Constitutional judge I Dewa Gede Palguna: Some Try to Delegitimize US
The election result dispute trial that kept the entire nation on its toes has finally reached an end.
The proceedings that went on from June 14 to 27 heard the case filed against the General Elections Commission (KPU) by Prabowo Subianto-Sandiaga Salahuddin Uno’s legal team for structured, systematic and massive fraud in the 2019 election. They were also convinced that they won the election with 52 percent votes.
The KPU as the respondent and the legal team of Joko Widodo-Ma’ruf Amin as the related party dismissed the suit as unfounded. Via live broadcast and online streaming, the public closely followed the unfolding courtroom drama that eventually culminated in the Constitutional Court’s verdict rejecting all the claims by the complainant. The panel of nine constitutional judges took turns to read out the 1,944 page-long verdict and unanimously declared that the Prabowo-Sandiaga camp had failed to validate its claims. “There was no cause for dissenting opinions,” said Judge I Dewa Gede Palguna during a special interview with Tempo.
The taxing marathon court sessions, including six that lasted all day, have drained the judges of all their energy. Even after the sessions, they had to continue to read carefully the court materials with the assistance of 10 court clerks. “I’m grateful that none of the judges fell sick,” said Palguna, 51.
Now that the trial is over, Chief Constitutional Justice Anwar and colleagues have a week to take a breather before they are back in court to tackle another round of legal disputes over the legislative election results starting July 9. Some of the judges chose to visit their hometowns, including Palguna. Taking time from his much-needed break, the Constitutional Court’s spokesperson sat down with Tempo’s Reza Maulana at his residence in Gianyar, Bali. In a one-and half-hour-long interview, Palguna talked about, among others, the courtroom incidents that were not seen in the broadcast, the difference between the current Constitutional Court in earlier days and now, and his relation with President Joko Widodo.
How did the constitutional judges reach the unanimous ruling in the case?
There was no cause for dissenting opinions. We saw the facts. Facts are factual, not interpretations like in judicial reviews. We also saw the evidences of postulates and they did not hold up. So how can there be dissenting opinions?
How did the ruling process go?
Each judge studied the case prior to the session. We constructed the case by looking at the postulates, arguments and evidences. From that, we prepared questions that were presented systematically during the sessions. After the fifth session on Friday, June 21, we held judges’ meeting that continued till Saturday and Sunday with the view to compile the verdict. In the meeting, we each presented own legal opinions, brainstormed and discussed. If there were any with dissenting views, usually we would have noticed already during brainstorming.
Were there any?
As far as I remember, no one was in favor of the case from the beginning. We did not have any differing views in terms of the case’s substance. We discussed the claims one by one. We studied the trial minutes, the evidences presented by the complainant to support their claims. It was relatively easy to reach the decision. Almost all the arguments needed little time to deliberate.
The argument presented by the complainant’s expert witness about the discrepancy in the comparison between the presidential and Regional Representatives Council (DPD) vote counts. They took the figures from C1 Form and believed that the forms could be adapted. But evidently, they used the data from KPU’s vote count system. When the judge asked why they compared the presidential and DPD—not DPR (House of Representatives)—vote results, they argued that they could not find the DPR data. Odd. Because the same source also provides the DPR vote results. All of us said, “well, this doesn’t make sense.”
Does it mean the judges’ deliberation meeting proceeded without debates?
Not really. We spent a lot of time debating qualitative aspects. For example, the complainant remarked that the Constitutional Court should not just focus on technical aspects like vote counts but also should look at the constitutionality of the election. The clause No. 1 of the article 22.e of the Constitution stipulates that the election must be held in a fair and square manner. If this principle is not somehow fulfilled in the election to elect the leader to uphold democracy, then the election process violated constitutional and democratic principles. More or less, that’s how the complainant built their argument. We needed several hours just to discuss that point.
And the result?
We did have difference of opinion. But eventually we agreed that such an argument should be left for judicial reviews and not incorporated in the election result dispute case. We also agreed to respond to all the arguments presented by the complainant although they were not directly related to the case so as to avoid more problems. As to how they received our responses, that’s another matter.
The complainant considers 14 days too short to prove their fraud claims...
That’s relative. In my understanding, they consider it to be too short because they want the court to not only handle the result dispute, but also the entire presidential election process. For the former, 14 days is sufficient.
Why did the court limit the number of witnesses to 15?
What’s the point of the complainant bringing in dozens of witnesses only to give the same testimonies? That’s why we left it to the complainant to pick the most relevant witnesses. We believe 15 is sufficient for the purpose. If we did not limit, it would violate the principle of election result dispute trial which is designed to be a speedy trial. Besides, these witnesses are only to point out vote discrepancies.
The number of expert witnesses were also restricted?
Actually, expert testimonies are not really necessary in election result disputes. They are really needed in judicial review cases. What do they want to explain in this case?
The third session on June 19 went on till the wee hours of the next day. How come?
(Laughs)… Yes. To allow the complainant to substantiate their argument. Otherwise, the respondent’s time the next day would be cut short. If the respondent presented the same lengthy testimony, well, we had to do the same but luckily, they did not (laughs)...
Why did you pressure the witness who claimed he was threatened?
It was important for me to make sure. It was as though people were being threatened for testifying at the Constitutional Court. He gave the impression that it was scary to participate in the Constitutional Court’s trial proceedings. That’s not good. Since established in 2003, the court has never had any witness feeling threatened for giving testimony. They wanted protection from the Witness and Victim Protection Agency (LPSK) but we did not see any reason. The LPSK is for criminal cases. If the court was convinced of the threat, we would request police protection. We’ve done that before in a regional head election dispute case back in 2015.
There were reports that witnesses were treated like isolated prisoners while at the court...
Isolated? Yes, indeed. But like prisoners? No. They felt like prisoners because they were not allowed to bring mobile phones. Let alone witnesses, even our employees were not allowed to carry mobile phones in the courtroom or when handling the case. They get their phones back when the office hours are over. That’s the standard. There were also many ministers in the waiting room during the dispute over the law. But yesterday it felt different because there were many people waiting too long. Everything we do is wrong. There’s always someone criticizing.
Why is the verdict this time is shorter than the 5,000 page-long 2014 presidential election dispute verdict albeit more charges this time?
There were more addendums containing vote tables in the 2014 verdict while we have more legal considerations this time with no vote table.
The judges deliberately omitted addendums?
The complainant did not provide any. How come we manufactured some, (chuckles)...
Hamdan Zoelva, former Constitutional Court chief justice called the 2014 presidential election dispute as his toughest case. Did the judges in this case also feel the same burden?
It’s the same. It seems the election has torn apart the public supporting the two candidates. That gave us a push to work harder to be able to respond clearly to all the complainant’s arguments. All the facts must be presented objectively and made easily accessible to the public. Besides live TV broadcasts, we also created an application so that the public can follow the sessions via YouTube. We wanted the trial to proceed in an objective and transparent manner especially because our independence, impartiality and integrity were at stake. From the start, some people tried to delegitimize us like they did to the KPU. We must not allow ourselves to be provoked.
Why was the Surah An-Nisa 135 (from Qur’an) displayed in front of the courtroom?
It was displayed ahead of the Ramadan fasting month. We were still in the month of Syawwal (a month following Ramadan) when the trial began. We did not get to remove it. Besides, the material did not come off easily.
It was not put up specially for this particular trial?
No. The employees used that room at the back to break the fast and pray tarawih evening prayers. The complainant happened to read it so it was coincidental, (laughs)... That was what happened. No need to make all sorts of assumptions.
Did you receive any threats during the trial process?
No. I thought about changing my mobile phone number just in case but nothing happened. Neither did my colleagues receive threats. There were many letters expressing hopes for this verdict or that verdict. That’s fine for me.
Even though they were filled with condemnation?
As bitter as they may sound, better than sounding apathetic.
Did the pressure from the presidential candidates’ supporters burden the judges?
Coincidentally, I’m one of the judges who joined the Constitutional Court first. I always remember the words of my senior, Dr. Maruarar Siahaan, that we must never be afraid of ruling a case as long as we do it with sincerity. I hold on to these words. No matter how hard a case is, if we don’t have any self-interest, we can rule any case with a clear conscience. A constitutional judge must rid himself of all self-interests and only abide by the Constitution. Otherwise, we will have cases that tarnish the court’s image.
Such as the cases involving Akil Mochtar and Patrialis Akbar?
There you go. No need for me to mention anymore, (smiling).
You returned to the Constitutional Court when it fell apart following Akil Mochtar’s case. How far has the image improved?
My assessment will be subjective but according to a survey, the public trust has reached 75 percent, putting us at No. 3 after the anti-corruption agency and the police. However, compared to that time, it has clearly improved. But we must not be complacent. We have to improve the quality of our rulings, in terms of both content and process.
Many constitutional law experts view that the Constitutional Court’s rulings in the earlier days were weightier. As a judge with the court during the period 2003-2008, do you agree with that view?
Yes and no. The merit of legal considerations for rulings largely depend on the case. Who would have thought that anyone would file a judicial review against the electricity law directly linking it to the article 33 of the Constitution resulting in the declaration that the entire law breached the Constitution? This is very fundamental.
Whereas the Constitutional Court is now more occupied with regional head election dispute cases.
Yes. What arguments can we present? Besides that, there is also the issue of style.
Constitutional judge I Dewa Gede Palguna: Some Try to Delegitimize US/TEMPO/Hilman Fathurrahman W
How were you elected personally by the president to be the constitutional judge?
For the first term (2003-2008), I was elected by the DPR. I was the member of Peoples’ Consultative Assembly (MPR) then. Actually, we first proposed Pak Harjono, who now heads the honorary board of the election organizers. Well, on the last day, Pak Harjono was picked by President Megawati as a constitutional judge. So, one more candidate from the DPR was needed. I was eventually selected alongside Pak Jimly Asshiddiqie and Pak Achmad Roestandi. After the term ended in 2008, I chose to continue my doctoral studies at the University of Indonesia. Then in 2015, I was praying at the family temple in Bangli on the Galungan day (a Balinese holiday), when I got a call from the state secretariat. The caller was someone named Cecep—I don’t know him nor his full name—who asked me to participate in the selection process.
To succeed Hamdan Zoelva?
Yes. His tenure ended and he did not want to take part in the selection again. Pak Cecep asked me to decide right then and gathered all the documents the next day. I followed the instructions. Two weeks later, as I was undergoing the thesis review, I got an SMS from Pak Pratikno, the state secretariat minister. I forgot that I had followed the selection and thought he wanted to visit Udayana. It turned out he wanted to inform me that Pak President had picked me.
Did you meet President Jokowi before?
Not at all. I didn’t know Pak Pratikno either. I don’t know why he chose me. I met him for the first time at the swearing-in ceremony.
What did the two of you talk about that time?
President asked my view about being a constitutional judge. I said once a candidate is elected—whether by the DPR, President or the supreme court—to be the constitutional judge, he should bow to the Constitution only, no other parties including the president.
What is his reaction?
He said with a laugh, “That’s what I want to hear,” (chuckles)…
Jokowi grabbed 90 percent of the votes in Bali in the election. Are you of the majority?
Uh, I can’t discuss that. It’s a secret.
What’s the story behind your acting role in Noesa Penida in 1988?
It was just a small role. I was a civil servant candidate waiting to become a lecturer that time. The director, Pak Galeb Husein, was seeking a local to play in a film he was directing in Bali and contacted Sanggar Putih theatre group. I used to perform in plays routinely then. I don’t know how but I was selected to play the role of Ray Sahetapy and Gusti Randa’s friend.
Followed by Beyond the Ocean by Ben Gazzara from Italy in 1990…
I was just a helper there. They asked me to stay put to play as a gas station attendant but that didn’t happen.
Constitutional Court Chief Justice Anwar Usman also once played some movie and theatre roles. What is the connection between being a constitutional judge and acting?
(Laughs)… We got to use our theatrical skills. As theatre artists, we are trained to produce vocal sound from the abdominal cavity. When I have flu and need to read the verdict, I use that sound so I don’t sound sick and I could control the intonation. Theatre players are also trained to quickly interpret and grasp the meaning of a given script. That skill helps us understand a case faster. There you have it to connect the two, (laughs)…
I Dewa Gede Palguna
Place and date of birth: Bangli, Bali, December 24, 1961 | Education: Bachelor of Law, Udayana University (1987); Master of Law, Padjadjaran University (1994); Doctor of Constitutional Law, University of Indonesia (2011) | Career: Lecturer, Faculty of Law, Udayana University (1987-now), Member of MPR (1999-2004), Constitutional Judge (2003-2008 and 2015-2020) | Award: Bintang Mahaputra Utama (2009) | Publications, among others: Pengaduan Konstitusional (Constitutional Complaints) (2013), Mahkamah Konstitusi (Constitutional Court) (2008), Saya Sungguh Mencemaskan Bali (My fear for Bali) (2008).