The Supreme Court (SC) of Indonesia is doing its bit to ensure uncertainty remains after the recent election in South Sulawesi to choose a Regional Head. The incumbent Governor lost a close election by less than 0.8% of the primary vote. To be sure in any democracy this would be close enough to demand a recount. If the election commission would not provide a recount then the candidates have recourse to the SC to have any objections to the election result judicially determined.
The incumbent Governor did just that but I am sure he was not expecting the gift that the SC gave him in a 3 - 2 split decision. The decision is bizarre as it appears to extend considerably further than the current regulatory powers provided to the SC to decide cases such as this. The Law on Regional Government (Law No. 32/2004) in Articles 104(1) and (2) and 106(2) grants the SC the power to order new elections under very limited circumstances such as where votes cannot be counted or vote boxes are treated in an irregular manner inconsistent with prevailing regulations, as well as a number of other counting problems such as rioting supporters.
The SC has issued a Regulation (No. 6 of 2006) only grants the SC the power to cancel the announced results by the election commission and announce the correct count as determined by the SC. In none of the Regulations is there a power for the SC to annul results and demand a new election take place. In effect the SC decision does just that. The SC in essence has held that the vote in four districts (Bone, Gowa, Tana Toraja, and Bantaeng) were invalid and the election must be held again.
This is the really bizarre part as the wording of the decisions suggests that the local election commission will have to re-hold the election from scratch. Stupidity at its best as it goes on to state that the election commission has three to six months to get this done. Unfortunately, the incumbent Governor's term expires on 20 January 2008. But the real stupidity is that re-holding the election in effect should invalidate the whole election as if the process was to start from scratch then new candidates could theoretically be nominated. The big winner here is Golkar as it in effect gives their candidate, the incumbent Governor, a second bite of the apple.
The decision clearly appears to extend beyond the authority of the SC in this instance. A recount should have been ordered and the candidates accept the results of the recount. The necessity to hold the election in these four districts is unproved by the applicant and in reality this is not what the incumbent Governor asked for. The application was for a recount.
Democracy works in strange ways. The issue is not whether the incumbent has a right to object to the count, he does in this instance, but rather the mechanism for satisfying the right to object. The SC seems to be saying it objects too to the limitations on its authority so it is going to ignore them and issues decisions as it sees fit.
No wonder people continue to question the independence of the courts and the legal certainty that they do not regularly provide. Yet, the case is not over as the election commission can appeal this decision and conceivably have the decision overturned on judicial review.