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Constitutional Justice I Dewa Gede Palguna became keyspeaker at the Expert Meeting held by the Center of Pancasila and Constitutional Review (Pusat Pengkajian Pancasila dan Konstitusi –Puskapsi) Faculty of Law, Universitas Jember, at Panorama Hotel auditorium, East Java (25/4). Photo PR/Hendy

 

Theoretically, regional elections (Pemilihan Kepala Daerah –Pilkada) which directly elected by the people is very good for democracy development. However, some problems occurred in regional elections in the past, so it didn’t guarantee the manifestation of substantial democracy. Even in several cases, regional elections tend to distort democracy values. It was stated by Constitutional Justice I Dewa Gede Palguna at the Expert Meeting “The Constitutional Court and Regional Election Disputes” which held by the Center of Pancasila and Constitutional Review (Pusat Pengkajian Pancasila dan Konstitusi –Puskapsi), Faculty of Law Universitas Jember, at Panorama Hotel auditorium, Jember, East Java (25/4).

According to Palguna, several times ago, the polemic of regional election option as general election regime or regional government became an interesting topic. The polemic also went through long debates which involved the interpretation of legislators and the interpretation of Constitutional Court. “The initial momentum of regional elections directly elected by the people is regulated in Act Number 32 Year 2004 of Regional Government. It didn’t affirm in the Act, whether the regional elections are included in general election regime or regional government regime. The Act uses phrase ‘regional head elections and regional deputy head elections’,” he explained.

Palguna explained the debate on regional election option whether regional government or general election regime was started since the Constitutional Court Verdict issued towards Case Number 072,073/PUU-II/2004. Based on the verdict, direct regional elections are stipulated under regional government regime. Therefore, Palguna added, the Constitutional Court argued regional elections weren’t included in the category of general election as stipulated in Article 22E the 1945 Constitution. According to the Court, direct regional elections were elections which materially implemented Article 18 the 1945 Constitution. However, the Court didn’t rule out the elections included in general election regime.

 “It means, under the verdict, the Court includes the direct regional elections in the regional government regime. However, the Court doesn’t rule out if the direct regional elections is includes in general elections regime. It is because the Constitutional Court opens opportunity for future legislators to determine the KPU as the organizer of direct regional elections,” Palguna explained.  

The Court’s Authority to Handle Dispute Resolution over Election Result

Palguna then explained in the development, by Act Number 22 Year 2007 as amended by Act Number 15 Year 2011 of General Election Organizer, the legislators affirmed the regional election was included in general election regime. Based on Act Number 12 Year 2008 of Second Act Amendment Number 32 Year 2004 of Regional Government, the legislators aren’t explicitly stated direct regional elections as general election regime; however hands over the dispute over regional election result from the Supreme Court to the Constitutional Court. “If the dispute over regional election is handed over to the Constitutional Court, direct regional elections are general election regime. Along it interpreted as general election, so the dispute resolution becomes the Constitutional Court’s authority,” Palguna explained.

Further, Palguna also explained the Constitutional Court had handed regional election disputes for over than 6 years. In 2014 based on the Constitutional Court Verdict Number 97/PUU-XI/2013, the Constitutional Court ended its authority to resolve the regional elections dispute by declaring Article 236C Act Number 12/2008 contrary to the 1945 Constitution and had no legal binding. The legislators by Act Number 1 Year 2015 which determined the Government Regulation in Lieu of Law Number 1 Year 2015 passed into Act, determined the dispute resolution was handed by the Supreme Court. However, the legislators then change back the provision, so the dispute was examined and adjudicated by a particular judicial institution.

“The provision hasn’t run, the legislators then agree to change the provision on Act Number 8 Year 2015, among others the amendment of Article 157 which the idea is totally the opposite. In the Article stated, the dispute is examined and adjudicated by a particular judicial institution, which established before the election implementation. The dispute is examined and adjudicated by the Constitutional Court until a particular judicial institution is established,” explained Palguna.

In the closing, Palguna encouraged entire society, especially the academics to be involved actively in supervise the regional elections. “It is important to achieve fair and prosperous democracy state needed the role and participation from entire society. In terms of the success of building a democratic state, the culture of ready for winning and losing should be embedded in each individual. Especially political parties which must embed to their cadres that the ultimate goal is the prosperity and progress of the nation," said Palguna. (hendypras / TIR/Prasetyo Adi N)

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