Alternative Dispute Resolution in Elections

Electoral justice aims to protect and restore citizens’ rights and provide opportunities for citizens whose rights have been violated to file complaints, present their cases to be heard, and obtain a decision. To achieve electoral justice, an electoral management body or election supervisory body can use alternative dispute resolution (ADR) mechanisms or electoral dispute resolution (EDR) mechanisms. Whichever form is taken, it has the purpose of providing for an effective remedy, independence, impartiality, and timely action, which are crucial to maintaining the credibility of the election process, as noted in the 2011 International Foundation for Electoral Systems (IFES) Guidelines on Understanding, Adjudicating, and Resolving Disputes in Elections.

In the Indonesian context, all election disputes arising before the announcement of the final vote result by the election commission are under the authority of Bawaslu, a supervisory election body, and the use of ADR is expressly stipulated therein. Provisions in the law clearly define the role of the district court, administrative court, election commission, and Bawaslu. Bawaslu seeks to promote the concept of restorative justice, in which the parties’ collective participation is based on consensus and focuses on efforts to improve the recovery of the losses suffered by the aggrieved persons. While ADR was used only in an informal manner at first, the 2017 Electoral Law marked an important evolution by defining electoral disputes, and it gave Bawaslu the authority to mediate over pre-election disputes. Bawaslu further defined the ADR process in its regulations, which provided for the mediation process from submission of the dispute to settlement. Bawaslu also conducted an extensive training program for all its officials. In Indonesia, ADR has been a means to empower Bawaslu’s supervisory board as an arbiter and adjudicator.

I welcome this Practitioner Guide, developed by IFES, regarding the use of ADR in elections. The election process is a long journey, and issues that arise at each stage of the process can cause the election cycle to be hampered or derailed. ADR can function adequately if the electoral law clearly states the mandates and powers of the ADR body, which can initiate mediation or conciliation and define the process and the object of the dispute in question. If this is not confirmed in regulation, then confusion could arise among the EDR actors responsible for handling allegations of criminal offenses and administrative violations, for instance. Moreover, without proper training and adequate rules, inconsistency, and procedural errors in the conduct of the ADR process in various regions can jeopardize the fairness of the process and the trust of the public.

ADR in the electoral process is not something new in Indonesia and has contributed to the efficiency of Bawaslu as a supervisory body in elections. However, this Practitioner Guide reveals that efforts to strengthen the practice of ADR in the electoral process are still needed. And, while implementation from one country to another differs, this guide provides recommendations for election administrators to improve these mediation or conciliation processes. This Practitioner Guide, I believe, can contribute to raising the importance of introducing or strengthening the use of ADR in the electoral process. And, as this publication shows, we can all benefit from other countries’ positive experiences or challenges so we can all do better as election officials or election supervisory authorities in resolving election disputes.

Written by Fritz Edward Siregar, Ph.D. (Indonesia Bawaslu, Former Commissioner)