Jakarta (hukumonline) – From the constitutional law aspect, an article in an Act would still exist if in the amended Act did not strictly state had been deleted or changed with the formulation in the new article.
 
Second amendment of Act No.32/2004 on Regional Government (Act on Regional Government) recently passed on by the Assembly Meeting of the House of Representatives (1/4), had brought major changes in the election of regional head (Pilkada) in Indonesia. Not only did the changes open the possibility for individual candidates, but it also transferred the handling of dispute of the result of the election cases from the Supreme Court (MA) to the Constitutional Court (MK). The last was an emphasis on the integration of regional election in the General Election regime.

Related to the changes, each related institution had stated their opinions. As commonly reported, the Constitutional Court had declared their readiness to accept the handing over of the cases, meanwhile the Supreme Court requested that the transfer of cases not to be related to the Supreme Court’s ability to settle the regional election cases. The House who gave birth to the latest Act on Regional Government stated that the dispute cases were purposefully transferred to the Constitutional Court because they were considered to be able to provide law certainty to the parties involved.  

Behind the euphoria of welcoming the new Act, there is a hidden defect related to the dispute of the Regional Election that was not focused on. The regulation on the transfer for handling regional election cases contained some problems. The newest act on Regional Election only provided Article 236C as the legal basis for the transfer. Even if we refer to the previous Act on Regional Government, the article belonged to Chapter XV on Transitional Provisions.

Strangely, the latest Act on Regional Government did not do anything to Article 106 that in the previous Act was used as the basis for Supreme Court’s authority to settle the dispute in Regional Election. Based on the Bill’s document received by hukumonline after the Assembly Meeting to pass on the Bill, Article 106 was one of the article that was not changed. The structure jumped from Article 75 on Campaign directly to Article 107 on the Ballot result.

Article 106 paragraph (1) UU No.32/2004
The objection toward the settlement of the regional head and vice election result could only be filed by the candidate pair to the Supreme Court within 3 (three) days after the settlement of the election result of the regional head and vice election.

Article 236C Latest Act on Regional Government
The handling of dispute over the balloting result of the regional head and vice election by the Supreme Court was transferred to the Constitutional Court within 18 months after the Act is passed on.

“Academically, the Act recently passed on is clearly troublesome,” said the Lecturer of constitutional study of Law Faculty of University of Indonesia Sonny Maulana Sikumbang. He emphasized that the revision Act should emphasized which articles are changed or probably erased. “It means, so far that it is not erased then (the article) still exists,” he continued.

Sonny admitted that he could not figure out why elementary mistakes like this could happen in the House of Representatives. As a legislative institution, they should understand the basic principles in lawmaking. The mindset of the member of the Parliament, according to Sonny, was wrong because they put forward the transitional process not the main legal basis, which was Article 106. With this condition, there would be contradictive substances in the latest Act on Regional Government because in one side it contained the transition technical while in other side it allowed the initial condition existed.

Conflicts Potency
“This is what strange if the Article 106 became the untouchable ground, the change should be complete covering related articles,” said the Executive Director CETRO Hadar Gumay who admitted he just knew the problem after being passed on by the Parliament. Article 106, according to Hadar, was supposed to be emphasized in the transitional Act whether changed or erased

Hadar suspected that the Parliament as the lawmakers were ignorant caused in the existence of the strangeness. He added, the Parliament was focusing themselves on themselves too much on the related articles with their political interests. As the result, the product they made was not perfect or defected. “They (The Parliament, ed.) besides having a deadline, it seemed that they also focused on the rule of individual candidates too much so that they missed the details,” he added.

He was worried that the problem would end in law uncertainty. The worst impact would be the raise of horizontal conflicts in many areas. Unfortunately, according to Hadar, there was nothing could be done to make correction because the Parliament had passed on the Act. “Meanwhile, the position of the President is merely a stamp because He only passed on the Act without being able to change the substances,” he said.

The material trial to the Constitutional Court, according to Hadar, was unlikely to do because it would be difficult to find the constitutional reasons. The Act on Constitutional Court indeed requested the existence of parties causing some constitutional rights loss in the material trial toward legislation. “So, practically there is nothing to be done even though the new Act substantially contained problems, I wish the Parliament realized it soon,” he wished.

Transitional Period
When asked about his explanation, Thursday (3/4), member of the Working Committee (Panja) for revising the Act on Regional Government Andi Yuliani Paris admitted that the Committee did not change Article 106. That was done on the basis of that the Act on Regional Government was meant to fill the transitional period. Because of that, the Committee emphasized first on the transitional provisions of Article 236 C by setting the transitional period as long as 18 months. The transitional period was set to give an opportunity to the Constitutional Court to prepare everything before the transfer realized.

During the transitional period, the government was expected to finish the Bill of Regional Election which later would be a comprehensive reference of Regional Election throughout Indonesia. The Bill was projected to be the government initative Bill, especially the Ministry of Home Affairs.

Related to the conflict potency as worried by many parties, Andi convinced that would not happen. “Because during the 18 months there would be an Act of Regional Election to be used as legal ground for the election,” he argued. Andi expected the Bill mentioned to be filed to the Parliament with hope that the discussion of it would be finished in the next Parliament trial period.  (Rzk/Ali)

Source www.hukumonline.com (03/04/08)
Photo www.eramuslim.com
Translated by Yogi Djatnika (MKRI)