The Petitioner’s legal counsel for the judicial review of Law No. 7 of 2017 on General Elections presenting the subject matter, Thursday, (12/21/2023). Photo by MKRI/Panji.
JAKARTA (MKRI) — Advocate Gugum Ridho Putra challenges the provision on election campaign in Law No. 7 of 2017 on General Elections (Election Law). He argues there is a legal vacuum in the provisions on campaign for the upcoming 2024 election amid potential for conflicts, TSM (structured, systematic, and massive) violations, and non-restriction of personal image.
“The Election Law has not anticipated the potential for intervention, abuse of power or influence caused by blood or marital relations between the president, vice president, ministers, governors, vice governors, regents, and vice regents, mayors, and deputy mayors with the election participants, whether it is the presidential and vice-presidential candidates or candidates for members of the DPR, DPD, provincial DPRD, and regency/city DPRD,” said the Petitioner’s legal counsel M. Iqbal Sumarlan Putra at the preliminary hearing on Thursday, December 21, 2023.
State Officials’ Campaign
The Petitioner of case No. 166/PUU-XXI/2023 explained that the president, vice president, ministers, governors, vice governors, regents, and vice regents, mayors, and deputy mayors should be prohibited from participating in the campaign of their families who are election participants. This is regulated in Article 22E paragraph (1) of the 1945 Constitution, which requires elections to be held freely, honestly, and fairly.
The principle of honest elections is realized by imposing the obligation on all parties involved in elections, including organizers, the Government, political parties, participants, supervisors, and election observers as well as voters to comply with applicable laws and regulations. Meanwhile, the principle of fair elections requires that all parties involved receive an equal treatment and are free from violations.
The Petitioner stated that allowing the president, vice president, minister, governor, vice governors, regents, and vice regents, mayors, and deputy mayors to participate in the campaign of their family members who are directly involved in the election contradicts the principle of free, honest, and fair elections. The physical presence of these officials would send a strong non-verbal order to the public, indirectly urging the entire community to participate in the election and support their family members involved in the election.
“For these reasons, the absence of such prohibition clearly violates the principle of free elections,” said Iqbal.
TSM violations
The Petitioner also questions the absence of a prohibition for “other parties” outside of election participants, campaign organizers, and campaign teams to provide money or other materials to influence election organizers and/or voters in a structured, systematic, and massive (TSM) way. The absence of this prohibition means that any TSM violations committed by parties other than election participants, campaign organizers, and campaign teams cannot be considered TSM violations.
Likewise, candidate pairs who receive benefits or are benefited by TSM violations committed by other parties also cannot be subject to disqualification.
Personal Image
In addition, the Petitioner questions the absence of prohibition for election participants on using personal images in the form of photos/images, sounds, combined photos/images and sounds with digital manipulation, creation, alteration, digital removal or artificial intelligence (AI) technology are considered as if they were authentic personal images. Through technological advances, election participants can exaggerate their image beyond the actual situation. The absence prohibition on such a thing can cause misinformation among voters, potentially manipulating voters’ perceptions of candidates, leading voters to use their voting rights in a misguided voting.
The Petitioner explained that the Election Law has not regulated personal image of election participants that will be used in campaign materials. Restrictions on the use of digital technology, including AI, have also not been regulated. As a result, election participants can freely polish their images without restrictions.
“The impression presented in a digitally-enhanced personal image is not the same as the actual situation. Therefore, if voters are influenced to make their choices based on such exaggerated personal images, it can be considered as manipulation of the exercise of their voting rights,” he explained.
Petitum
In the petitum, the Petitioner requests that the Court declare Article 1 point 3, Article 274 paragraph (1), Article 280 paragraph (2), Article 281 paragraph (1), Article 286 paragraphs (1) and (2), and Article 299 paragraph (1) of the Election Law unconstitutional. He requests that the Court re-interpret each of these norms as follows:
Article 1 point 35 to read: “Electoral Campaign is the activity by Election Contestants or other parties appointed by Election Contestants to persuade voters to vote a certain way by advertising a particular Election Contestant’s vision, mission, platforms, and/or image in the form of number and the latest photos/pictures of the Candidate Pairs, candidates for DPR, DPD, Provincial DPRD, Regency/City DPRD without digital manipulation or artificial intelligence (AI) technology.”
Article 274 paragraph (1) to read: “Campaign Content shall include: a. vision, mission, and policy platform of the presidential candidate ticket; b. vision, mission, and policy platform of a political party contesting in a legislative election, which will be implemented by their representatives in the DPR, Provincial DPRD, and Regency/City DPRD, if elected; c. vision, mission, and policy platform of individuals which they will implement in the DPD, if elected; d. personal image of the number and the latest photo/picture of the Candidate Pair, candidates for DPR, DPD, Provincial DPRD, Regency/City DPRD without digital manipulation or artificial intelligence (AI) technology.”
Article 280 paragraph (2) to read: “A campaign organizer and/or campaign team, in holding a campaign activity, is prohibited to involve: a. chief justice, deputy chief justice, junior secretary on court of the Supreme Court, and all justices in the Supreme Court as well as in the Constitutional Court; b. head, deputy head, and members of the Audit Board of Indonesia; c. governor, senior deputy governor, and deputy governor of the Bank of Indonesia; d. member of the board of directors, commissioners, supervisors, and employees of state or region owned enterprises; e. state officials that are not members of political parties, serving as a leader in non-structural institutions; f. civil servants; g. active members of the National Military (TNI) and the National Police Force Republic of Indonesia; h. village head; i. village staff; j. members of the village consultative body; k. an Indonesian citizen without the right to vote; and l. president, vice president, ministers, governors, vice governors, regents, vice regents, mayors, and deputy mayors who are related by consanguinity or by marriage up to the third degree or marital relations despite a divorce with the Candidate Pair, candidates for DPR, DPD, Provincial DPRD, Regency/City DPRD, and have conflicts of interest with the duties, authorities, and rights of their respective positions.”
Article 281 paragraph (1) to read: “An electoral campaign involving a president, vice president, minister, governor, vice governor, regent, vice regent, mayor, and/or deputy mayor must fulfill the following provisions: a. not using any state facilities awarded to that position, except for security details for a state official in accordance with provisions of applicable law; and, b. on unpaid leave, therefore temporarily not receiving payment under state budget; c. not being related by consanguinity or by marriage up to the third degree or, or having a spouse relationship even after divorce, with the Presidential Candidate Pair, candidates for the DPR, DPD, Provincial DPRD, Regency/City DPRD, and not having the potential for conflicts of interest with their respective duties, powers, and rights.”
Article 286 paragraph (1) to read: “Presidential candidate tickets, candidates of members of the DPR, DPD, Provincial DPRD, and Regency/City DPRD, campaign organizers, and/or campaign teams, as well as other parties are prohibited from providing money or other gifts to influence Election Organizers and/or Voters.”
Article 286 paragraph (2) to read: “Presidential candidate tickets and/or candidates of members of the DPR, DPD, Provincial DPRD, and Regency/City DPRD proven to have committed violations and/or obtained benefits or benefited from violations as referred to in paragraph (1) based on Bawaslu’s recommendation shall be punished with the administrative punishment of disqualification from being presidential candidate tickets and/or candidates of members of the DPR, DPD, Provincial DPRD, and Regency/City DPRD by the KPU.”
Article 299 paragraph (1) reads: “The President and Vice President have the right to campaign as long as not having consanguinity or kinship by marriage up to the third degree, or having a spouse relationship even after divorce with the Presidential Candidate Pair, candidates for the DPR, DPD, Provincial DPRD, Regency/City DPRD, and not having potential for conflicts of interest with their respective duties, powers, and rights.”
Justices’ Advice
This panel hearing was chaired by Chief Justice Suhartoyo, alongside Deputy Chief Justice Saldi Isr, and Constitutional Justice Arief Hidayat. In his advice, Deputy Chief Justice Saldi stated that the Petitioner must be able to elaborate on the loss of constitutional rights due to the articles being challenged with the touchstones.
Similarly, Constitutional Justice Arief Hidayat encouraged the Petitioner to articulate the conflict between the Election Law being challenged and the articles in the 1945 Constitution (touchstone) clearly and comprehensively. He also stated that the law always lags behind the development of society, including technological and informational advances. Therefore, from a normative perspective, to avoid legal vacuum, he observed that the Petitioner intends to prompt the Constitutional Court to act as a positive legislature or add new norms.
“So, it is necessary to establish a narrative theory that explains that the law always lags behind society, and if it has to be developed by the legislative body, it takes time. Therefore, the Court [may act] through its positive legislature function,” he said.
Author : Mimi Kartika
Editor : Nur R.
PR : Raisa Ayuditha Marsaulina
Translator : Najwa Afifah Lukman/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.
Thursday, December 21, 2023 | 14:44 WIB 259