Constitutional Justice M. Guntur Hamzah delivering his dissent at a ruling hearing of judicial review of Law No. 7 of 2017 on General Elections, Wednesday (8/30/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The organization of the KPU (General Elections Commission) cannot be compared to that of regional governments. The KPU is an independent election organizer that is under a hierarchy that includes the central KPU at the highest level. Moreover, it is national, which is intended so that the election is implemented in a system. Therefore, the KPU RI’s authority to form teams to perform selection of KPU members, be it provincial or at the regency/city level, cannot be separated from the hierarchy referred by Article 9 paragraph (1) of Law No. 7 of 2017 on General Elections (Election Law).
Such is the Constitutional Court’s legal opinion in Decision No. 74/PUU-XXI/2023 for the petition by Osea Petege, former KPU (General Elections Commission) chairperson of Dogiyai Regency, Papua Province. The ruling hearing took place on Wednesday, August 30, 2023 in the plenary courtroom with Chief Justice Anwar Usman and the other eight constitutional justices presiding. The Petitioner challenged Articles 23 paragraph (1), 28 paragraph (1), 31 paragraph (1), 32 paragraph (1), 33 paragraph (1), 34 paragraph (1), 37 paragraph (4), and 39 paragraph (3) of the Election Law.
Reading out the Court’s opinion, Constitutional Justice Suhartoyo said that the KPU’s mechanism is regulated in Article 9 paragraph (1) of the Election Law, which stipulates that the central, provincial, and regency/city KPU is hierarchical, including the provincial and regency/city KPU in special government units. Bureaucracy, power, responsibilities, and authority are regulated based on one’s position in an organization. Although in practice it is often said to be centralistic, hierarchy is fundamentally different from the centralistic bureaucracy in government.
Justice Suhartoyo also said that the KPU’s hierarchical design shows that the authority and responsibility of each level is determined based on statutory legislation. As an election organizer, each level of the KPU has authority to implement the election.
“For example, in implementing the election of governors, regents, and mayors, the provincial and regency/city KPU is given full authority. However, hierarchically, the central KPU has been given authority by Law No. 7 of 2017 to draft the management of the central, provincial, and regency/city KPU, including to appoint, train, and dismiss members of the provincial and regency/city KPU and [the Overseas Elections Committee (PPLN)] in order to form a unity of election system,” Justice Suhartoyo explained.
However, the Court understands the objective of the fulfillment of the decentralization principle as guaranteed in Article 18 of the 1945 Constitution, which the Petitioner believed should apply in the organization of all levels of the KPU for the sake of equality.
The Petitioner, former KPU chairperson of Dogiyai Regency in 2012, felt harmed by the centralistic nomination, selection, and appointment of the KPU selection team, which is under the central KPU’s control. He alleged that it led to gap of access and unequal opportunity. The Court, however, holds that Article 23 paragraph (1), 28 paragraph (1), and Article 32 paragraph (3) have regulated election stages clearly and they not focus only on administrative matters but also explain the series of selection KPU member candidates must undergo.
“Not only electoral knowledge that will be questioned in depth in the selection process by the selection team, but also other aspects such as morality, independence, and ability to face pressure and work pace as election organizer,” said Constitutional Justice Wahiduddin Adams reading out the Court’s legal opinion.
The Court decided to reject the entire petition. “[The Court adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman delivering the verdict.
Principle of Decentralization
Constitutional Justice M. Guntur Hamzah delivered his dissent on the petition. He believes it should continue to evidentiary hearings because it concerns the issue of the recruitment of KPU commissioners in the regions, especially the provincial KPU’s role and proportion in the recruitment of regency/city KPU, which he believes should be set forth in a law. This would be a manifestation of the principles of decentralization, equality, and equal opportunity. He added that transparency, fairness, objectivity, independence, and professionalism in the management of recruitment of regency/city KPU is urgent.
While he admitted that the KPU is national and hierarchical, the recruitment of regency/city KPU should implement a limited decentralization approach. The recruitment of the selection team remains the KPU’s authority, implemented after coordination with the provincial KPU.
“In principle, the provincial KPU’s involvement is to provide an opportunity for sons and daughters in the regions who have deep insights on the conditions of their regions in terms of socio-economy, culture, and geography so that they can play a bigger role in regional development while maintaining transparency, fairness, objectivity, independence, and professionalism in the recruitment process. Constitutionally, coordination between the central and provincial KPU to recruit members of regency/city KPU is in line with the decentralization principle and regional autonomy as guaranteed by Article 18 of the 1945 Constitution,” he explained.
In simple terms, he said, although the central and provincial KPU coordinate to recruit members of regency/city KPU, it is not only limited to the implementation of the recruitment, but also in determining the composition of the selection team, in which the provincial KPU plays a bigger role. This, he added, would not degrade the central KPU’s position.
In line with this, competent election organizers who have integrity significantly impact the overall quality of the implementation of the election. As such, it is important to pay special attention to the selection of KPU members, especially in the regions, which is gateway to fair, transparent election process in the regions, which leads to unity in the Unitary State of the Republic of Indonesia (NKRI). Justice Guntur also believes that good procedure will more impressive when transparency, fairness, objectivity, independence, and professionalism is included in the norms petitioned, in order to become guidelines for better management and synergy between the central, provincial, and regency/city KPU.
“Based on the abovementioned considerations and framework, once again, although the a quo petition did not enter the plenary hearings, I believe it should be granted in part,” he stressed.
Also read:
Petitioner Alleges KPU Members Selection Team Centralistic
Dogiyai KPU Ex-Chief Questions Incompetent Electoral Selection Team
The Petitioner asserted that the a quo articles were related to the mechanism for nomination, election, and certification of regency/city KPU members by a selection team under the Central KPU, which he claimed to have been centralistic. He also believed that the selection of KPU members was the gateway to realizing a direct, public, free, confidential, honest, and fair election process. Failure to produce KPU members with integrity at the central level will certainly affect the quality of election organizers at the provincial and regency/city (KPUD) levels. The articles petitioned, he alleged, had caused inequality of access to opportunities to become KPU members, especially members of the regency/city KPU, because the entire mechanism of nomination, election, and determination is carried out centrally by the selection team, which is under the control of the central KPU. The Petitioner believed the selection team and the election process organized by the central KPU to select candidates of regency/city KPU members was too centralized, so elected regency/city KPU candidates tended to represent the central KPU more and did not understand the conditions in the regions.
Based on those arguments, the he argued that Article 31 paragraph (1), Article 33 paragraph (1), Article 34 paragraph (1), Article 37 paragraph (4), and Article 39 paragraph (3) of the Election Law had clearly and manifestly contradicted the principles of decentralization, equality, and equal opportunity to participate in local government positions, especially to become members of the regency/city KPU members as guaranteed in Article 1 paragraph (2), Article 18 paragraphs (1) to (4), Article 18A paragraph (1), Article 27 paragraph (1), and Article 28 paragraphs (1) and (3) of the 1945 Constitution.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
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.
Wednesday, August 30, 2023 | 19:43 WIB 136