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Legal mess as Prabowo pulls out of vote count
Jakarta Globe - July 22, 2014
Speaking from his campaign base in East Jakarta on Tuesday afternoon, Prabowo said he was "withdrawing" from the vote-counting process.
"We are going to use our constitutional rights and we are rejecting this presidential election, which is legally flawed," Prabowo said in his televised speech while surrounded by leaders of most of the political parties in his coalition.
Conspicuously absent were his running mate, Hatta Rajasa, and campaign manager, Mahfud M.D., the former Constitutional Court chief justice.
Mahfud, who over the weekend conceded that the race was over and said there would be no use in Prabowo challenging the results of Tuesday's announcement at the Constitutional Court, resigned from the candidate's team within hours of Prabowo's outburst.
Hatta, meanwhile, stayed indoors and canceled his own press conference that was scheduled to take place an hour after Prabowo spoke.
Generals on the march
The candidate quickly scrambled together a new team, headed by a trio of retired military generals.
Mahfud's replacement is Yunus Yosfiah, a former Army Special Forces (Kopassus) officer who was previously accused of involvement in the military's killing of five Australian-based journalists in the East Timor town of Balibo in the lead-up to the Indonesian invasion of the former Portuguese colony in late 1975.
Prabowo has also previously faced allegations of rights abuses there during his own time with Kopassus.
The new deputy campaign managers are Djoko Santoso, a former military chief of staff, and George Toisutta, a former Army chief of staff.
All three retired generals are known to be close to President Susilo Bambang Yudhoyono, himself a former general, who claimed to take a neutral stance in the election but whose Democratic Party formally supports Prabowo.
Meanwhile, other members of Prabowo's camp attempted to row back from the candidate's earlier statement that he was "withdrawing," and insisted that their presidential candidate would still take complaints of electoral fraud and malpractice to the Constitutional Court – the country's final court of appeal on such matters.
Prabowo cited 5,000 polling stations in Jakarta where, he claimed, irregularities had taken place, and pointed to districts in Papua and East Java where no voting had taken place at all. "We instruct all our witnesses in the KPU not to continue the tally process," Prabowo said.
Prabowo's witnesses at the headquarters of the General Elections Commission (KPU) in Central Jakarta then staged a walkout. The vote count and final announcement went ahead regardless later on Tuesday night.
Legal quagmire
As the camp of rival candidate Joko Widodo declared victory and urged Indonesians to respect the integrity of the count, and Prabowo's longtime nemesis Wiranto branded his former military colleague "sad" and "bitter," constitutional law experts were left scrambling through the statutes for a black-and-white answer to an unprecedented electoral gray area: Was there a legal mechanism for Prabowo to formally withdraw from the presidential election?
A letter seen by the Jakarta Globe late on Tuesday night addressed to the KPU said the Prabowo campaign would "menarik diri" – which means "withdraw" or "pull out" – from the counting process. There was no mention in the letter of withdrawing from the candidacy entirely.
"The election process will keep on running and no one can stop that except a court ruling or the recommendation of the Bawaslu [Elections Supervisory Body]," former KPU chairman Abdul Hafiz Anshary said, as quoted by Metrotvnews.com on Tuesday. MetroTV is owned by Surya Paloh, a senior member of Joko's coalition.
Refly Harun, a constitutional law expert, told the Globe that Prabowo's ambiguous withdrawal would not have any bearing on the legitimacy of the official announcement. "There is no problem – whatever the KPU announces will be legally valid," Refly said.
The question of whether Prabowo had officially withdrawn from the presidential election – or whether there was a legal mechanism through which he could withdraw – was more complicated and could not be confirmed either way at the time of writing.
"He cannot withdraw," said Basuki Tjahaja Purnama, the acting governor of Jakarta and a member of Prabowo's Great Indonesia Movement Party (Gerindra). "It has been regulated by the KPU that [a candidate] can't withdraw."
Some legal experts expressed concern that Prabowo's move would throw Indonesia into an unnecessary and potentially dangerous constitutional crisis.
"Our law gives us 30 days [after the election] to announce the result, which means we still have some 10 days left [to make the announcement]," said Irman Putra Sidin, a noted constitutional law expert from Hassanudin University in Makassar, South Sulawesi. "If the KPU insists on announcing it today there will be a serious constitutional problem.
"So please, for the KPU: don't rush into this – this is going to give rise to serious consequences," Irman said.
Others said that there was no legitimate basis in Prabowo's accusations, given that the disputed Jakarta polling station results and the allegations of malpractice in East Java and Papua could not possibly give Prabowo the swing in votes he would need to leapfrog Joko – more than four million ballots.
"To see it from the scientific and rational view, with the gap of eight million votes – or six percentage points – even if the case were taken to the Constitutional Court, and even if the court just blindly decided to give [Prabowo] the votes of all unregistered voters, he would not be able to pass the total votes gained by Joko Widodo and Jusuf Kalla," Haryadi, a political expert from Surabaya's Airlangga University, told the Globe.
Others said the KPU should not be prevented from announcing the official result on Tuesday night. "If they stop, then the losing party in future elections could just withdraw like [Prabowo] did," said Saldi Isra at Andalas University in Padang, West Sumatra. "That should not be allowed to happen."
No provisions
Some pundits speculated that there could be grounds for Prabowo to be fined or even face criminal charges for his withdrawal.
The 2008 Presidential Election Law states that any candidate who withdraws from the electoral process during the period between being approved to run by the KPU and balloting day can face between two and five years in prison and fines of Rp 25 billion to Rp 50 billion ($2.15 million to $4.31 million).
However, Prabowo's withdrawal falls outside the stipulated period, and the election law makes no provisions for such a contingency.
Rumors circulated late on Tuesday night that Prabowo would be holding another press conference on Wednesday morning, and that he would make it clear that he was not "withdrawing" from the race.
There were also calls from members of his team for Yudhoyono to remain in office for an extra year to allow a new election to be called. Yudhoyono is set to leave office on Oct. 20, when Joko is inaugurated as the country's seventh president. The outgoing president has long said he intends to see out his term peacefully and make a smooth transition to the new administration.
Source: http://www.thejakartaglobe.com/news/legal-mess-prabowo-pulls-vote-count/.
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