Chief Justice Anwar Usman giving a keynote speech at the international law webinar in the Constitutional Law Festival of the Law Faculty of Brawijaya University virtually, Saturday (9/11/2021). Photo by Humas MK/Ilham W. M.
Saturday, September 11, 2021 | 17:51 WIB
JAKARTA, Public Relations—The direct regional head election (pilkada) and the resolution of its disputes is inseparable from the people’s enthusiasm during the Reform era to change national and regional leaderships. As a result, the transfer of national and local leaderships now involves the people, who are free to determine their political stances without fear in order to elect their leaders directly, said Chief Justice Anwar Usman when giving a keynote speech virtually at the international law webinar in the Constitutional Law Festival (CLFest) of the Law Faculty of Brawijaya University on Saturday afternoon, September 11, 2021. The webinar explored the theme “Comparing the Resolution of Regional Head Election Disputes and the Urgency of Establishing a Special Electoral Judicial Body to Realize Constitutional Democracy.”
Pilkada Mechanism
Justice Anwar further explained that the people’s aspiration was then accommodated in Chapter VIIB Article 22E of the Third Amendment to the 1945 Constitution, which regulates elections. Paragraph (1) of the article reads, “General election shall be held directly, publicly, freely, secretly, fairly, and justly once in five years.”
The direct election led to the improvement of the electoral system in order to allow the people to elect their leaders directly. The open proportional system not only allows them to choose the political parties that represent their interest in the parliament, but also their representatives.
The idea of the direct pilkada, Justice Anwar said, was put in Article 18 paragraph (4) of the 1945 Constitution, which stipulates that governors, regents, and mayors are elected democratically. The original intent of the word “democratically” means that pilkada could be carried out through the Regional Legislative Council (DPRD) or directly by the people.
“The mechanism of direct general and regional head elections is expected to elect representatives and leaders who have capacity, competency, and commitment in creating the common good that the people want because they are directly elected by the people. This is certainly different than before the Reform, when the people did not get the opportunity to elect their representatives in parliament, their presidential candidates, or their regional head candidates directly, as they were elected through representation,” he said.
Democratic Transition
Justice Anwar said that direct national and local elections had pushed the nation to democratic transition through the transformation of the electoral system where the people are no longer mere audience in the transfer of power, but as real actors of democracy. As such, they really hold the sovereignty in the constitutional democratic system.
Many people are concerned with today’s elections, especially pilkada, where “money politics” (vote buying), horizontal conflicts, frauds, abuse of state facilities, bureaucratic partiality, partiality of election organizers, and anarchy are not unheard of.
As a consequence, the democratic transition to direct pilkada is now being debated. Some want it to stop due to ineffectiveness and inefficiency. Some see more problems than benefits to it,” Justice Anwar added.
The idea to stop direct pilkada, he said, was realized through Law No. 22 of 2014 on the Governor, Regent, and Mayor Election (Pilkada Law), which stipulated that it be done through the DPRD, which the political elites wholly supported. However, the new law was repealed by the Government Regulation in Lieu of Law (Perppu) No. 1 of 2014 on the Governor, Regent, and Mayor Election (Pilkada Perppu), due to the people’s demand for direct election.
The DPRD-led pilkada, Justice Anwar said, might not be the best open legal policy, as might not necessarily eradicate transactional politics and money politics. It might only benefit the elites, as such practices will not only occur in the DPRD but will also bring forth new centered oligarchy.
Therefore, Justice Anwar said, issues within pilkada does not mean that the system must be changed, but solutions for them must be sought. President Susilo Bambang Yudhoyono was aware of this, then issued the perppu. Maintaining direct pilkada means policymakers had been consistent, which ensured that legal certainty continued. Lon L. Fuller stated that one of the characteristics of good law is constancy through time or avoidance of frequent change, so that public certainty and order can be realized.
Tug-of-War
Justice Anwar added that the political dynamics in the country had warmed up due to the tug-of-war in relation to several provisions in the Pilkada Law, one relating to the judicial authority over regional election disputes. Perppu No. 1 of 2014 stipulates that it was held by the High Court appointed by the Supreme Court.
Any objection, he said, can be lodged to the Supreme Court, whose decision is final and binding. Article 157 paragraph (6) of the Pilkada Perppu reads, “Parties who do not accept the High Court Decision as referred to in paragraph (5) may file a petition of objection to the Supreme Court no later than 3 (three) days after the High Court’s decision is pronounced.” However, after this perppu was passed into Law No. 1 of 2015, it was then amended through Law No. 8 of 2015 on the Amendment to Law No. 1 of 2015 of the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law.
According to Article 157 paragraph (1) of Law No. 8 of 2015, Justice Anwar said, a special judicial body is authorized to adjudicate pilkada disputes. However, paragraph (3) of the article stipulates that the Constitutional Court is authorized to do so until such a body is established.
Different ideas and stances when formulating the Pilkada Law were normal in a democratic process. Not to mention that Indonesia only emerged as a democracy in the beginning of the 21st century. Therefore, national and local elections must be directed to raise public political awareness in order to reach political maturity.
One of the signs of a constitutional democracy is democratic elections, which has been stipulated in the Constitution. A democratic election must be direct, public, free, confidential, honest, and fair. Any democratic, direct election that does not abide by these principles and Pancasila values will taint our democracy.
On the other hand, a democratic election is not only direct, but also based on the election values as referred to in Article 22E of the 1945 Constitution: direct, public, free, confidential, honest, and fair. Pancasila values as philosofische grondslag must also be embodied in the election so that it be democratic and ethical, civil, and moral.
Authority to Adjudicate Pilkada Disputes
The Constitutional Court’s authority to decide on election results disputes was expanded not only to include the election of House of Representatives (DPR), Regional Representatives Council (DPD), and House of Representatives (DPD) as well as the president, but also regional heads. Article 236C of the Regional Government Law stipulates that the resolution of regional head election results disputes was relegated from the Supreme Court to the Constitutional Court no later than 18 months since the law was promulgated. As such, pilkada was included in the election regime.
Then, through Decision No. 97/PUU-XI/2013, the Constitutional Court repealed the article and declared it null and void. The Court ruled itself no longer authorized to rule on pilkada disputes, because the original intent of the 1945 Constitution explains the authorities of state institutions clearly and limitedly, so that there could not be any additional authorities, less so when they are given by laws, which are under the Constitution.
However, until a special body is established to rule on pilkada disputes, the Constitutional Court is authorized to do so. This transitional authority is now stipulated in Article 157 paragraph (3) of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of the Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law.
“Although the Constitutional Court decided that it was no longer authorized to rule on the disputes over regional head election results, academic discussion and debate [on the matter] did not necessarily end because theoretically and in practice, the regional head election is within two regimes: in Article 18 paragraph (4) of the 1945 Constitution it belongs to the regional government regime, while its technical implementation follows Article 22E of the 1945 Constitution, which [regulates] the general election regime,” Justice Anwar stressed.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/23/2021 18:33 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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