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This work is licensed under a Creative Commons Attribution 4.0 International License. 

Judicial Activism in Regional Head Election Dispute: 
The Practice and Consistency of The Indonesian 

Constitutional Court 
 

Amiruddin,1 Rizki Ramadani 2Ω 

 
1Faculty of Law, Universitas Islam Makassar, Indonesia 

2Faculty of Law, Universitas Muslim Indonesia, Indonesia 
 

Ωemail correspondence: rizkiramadani@umi.ac.id  

 
ABSTRACT 

The Constitutional Court's approach towards regional head election disputes is regarded as quite 

progressive and illustrates the growing trend of judicial activism. This article attempts to analyze 

the practice of activism by the Constitutional Court in the context of regional head election 

disputes and assess its consistency in simultaneous elections. This study uses a conceptual, 

statutory and case approach in analyzing several regional head election dispute decisions in 

2020. The activism of the Constitutional Court in the context of regional head election disputes is 

at least practiced by judges through three things: first, the determination taken by the 

Constitutional Court to decide on re-voting and re-counting of votes; second, the willingness of 

the Court to consider election offenses that are structured, massive, and systematic; and third, 

the courage of judges to disqualify regional head candidates as well as determine the winner to 

provide legal certainty. This practice of activism is still being consistently pursued by judges in the 

2020 simultaneous regional head elections. Even so, there is a tendency that structured, 

systematic and massive violations are not the main reason for terminating the election results, 

and even tend to be complicated by judges who demand more significant evidence. This condition 

will cause the burden of proving the structured, systematic and massive offenses to be much 

heavier in the future. This seems to be contradictory to previous decisions of the Constitutional 

Court which were known to prioritize substantive justice.  

 

Keywords: Judicial Activism; Constitutional Court; Election Dispute; Election Offense. 

 

Date of Submission: March 12, 2023 Date of Publication: June 19, 2023 

DOI: http://dx.doi.org/10.56087/substantivejustice.v6i1.230  

 

INTRODUCTION  

Regional head elections, in line with the local democratization agenda, are a means of 

fulfilling people's sovereignty in order to support democratic local governance (Shayo, 2012). The 

"democratic" indicator in the implementation of regional head elections can be measured by the 

compatibility of election implementation with the election principles stipulated in Article 22E 

paragraph (1) of the 1945 Constitution, which includes the principles of direct, general, free, 

confidential, honest, and fair. (Kosandi & Wahono, 2020; Lele, 2019) On this basis, an electoral 

https://creativecommons.org/licenses/by-sa/4.0/
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http://dx.doi.org/10.56087/substantivejustice.v6i1.230


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Judicial Activism in Regional…  | 57  

governance system is needed to ensure the implementation of elections is not only in accordance 

with procedures, but also fair and obedient to the principles (Hartlyn et al., 2008). This includes 

the establishment of an independent election committee and regulations that guarantee this 

independence (Nelson, 2023; Ramadani, 2020), ensuring that elections are conducted in 

compliance with appropriate legal procedures, including the provision of a dispute resolution 

mechanism that ensures legal certainty and justice (Mozaffar & Schedler, 2002). 

Regional head elections should be celebrated as a democratic party for every local 

community as an essential democratic ritual. However, it is impossible to deny that the regional 

head election is also a political struggle that brings together prospective regional heads with 

diverse perspectives and objectives. Regional head elections, which are designed to set ideas 

against each other, frequently devolve into a contest of financial capacities or a struggle of 

followers, resulting in horizontal conflict. This is exacerbated by the proliferation of money-politics 

(Hidayaturrahman et al., 2022), clientelism (Bakker, 2021; Mahsun et al., 2021), and patronage 

in regional head election (Lewis, 2020). The implementation of regional head elections in various 

regions in Indonesia was accompanied by various violations, both committed by election 

organizers, regional head candidate participants and their masses of supporters (Kusdarini et al., 

2022).  

In its development, various violating practices in the post-conflict local election have 

resulted in regional head election disputes. Since it was first held on June 1, 2005, the holding of 

regional head elections has almost always been followed by lawsuits over regional head and 

deputy regional head election disputes (Firmanto et al., 2021). For example, out of around 270 

regional head elections that were held during 2020, there were 132 post-conflict local election 

results being challenged at the Constitutional Court. 

In the construction of Indonesian law, disputes in elections are divided into two 

categories: process disputes and election result disputes. According to Article 466 of Law Number 

7 of 2017 concerning General Elections (Election Law), process disputes are disputes that occur 

between election participants and disputes between election participants and election organizers 

as a result of the issuance of decisions by the General Election Commission (KPU), Provincial 

KPU, and Regency/City KPU. Meanwhile, disputes over general election results are regulated in 

Article 473; in this context, they are defined as disputes between the regional head election 

administration and participants regarding the determination of the vote acquisition of post-conflict 

local election results. 

In practice, the mechanism for resolving disputes over post-conflict local election results 

has experienced a change in the legal regime. In the early stages of democratization, post-conflict 

local election disputes were handled by the Supreme Court (MA) as the executor of judicial power 

as mandated in Law Number 32 of 2004 concerning regional government. The authority to decide 

post-conflict local election disputes (disputes over post-conflict local election results) is only 



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58 |  Judicial Activism in Regional… 

owned by the Constitutional Court after the third amendment to the Regional Government Law 

(Law Number 12 of 2008). (Ayuni, 2018; Junaidi, 2010).  

Initially, the handling of disputes over regional head election results by the Constitutional 

Court drew sharp criticism from various groups. This criticism targets the narrow interpretation of 

the Constitutional Court on the meaning of the phrase "election results" which is only interpreted 

as "a dispute regarding the determination of election results carried out nationally by the General 

Election Committee (KPU)". This has resulted in the nickname "calculator court" for the 

Constitutional Court, which solely assesses the suitability of the process of determining the vote 

count results of election participants by the organizers. but neglected to examine allegations of 

violations that occurred during the electoral process. Thus, the Court only relies on quantitative 

indicators (number of votes) in handling the election disputes, no longer as a judicial power whose 

duty is to guard the quality of democracy as mandated by the constitution.  

On its journey, this view slowly faded along with the progressiveness of the Constitutional 

Court's decisions on how regional head election disputes were handled. For example, in the 2008 

East Java Regional Head Election Dispute Decision (Decision Number 41/PHPU.DVI/2008, 

December 2, 2008), the Constitutional Court ordered re-voting in two districts (Bangkalan 

Regency and Sampang Regency) and a recount of the votes in Pamekasan Regency because it 

was considered that there had been structured, systematic, and massive violations. This decision 

is also the first time the Constitutional Court has ordered a re-voting and recount of votes. If we 

look at the considerations of the decision, the judges seem to eager to counter the previous 

accusation that the Constitutional Court is not a "calculator court" that can be confined by a narrow 

interpretation of the law, but that it still has the dignity of being the guardian of the constitution 

and democratic values, so it is appropriate to question the aspect of electoral justice (Reininda, 

2021b). 

The progressivity of the Constitutional Court's authority in deciding disputes over election 

results, especially regional head elections, continues to grow rapidly. Decisions similar to the East 

Java regional head election have been issued by the Constitutional Court, which is considered to 

have contributed a lot to the development of democracy in Indonesia. This was done by the Court 

by correcting the implementation of the election, which was not limited to determining the results 

of the general election (procedural democracy), but also the process of voting and counting 

(conversion) of votes by determining the qualifications for a structured, massive, and systematic 

violation. In other words, there was a legal breakthrough made by the Court to ensure that the 

vote results as determined by the General Election Commission were in accordance with the will 

of the people without any manipulation, intimidation, or cajoling that could harm the true meaning 

of democracy (substantial democracy) (Kartabrata, 2022).  

 When compared to the 2004 disputes over legislative election results, Constitutional 

Court judges used a procedural justice approach. Different things can be seen in a number of 



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disputed decisions on regional head election results in 2009, where the Constitutional Court 

tended to use a substantial justice approach by questioning electoral process violations (election 

offenses). This step was not free from controversy and was even considered to have exceeded 

the limits of the constitutional court's authority (ultra vires and ultra petita) (Ali et al., 2016). On 

the other hand, this kind of phenomenon has also given rise to speculation about the existence 

of a judicial activism movement by the Constitutional Court (Mietzner, 2010).  

Based on the background of the issues above, this article attempts to analyze two 

problems: first, what are the efforts of judge activism carried out by the Constitutional Court in the 

context of post-conflict local election disputes; and second, what is the consistency of the judge's 

activism in the context of the 2020 simultaneous local elections? Based on the author's 

investigation, there have been several studies conducted related to the topic of the activism of 

Constitutional Court judges, including writings from Pan Mohamad Faiz, which address the 

dimensions of the judicial activism of the Constitutional Court to protect citizens' constitutional 

rights through their decisions (Faiz, 2016a). In addition, there is an article from Prabowo, which 

outlines the importance of judge activism by the Constitutional Court in decisions regarding the 

presidential threshold (Prabowo, 2022), and Rofiq and Hamidah who discussed the same topic 

but in the context of the Constitutional Court's decision on children out of wedlock (Rofiq & 

Hamidah, 2021). In comparison, Dramanda has actually initiated an idea that contrasts with the 

studies mentioned earlier, namely judicial restraint which should be formalized within the 

institution of the Constitutional Court (Dramanda, 2016).  

In terms of originality, no studies have been found that specifically discuss judicial 

activism in the context of regional election disputes and,  at the same time, evaluate the 

consistency of the constitutional court’s activism in deciding disputes in simultaneous regional 

elections. In fact, this issue is quite important and relevant to assess how far the authority of the 

Constitutional Court has developed in deciding regional head election disputes, does it continue 

to experience progressiveness or even become degressive? Departing from this urgency, this 

study intends to offer a new perspective on filling the gap. 

 

METHOD 

As legal research, this study utilizes secondary data obtained from literature studies on 

legal material, which includes primary legal material in the form of relevant laws and regulations 

and judge's decisions, as well as secondary legal material, which includes journal articles and 

previous research results. Data analysis uses a conceptual approach and a case approach. 

Conceptually, this study seeks to formulate parameters or criteria based on the theory of judicial 

activism to analyze and justify the decisions of the Constitutional Court in a number of cases that 

meet these criteria. Furthermore, the existing parameters will be an indicator of the consistency 

of the substance of decisions in election dispute cases in the 2020 simultaneous local elections. 



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In terms of its nature, this research is descriptive-analytical in nature and seeks to describe the 

form of activism of Constitutional Court judges in post-conflict local election disputes and analyze 

its consistency in simultaneous regional head election disputes in 2020. 

   

ANALYSIS AND DISCUSSION 

A. Judicial Activism and Its Practice by the Constitutional Court in the Regional Head 

Election Disputes 

Based on a literature search, the concept of judicial activism was popular in the 20th 

century but was known long before. According to Kmiec, who specifically researched the 

origins of judicial activism, the term was first coined by Arthur Schlesinger, an American 

historian, public intellectual, and social observer, in 1947 in an article in Fortune magazine  

(Josev, 2017; Kmiec, 2004).  From various literature searches, formulating a definite and 

representative definition of the term judicial activism is not an easy matter. According to 

Bolick, everyone has their own take on the phenomena of judicial activism. He then gives a 

reasonably clear description, namely, the situation in which the court invalidates a statute 

that breaches individual rights or the constitutional restrictions of other branches of 

government (Bolick, 1994).  

Thirlway, for example, proposed a more general definition in his paper titled 'judicial 

activism and the International Court of Justice', stating that judicial activism refers to the 

approach used by judges in handling a case by maximizing the function of judges as 

lawmakers with a logical interpretation and (if necessary) goes beyond an authentic 

interpretation of the law in favor of something more substantive (Thirlway, 2022). He went 

on to say that activist judges are those who still believe that the duty of the court is to proclaim 

laws, not to make them. However, under specific conditions, they will not hesitate to broaden 

or direct the meaning of the law in order to obtain the desired result. This is done because 

activist judges are dissatisfied with the current rules and regulations, or if it is determined 

that there is a legal vacuum, and they are always ready to make the required legal 

breakthroughs as the foundation for their rulings (Thirlway, 2022).  

The judicial activism movement is a prominent school of thought in Anglo-American and 

Indian countries because of its ability to accomplish substantive justice rather than justice 

according to the law (procedural justice), which is frequently selective and arbitrary on the 

side of the populace. societal minorities and marginalized groups (Amarini, 2019). An 

understanding of judicial activism can also be compared with the idea of judicial restraint as 

its antithesis. In contrast to the idea of judicial activism, which supports the freedom of judges 

to make decisions based on their beliefs, judicial restraint emphasizes that judges must 

refrain from positioning themselves as legislators and only interpret what is necessary 

according to a doctrinal or formalistic justice approach (King, 2008). 



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Nonetheless, many people believe that the notion of judicial restraint, as opposed to 

judicial activism, dominates the arena of justice in Indonesia. This is due in part to the 

Indonesian legal system, which is typical of civil law and in which judges support the bouch 

do loi concept, therefore judges choose to refrain and refuse to take on legislative obligations 

in enacting laws. Meanwhile, judicial activism in the civil law legal system is undemocratic 

and breaches the principle of separation of powers (Rodríguez-garavito, 2011). On the one 

hand, this kind of attitude is good for avoiding abuse of power by judges who take over 

legislative authority as positive legislatures (Buana, 2020; Claus & Kay, 2010), but on the 

other hand, excessive restrictions can result in the judge's decision being dry with 

progressive considerations and far from true justice.  

In the context of Indonesian constitutional courts, judges apply the trend of the two 

perspectives above in deciding various cases involving disputes over regional head election 

results. The first inclination is for judges to refrain from interpreting anything other than what 

is stated in the terms of the laws and regulations, both materially and formally; in this case, 

the judges emphasize procedural or formalistic justice (restrictive judges). Second, in some 

situations, judges behave as activists, abandoning formal legal rules in order to achieve far 

more important aims (active judges). In practice, judicial activism is frequently praised since 

it frequently breaks the deadlock between a handful of constitutional issues, and activism 

decisions are frequently become landmark decisions (Faiz, 2016b). 

In the context of regional head election dispute resolution at the constitutional court, the 

practice of judicial activism is reflected in several decisions. One of the phenomenal is 

Constitutional Court Decision No. 41/PHPU.D-VI/2008 concerning Disputes over the Results 

of the General Election of Regional Heads of East Java, dated February 2, 2008. In this case 

of dispute over the results of the regional head elections, the Constitutional Court did not 

determine the correct vote count results, according to the Court, but instead issued a decision 

that ordered the counting of votes and re-voting in several designated electoral districts. This 

is the first time the Constitutional Court has done this in the context of an election dispute. 

The activism side of the judges' decision on the dispute over the East Java regional head 

election can be seen in the judge's considerations when making the decision, which were 

not based on mere differences in the number of votes as stipulated in the legislation but on 

the judge's belief that a structured, massive violation had occurred and systematically in the 

voting process, which has an impact on vote acquisition. Thus, for the first time, judges have 

stepped out of the corridors of their authority by considering other aspects apart from the 

problem of the vote count. In fact, the provisions of the legislation at that time, namely Law 

No. 32 of 2004 concerning Regional Government, Law No. 22 of 2007 concerning General 

Election Organizers, and Government Regulation No. 6 of 2005 concerning Election, 

Confirmation of Appointment, and Dismissal of Regional Heads and Deputy Regional Heads, 



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stipulate that if there is a violation in the general election process, it must be resolved through 

the district or city supervisory committee. If the violation contains a criminal element, it must 

be forwarded to the investigator. 

Referring to the provisions of the existing laws and regulations, the court actually has no 

authority to try the case based on the fact that there was a violation in the election process. 

Nevertheless, the judges are of the view that the prohibition to deal with cases of violations 

and criminal acts in regional head elections must mean that the Constitutional Court may not 

carry out the functions of criminal justice or administrative justice but may still examine and 

adjudicate any violations in the administration of elections, which includes the process of 

collecting and counting votes, which affect the vote count result. Furthermore, the judge 

attempted to legitimize his considerations by quoting Radbruch's view that, as guardian of 

the constitution, the court must not allow formal-procedural provisions (procedural justice) to 

hinder the achievement of greater justice (substantive justice). 

The aforementioned situation demonstrates that judges have dared to leave conventional 

interpretations of the legal constraints on their jurisdiction in favor of interpretations that, in 

their opinion, can achieve larger purposes. Nonetheless, many parties claimed that the ruling 

exceeded the Constitutional Court's authority and went beyond the scope of the claims filed 

(ultra petita) (Harijanti, 2010). Even the Constitutional Court's decision can be said to have 

castrated the authority of the Oversight Committee and investigators who have the authority 

to handle election administrative and criminal offenses. 

This phenomenon at the same time confirms one of the characteristics of judicial activism 

as stated by Canon, namely the existence of dimensions Specificity of Policy (Cohn & 

Kremnitzer, 2016), whereby the Constitutional Court judges, in their decisions, formed their 

own paradigm to decide based on violations in the process of administering elections that 

broke through the principle of discretion or authority possessed by other institutions, in this 

case the Election Supervisory Committee and Investigators. In several subsequent 

decisions, the MK judges attempted to clarify this matter as stated in the considerations of 

Decision Number 190/PHPU.D-VIII/2010 concerning the regional head election of 

Pandeglang Regency. In this decision, the judge stated that the cancellation of the election 

results or regional head election due to structured, systematic, and massive violations had 

absolutely no intention of taking over the authority of another judicial body. The judge argued 

on the argument that the court only took those violations that were proven to have an impact 

on the results of the regional head election but still limited itself from imposing criminal or 

administrative sanctions on the perpetrators (Kasim et al., 2021).  

The same thing is also reflected in the case of the regional head election dispute in Kota 

Waringin Regency. In Decision Number 45/PHPU.D-VIII/2010, the Constitutional Court again 

reaped pros and cons because it disqualified one of the candidate pairs for Regent and 



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Deputy Regent and ordered the election organizers, in this case the General Election 

Commission of West Kotawaringin Regency, to issue a decree stipulating the other 

candidate pairs as elected Regent and Deputy Regent. Usually, the Constitutional Court's 

decision only disqualifies candidates who are suspected of committing violations and orders 

a re-vote, but in this case, the Court went even further by designating one of the parties as 

the winner of the regional head elections. The main rationalization of the trial judges was that 

there had been structured, systematic, and massive violations in almost the entire area of 

West Kotawaringin Regency committed by the disqualified candidate pairs. The violation was 

so serious that it had a systemic and massive impact on democracy and undermined the 

principles of direct, general, free, confidential, honest, and fair elections. 

Referring to the provisions of Article 24C of the 1945 Constitution and Article 10 

paragraph (1) letter d of Law No. 24 of 2003 concerning the Constitutional Court, it is clear 

that the Constitutional Court does not have the authority to determine the winner of regional 

head elections but only determines the results of the correct vote count according to the 

Constitutional Court. This was solely done by the judge with the consideration of avoiding a 

legal vacuum while guaranteeing legal certainty for the community regarding the winner of 

the regional head election in West Kotawaringin. Based on the results of Noorwahidah's 

analysis, the Constitutional Court's decision was the result of the judges' effort to produce 

greater benefit for society (Noorwahidah, 2010). 

Another noteworthy aspect of the two activism decisions above is the emergence of the 

terms structured, systematic, and massive in the consideration of the decisions. This is 

important because such violations become a stepping stone for judges to decide disputes 

over regional head election results with nuances of activism. The parameters regarding these 

structured, systematic, and massive violations have not yet appeared in the East Java 

regional head election decisions but have begun to be defined along with the increasing 

intensity of similar decisions. The definition of these terms can be found, among others, in 

Decision Number 45/PHPU.D-VIII/20103232 concerning Disputes over the Results of the 

General Election for the Head of the West Kotawaringin Region. The “structured” nature is 

defined as violations that have been carefully planned and involve officials and election 

organizers in stages. "Systematic" refers to violations committed with careful planning and 

using a good strategy. While “massive” is recognized as a violation committed in a 

comprehensive manner with wide area coverage (Rudy & Purba, 2014).    

 

B. Consistency of Constitutional Court Activism in Deciding Simultaneous Regional 

Head Election Disputes 

The intense competition between political parties to secure seats in office is described as 

one of the triggers for judge activism in the context of election disputes in the by Tate and 



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64 |  Judicial Activism in Regional… 

Valinder study as cited by Faiz (Faiz, 2016a). This spurred a number of lawmakers to file a 

lawsuit, which compelled the judiciary to engage in the election controversy and resulted in 

significant improvements thanks to a judge's decision. 

This also explains the proclivity for requests for disputes over the results of regional head 

elections, in which participants frequently include administrative infractions, criminal offenses 

and conflicts during the election phases as grounds for litigation. In fact, all those issues are 

beyond the Constitutional Court's jurisdiction and should be resolved through the criminal 

justice system's mechanisms by police, public prosecutors, and criminal courts. Meanwhile, 

administrative violations can be resolved through the Regional General Election 

Commission. While disputes in the election process or stages are resolved through the 

Election Supervisory Body or the Election Supervisory Committee, However, due to the 

structured, systematic, and massive nature of the violations, in order to uphold democratic 

values, the Constitutional Court considered it necessary to grant such a request and annul 

the results of the regional head election. 

Despite the uproar, the Constitutional Court judges' action has garnered a lot of acclaim 

and respect. Especially in its endeavors to promote substantive justice rather than being 

limited to procedural law. The Constitutional Court's progressive judgements in protecting 

electoral law and democracy have resulted in numerous legal breakthroughs. On that basis, 

it's worth looking into the consistency of the Constitutional Court's judgements during the 

2020 simultaneous regional head elections. This consistency is critical in order to keep 

democracy moving forward, to ensure legal certainty, and, of course, to maintain the integrity 

and dignity of the Constitutional Court itself. 

On December 9, 2020, regional head elections were held concurrently. In principle, the 

stages of simultaneous regional head elections are identical to the conventional regional 

head election model. It's merely that in 2020, simultaneous regional head elections will be 

held in the midst of the COVID-19 pandemic, with the necessity to follow the health protocol. 

On that premise, the conduct of the 2020 simultaneous regional head elections has yielded 

several benefits and drawbacks, as well as numerous infractions, both in the election context 

and in violation of health protocols (Ramadani & Rezah, 2021). A total of 270 regions held 

regional head election contests, with details of 9 provinces, 224 regencies and 37 cities.  

According to KoDe Inisiatif study, 136 cases of regional head election disputes were 

brought to the Constitutional Court. Of the 136 cases presented to the Court, the court 

granted 18 (eighteen) requests, the majority of which included the judge's order to conduct 

a re-vote, while one ruling ordered a vote recount (Reininda, 2021a). This finding suggests 

that the Court does not hesitate to overturn the General Election Commission's regional head 

election results, and that it remains consistent in deciding on a re-vote if an error is suspected 

in the regional head election process.  



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In addition to re-voting, in its decision, the Constitutional Court again disqualified one pair 

of candidates, as occurred in the regional head election dispute case in Boven Digoel 

Regency, Papua Province. However, the reason for the disqualification is not based on any 

violations committed by those concerned, but because administratively they do not meet the 

requirements for candidacy, namely the waiting period for ex-corruption convicts. In the a 

quo case, the pair of candidates who were disqualified were ex-convicts in a corruption case 

who in fact had not passed the 5-year gap when registering as candidates for Boven Digoel 

Regent in 2020, where the 5-year gap should have ended after January 26, 2022. Thus, 

violations were actually committed by election organizers, in this case the General Elections 

Commission. This is as stated in the decision 132/PHP.BUPXIX/2021, where in its 

conclusion, the judge stated that there had been a violation in the decision letter and decision 

letter of the Boven Digoel General Election Commission regarding the determination of the 

pair of candidates in question as contestants for the election of the Regent and Deputy 

Regent of Boven Regency Digoel of 2020. 

Coincidentally, in the Boven Digoel case, the applicant was the pair of candidates whose 

votes were second in number (9,156 votes) below the disqualified candidate pair (16,319 

votes). However, the judge did not immediately determine the applicant as the winner of the 

local election, as in the case of the dispute over the results of the regional head election in 

West Kotawaringin Regency. In his decision, the judge only ordered the General Election 

Commission of Papua Province and the General Election Commission of Boven Digoel 

Regency to conduct a re-vote for the Regent and Deputy Regent of Boven Digoel without 

involving the disqualified candidate pairs. This is most likely due to the fact that after the 

disqualification of one candidate pair, three other candidate pairs remain, so voting can still 

be carried out again. It is different from the case in Kotawaringin, which only had two pairs 

of candidates, where if one of them is disqualified, then only a single candidate will be left. 

Furthermore, there is a substantial difference between the decision to annul the results 

of the 2020 simultaneous regional head election and the decisions of the Constitutional Court 

in the previous regional head election. Even though they consistently decided on re-voting, 

the arguments relating to structured, systematic, and massive offenses involving money 

politics, mobilization of the state civil apparatus, pork barrels, or the partiality of regional head 

election organizers were not the main factors in the judge's considerations. This is 

exemplified by the dispute over the results of regional head elections in Banjarmasin 

Regency. The judge ordered a re-vote in his decision Number 21/PHP.KOTXIX/2021 on the 

Banjarmasin regional head election. It's only that it appears the judges are still doubting a 

variety of reasons surrounding the applicant's allegations for a structural, systematic, and 

massive offense. 



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In the case of the simultaneous regional head election dispute case in Banjarmasin, the 

applicant in principle argued that there had been a structured, systematic, and massive 

violation, which included: 1) misuse of social assistance and direct cash assistance 

committed by related parties; 2) There was misuse of the Banjarmasin Municipal 

Government's videotron for the sake of imaging incumbents (related parties) during the 

campaign period; 3) There has been a deployment of civil apparatus and cleaning staff with 

the aim of winning over the related parties. 4) There was fraud in the voting and vote counting 

process, including voter mobilization, which was known from the high number of additional 

voters and the large number of voters who did not meet the requirements, which was 

detrimental to the petitioner's vote acquisition..  

Of the three arguments of the applicant above, only argument number four was accepted 

by the judge, while for the other three violations, the judge stated that the evidence and facts 

presented before the trial were insufficient. For example, in relation to the misuse of social 

assistance and direct cash assistance, the court stated that even though the incident had 

actually occurred, there was no evidence to justify the existence of a directive from the 

related party as the incumbent mayor to instruct the State Civil Apparatus (ASN) to campaign 

for himself or influence voters as the recipient of the assistance. In the context of the 

argument for videotron abuse, the Court stated more or less the same thing: 

“Not finding evidence that the incumbent ordered his staff to abuse the videotron with the 
aim of campaigning for himself through city government facilities..”. 

Regardless of the judge's belief in the truth of those arguments, the considerations of the 

Constitutional Court tend to complicate efforts to prove the arguments for violations that are 

structured, systematic, and massive in nature. In fact, proving structured, systematic, and 

massive violations is considered quite difficult because it must link evidence with all the facts 

that emerged during the trial and must be cumulative (Carolina & Maryanah, 2022; Kasim et 

al., 2021). As a comparison, Article 15 of the General Election Supervisory Agency 

Regulation Number 9 of 2020 states that structured, systematic, and massive elements must 

be interpreted cumulatively by the existence of evidence showing violations in at least 50% 

(fifty percent) of districts or cities for provincial regional head elections and 50% (fifty percent) 

of the sub-districts within 1 (one) regency or city for the election of the regency or city regional 

head. In short, the complainant must be able to prove that the TSM elements actually occur 

in full in at least 50 percent of the districts or electoral districts. With such provisions, it is 

hard to present quality evidence in a very limited time. 

This contrasts with the Constitutional Court's decision no. 41/PHPU.D-VI/2008 on the 

dispute over the results of regional head elections in East Java. In considering his decision, 

the judge acknowledged that during the evidentiary process, the petitioner was unable to 

provide evidence to support the results of his calculations. So that the argument for violations 



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was not formally proven, however, the judge still believed that materially there had been a 

structured, systematic, and massive offense.  

To this point, it is appropriate to state that in the simultaneous regional head elections, 

the Constitutional Court is still attempting to be consistent with its activism efforts to correct 

the results of less democratic regional head elections and does not hesitate to order a re-

vote. However, from a considering standpoint, it demonstrates that the judge was cautious 

in recognizing the justifications for structural, systematic, and massive offense. This can be 

regarded as a court's attempt to raise the burden of evidence in cases involving election 

offense. It is believed that this approach will set a precedent and make proving the case for 

an structural, systematic, and massive election offense a lot harder in the future.  

 

CONCLUSION 

 Judges engaged in constitutional activism in the context of regional head election 

disputes in at least the following manners: first, the Constitutional Court's determination to rule on 

voting and recounting of votes in regional head elections; second, the Constitutional Court's 

willingness to examine and include violations that are structured, massive, and systematic as a 

basis for decisions; and third, the judge's courage to disqualify regional head candidates as well 

as determine the winner to avoid confusion while providing legal certainty to society. The 

Constitutional Court has continued to pursue this activist practice in the 2020 simultaneous 

regional elections, allowing 18 requests for regional head election disputes and requiring a re-

vote on 17 of its decisions. There are indications, however, that the structural, systematic, and 

massive election offenses, were not the primary basis for dismissing the regional head election 

results, but rather received more objections from judges who sought adequate proof. This 

condition shall render it much more difficult to prove a structured, systematic, and massive 

offense in the future. This appears to be at odds with earlier Constitutional Court decisions, which 

were believed to be progressive and emphasize substantive justice. 

 

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