds ad hoc committees (Panwaslu) at the provincial and district levels.
Panwaslu committees are established 30 days prior to the commencement of local executive elections implementation, or 210 days prior to elections. The committees are responsible for monitoring all stages of the election process and for passing on reports of violations to the appropriate authorities. While only the Constitutional Court has the power to adjudicate disputes over election results, Panwaslu is responsible for dispute resolution during all other stages of the local executive elections. This difference in function between elections has cause a great amount of confusion. Each Panwaslu committee consists of three members. The national oversight committee is responsible for appointing the members, but the nominations are provided by the local election commission. Administrative support staff are seconded from government agencies for the duration of the election organizing period.
Panwaslu responsibilities are specified in Law No 22/2007 on Election Administration. According to the law, the duties of the district and municipality election oversight committee are:
(a) Supervising all stages of election implementation including (i) updating voter data based on population data and affirmation of preliminary voters’ register and final voters’ register; (ii) candidate nomination; (iii) candidate verification; (iv) campaign implementation; (v) election supplies procurement and distribution; (vi) voting; (vii) supervision on the whole process of vote counting; (viii) movements of ballot papers from the polling stations to PPK; (ix) vote recapitulation; (x) recounts, re-voting, second, and make up elections as required; and (xi) affirmation of election results;
(b) Receiving reports on violations of election laws or regulations;
(c) Managing findings and reports concerning disputes on non criminal election matters;
(d) Submitting findings and reports to KPUD for follow up;
(e) Conveying findings and reports beyond the Panwaslu mandate to relevant authorities;
(f) Submitting reports to Bawaslu regarding any compromise of the election process by election implementers;
(g) Supervising the imposition of sanctions on staff found to have acted improperly;
(h) Supervising voter education activities
Controversially, Panwaslu has been made responsible for the resolution of disputes emerging during any stage of local executive elections—a responsibility that it does not have in other elections. Election related disputes are those which occur during implementation and are to be distinguished from disputes over election results, which can only be adjudicated by the Constitutional Court. Election-related disputes typically arise from conflicting interpretations of electoral laws and regulations. For example, the most common type of dispute to come before Panwaslu is one in which candidates have conflicting views over the delimitations of a campaign zone, i.e. two candidates both claim a particular site. If one candidate is clearly campaigning outside the boundaries of his/her zone then this constitutes an administrative violation to be referred to the local election commission. But if the campaign boundaries have been unclearly specified by the local election commission, then this becomes a dispute that Panwaslu has the power to adjudicate.
Bawaslu has issued regulations outlining Panwaslu’s role in dispute resolution during the conduct of local executive elections. According to Bawaslu regulations, sub national Panwaslu committees are to observe the following steps in resolving disputes:
(i) Receive report from complainant
(ii) Seek clarification
(iii) Examine report to assess whether complaint relates to (a) criminal violation, (b) administrative violation, or (c) dispute
(iv) Negotiate an acceptable agreement between parties to the dispute
(v) If no agreement, make final and binding decision
(vi) Publish the written agreement or decision (berita acara)
While the new regulations are clear, their implementation has proved to be a challenge. This is because Panwaslu committees do not have the expertise needed to properly adjudicate election-related disputes. Another concern is that while Panwaslu decisions are final and binding on the parties to the dispute, Panwaslu has no power of enforcement. If parties to a dispute choose to ignore Panwaslu’s decision, there is nothing that Panwaslu can do about it. In the most recent rounds of direct executive elections, only a handful of the estimated 1636 rulings by Panwaslu committees have been followed up by the Local Elections Commissions or local law enforcement agencies. The law does not specify a mechanism for dealing with such situations. Panwaslu clearly cannot be effective in resolving disputes unless it has the power to ensure compliance with its decisions.
Ben Hillman, Electoral Governance and Democratic Consolidation in Indonesia, The Indonesian Quarterly Vol. 39 No. 3, 2011, https://crawford.anu.edu.au/pdf/staff/ben_hillman/2013/Electoral-Governance-and-Democratic-Consolidation-in-Indonesia.pdf.
PDF : Handbook on Election Result Dispute Settlement (Constitutional Court of the Republic of Indonesia)
PDF : Decree of the Election Supervisory Committee no. 13/ 2003 on Dispute Resolution Mechanism
PDF : The Resolution of Disputes Related to “Election Results”: A Snapshot of Court Practice in Selected Countries Around the World (IFES: 2004) – This paper intends to provide the Indonesian Constitutional Court with guidance for the resolution of disputes related to election results, by providing baseline information to fuel the debates in a workshop organized by IFES.