The Fifth National Conference of Constitutional Law
“CHALLENGES INPRESERVING SOVEREIGNTY OF THE PEOPLE IN GENERAL ELECTION”
Center for Constitutional Studies (PUSaKO) Faculty of Law Andalas University
Election is an instrument to actualize the sovereignty of people. As the main source of the power, election must be prevented from any misuse, fraud, and any action that could prey democratic government. As the consequence, election must be enforced consistently by upholding the transparent, fair, and democratic principle.
In order to realize an fair and democratic election, every aspects of election such as regulation, organizer, and commitment of stakeholders must be settled wisely in one atmosphere. Among all of those aspects, regulation on election is one of the primary factor. Because the regulation works as guidance for the people to participate in election and accelerate their function. As guidance, electoral regulation should be able to to interpretate the principles and mechanism which is demanded by the constitution.
Regarding the principle of implementation, Article 22E Paragraph (1) of the 1945 Constitution explicitly stated, general elections must be carried out based on the principles of direct, free, confidential, honest and fair. Norms which are later known as the principles of the election must be translated in such a way into the electoral law, so that the contestation that occurs in elections runs honestly, fairly and democratically.
According to Ramlan Surbakti, there are at least seven criteria that must be met to realize fair and integrity elections.Those criteria are: 1)equality between citizens, not only in voting and counting of votes, but also in the allocation of seats in the DPR and DPRD and the establishment of electoral districts; 2)legal certainty formulated based on the principles of democratic elections; 3)free and fair competition between election contestants; 4)participation of all stakeholders in all stages of the implementation of the election; 5)professional, independent and impartial election management bodies; 6)integrity of voting, counting, tabulation and reporting of election votes; 7) settlement of fair and timely election disputes.(Kompas, 2014, 14/02).
Apart from being able to absorb and emphasize the principles of honest and democratic elections, the mechanism of the election organizers as outlined in the electoral regulation must also be able to maintain the mandate of the constitution inherently. In Article 22E Paragraph (2) of the 1945 Constitution it is affirmed that general elections are held to elect members of the DPR, DPD, President and Vice President and members of the DPRD. In addition, several other constitutional norms such as Article 6A, Article 22E Paragraphs (3) and (4) of the 1945 Constitution. These norms contain directives related to the mechanism for organizing elections, both regarding the subject of the office position to be elected and the relationship between the Legislative and presidential election management bodies.
Furthermore, besides being able to translate the mandate of the constitution, electoral regulation must also be able to absorb various evaluations of the previous elections. In this context, all weaknesses regarding both the procedure and the substance of the exercise of the right to vote must be consistently corrected. At the same time, electoral regulation is in the path and agenda of strengthening the presidential system in Indonesia by encourage simplification of political parties, establishment of strong authority and legitimacy for the implementation of elections and creating a culture of civilized democracy and not hijacked by the political oligarchy and capital strength (money).
All of the expectations above were initially superimposed on the establishment of Law No. 7 of 2017 concerning General Elections (Election Law). Because, as the first election regulation stipulating the simultaneous elections, the existence of the law was an important momentum to improve the mechanism for organizing election. Moreover, Law No. 7 of 2017 was also born on the mandate of the Constitutional Court Decision Number: 14 / PUU-XI / 2013 which stated that the implementation of the legislative and presidential elections will be held simultaneously in 2019 on wards. With this decision, the legal politics of legislator in Indonesia entered a new era. The necessity to rearrange electoral regulation becomes very important in these transition.
Unfortunately, new regulations in the new round of Indonesian elections has not been able to meet the expectations that are attached to them. Even though there are a number of content material that can be appreciated, some crucial materials such as maintaining the presidential threshold, electoral participation requirements, electoral arrangements and their respective authorities are still far from idealized conditions.
In fact, the new Election Law has not been able to answer the regulatory needs and problems in the implementation of previous elections. Such as in terms of prevention and law enforcement against the practice of money politics and thequalified and integrated legislativecandidacy process. Another challenge that has not been answered is how the process of law enforcement of process of disputes over election results does not exclude balanced aspects of verification and still in the concept of a speedy trial process. In some of these areas, the Election Law still not able to change and improve the situation significantly, so that the quality of elections is still difficult to be improved better than previous elections. Finally, as a means of implementing popular sovereignty, simultaneous elections will continue to be haunted by various problems which are actually very potential to make the people's sovereignty porous as stipulated in Article 1 Paragraph (2) of the 1945 Constitution.
The politics of electoral law and various issues surrounding the electoral regulation will be discussed in depth in an academic perspective through the 5th National Conference of Constitutional Law 2018.
Term of Reference (DOWNLOAD)