ADR Case Study: Indonesia

The Indonesia case study features a successful mediation practice that was later introduced in the law and, through important training efforts, resulted in a significant decrease in formal adjudication of pre-election disputes. This example also shows the importance of setting clear deadlines for the mediation process so as not to derail the overall election process and the central institution’s need for reporting mechanisms from decentralized to ensure consistency and oversight.

In 2012, the Indonesian electoral law180 granted the Election Supervisory Body of the Republic of Indonesia (Bawaslu) the authority to take actions related to prevention, supervision, and enforcement of election criminal law violations; enforcement of election administrative law; and dispute resolution for the election process.181 The law also specifically empowered Bawaslu182 to use ADR mechanisms in its proceedings for disputes related to candidate nominations.183

Initially, the law specified no timeline and no regulations for each stage of the ADR process, which created confusion regarding the deadline for introducing and concluding mediation processes. These absences and the resulting confusion had the potential to negatively impact the election process. The 2014 election cycle evidenced that the timeline for mediation of disputes was lengthy and that, by the time the parties settled their nomination or registration disputes, ballot papers had already been printed, rendering their agreement void. Bawaslu then advocated for reform, and, in 2017, the legislature introduced new provisions detailing what is considered a criminal offense, administrative violation, and electoral process dispute. The legislature also stated that Bawaslu could initiate mediation in case of disputes relating to candidates’ registration in the elections and set a three-day timeframe from the time of receipt for attempting to resolve an election dispute through ADR. The entire process, from registration to the decision, must be completed within 12 working days.184 These amendments to the law were welcomed by Bawaslu, giving it the discretion to design its mediation process.

The law and regulations also provided for the settlement of disputes between campaign teams at the district level during the campaign period. For instance, Bawaslu mediated disputes related to the number of members who need to sign endorsements to be eligible to run a candidate or disputes related to the implementation of gender rules in party lists. Bawaslu further elaborated the conduct of mediation in its Bawaslu Regulations. For instance, the regulations provide that, once the parties to a dispute reach a conclusion, Bawaslu will provide a written statement about the settlement. If a settlement is not reached after the two-day deliberation process, the parties will continue the adjudication process in which an assembly led by Bawaslu members acts as an arbitrator and reach a binding decision.185 But despite this clear procedure, the institution faced legal challenges in practice. Bawaslu had to determine the value of a formal settlement or award reached during the mediation and whether mediators could approve a decision during the ADR process that is against the law, notably regarding the gender quota.

In terms of the capacity of mediators, Bawaslu is well-equipped to carry out its mediation function. Only 13 percent of its members hold law degrees, but training strengthened officers’ capacity to conduct mediation. A total of 2,300 Bawaslu officials were trained to build their skills as mediators. Former Bawaslu commissioner Fritz Edward Siregar noted the important financial investment from the institution to conduct these trainings at all levels.

Bawaslu has conducted extensive training on mediation and is committed to its objective of having 30 percent of members/mediators be women, an increase over the current 17 percent. Bawaslu conducts gender-related trainings for mediators, although these remain limited. During an interview with IFES, former Bawaslu commissioner and IFES She Leads alumna Dr. Ratna Dewi Pettalolo noted that, in addition to capacity building, there is a need to invest in advocacy to encourage women to become members of Bawaslu and serve as mediators. Indeed, disputants sought Bawaslu’s support regarding candidacy eligibility criteria and resolving this case with the election commission. For instance, many parties to the nomination process have problems fulfilling the legal requirement of one-third of female candidates on the list. As a result of mediation, the settlement included an extension of the deadline to help parties to convince women to become candidates.

Another challenge faced by Bawaslu, as noted by interviewees, was the consistency of decisions across Indonesia—a country with 34 provinces and 514 municipalities/cities, and 190 million registered voters. In the 2019 elections, there were challenges in the implementation of ADR processes to ensure consistency in certain disputes, including gender quotas for candidacy. Coordination from the national Bawaslu to the district/city level must be carried out intensively to ensure that every decision or agreement is consistent across regions. Even with precise arrangements and training, arbitrariness or intimidation may be apparent in mediation settlements.

Former Bawaslu commissioner Fritz Edward Siregar mentioned the challenge of Bawaslu remaining an objective arbitrator and the need to address disputes both as a mediator and potentially as an adjudicator in the future. Bawaslu established clear procedures for who presides over a matter and who serves as secretary. The members of Bawaslu can meet as a panel or in plenary and develop rules to ensure a fair process. These include providing for mediation by two or three members of Bawaslu at the local level, followed by an appeals process with a full bench.

In the 2019 elections, Bawaslu addressed more than 800 disputes over the electoral process. A former Bawaslu commissioner noted that “50.9 [percent] of these cases that are filed with Bawaslu are completed and final after the mediation.”186 Most cases involved political parties and the Election Commission. Data show the successful use of mediation in the Indonesian election context. Records of all electoral process dispute processes are maintained in the Dispute Resolution Information System, which Bawaslu offices throughout Indonesia can access. Through this digital system, Bawaslu can monitor ongoing electoral dispute resolution processes, improving mediation practices from one cycle to the next.

Citations

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180 General Elections Law, 2012 (Law No. 8 /2012) (Indon.).

181 Of the five authorities, only the authority to resolve disputes over the electoral process has two stages of the process, namely deliberation (alternative dispute resolution) and adjudication (electoral dispute resolution).

182 Indonesia has three institutions related to election management: the general election commission, the election supervisory body (Bawaslu), and the ethical honorary council.

183 According to Law No. 8 /2012, three stages are required in resolving election disputes: 1) BAWASLU invites the parties to consult to reach a mutual agreement in deliberation; 2) if no agreement is reached, BAWASLU will ask the parties to appoint a mediator to establish a way for the parties to agree; 3) if there is still no agreement, then BAWASLU will act as an arbitrator whose decision must be implemented.

184 Electoral Law, 2017, art. 466 (Law No. 7/2017) (Indon.).

185 Bawaslu’s decision regarding dispute resolution in the election process is final and binding, except for electoral process disputes related to the verification of political parties participating in the election, determination of the list of permanent candidates for legislative members, and determination of presidential and vice-presidential candidates (Article 469 paragraph (1) of the Electoral Law). Furthermore, the district administrative court will accept an appeal against the BAWASLU decision (Article 470, Section (1) of the Electoral Law, 2017).