Last week, 226 lawmakers put an end to the direct election of governors, mayors and regents. The new Regional Elections (Pilkada) Law will authorize legislative bodies to nominate and select the candidates for local leaders. Gone are the days when the people were directly involved in the election process. Gone are the days when independent candidates had an equal chance to compete with party-backed hopefuls.
The Pilkada law has undoubtedly harmed Indonesia’s much-praised democracy. More than that, it contravenes the country’s Constitution. This troublesome law must be challenged on several fundamental grounds. The amendment of Article 1 paragraph (2) of the Constitution clearly states that the people hold the highest sovereignty. It is not for nothing that the sovereignty of the people comes first in the Constitution. Through the value of sovereignty, every Indonesian has the right to create and drive the government and, therefore, holds control of the direction in which the country is going.
The Constitutional Court decreed in 2008 that the sovereignty of the people was “a very basic constitutional principle, which not only determines the form of government but also the legal instruments in politics. The principle must uphold human rights as the foundation of human dignity”.
The sovereignty principle is manifested through the direct-election system. The amendment nixed the authority of the People’s Consultative Assembly (MPR) to elect the president and vice president and the authority of lawmakers to appoint local leaders. Unless the Constitution regulates the transfer of sovereignty to legislators, the people’s fundamental right to elect their leaders must be fulfilled.
Under the Pilkada law, the people’s voting right is scrapped as legislators will have the ultimate authority to elect regional leaders. It contradicts the Constitution’s Chapter VI, which states that Regional Legislative Council (DPRD) and regional leaders have an equal position in the regional administration as both are directly elected by the people. The implementation of the Pilkada law will disrupt the function of checks and balances in the administration.
The law potentially contravenes other regulations such as the law on elections for the House, Regional Representatives Council (DPD) and DPRD members, as well as the law on the election of the president and vice-president. Both refer to the direct election mechanism.
There is another contradiction related to election regulations in special regions such as Aceh and Jakarta. Article 65 of the Aceh Administration Law and Article 10 of the Jakarta Administration Law mandate the two provinces to implement direct elections for their local leaders.
The Pilkada law, therefore, creates unfairness and legal uncertainty for election practices in Indonesia. While people in Aceh and Jakarta can directly choose their own leaders, people in other provinces lose their voting rights. The Constitutional Court, when granting direct elections for Aceh, said that there should not be dualism of laws in elections. The court’s ruling in 2007 stated that dualism of laws denied the equality before the law and government as mentioned in the Article 28D of the Constitution.
The lawmakers endorsing the Pilkada law argued that indirect elections still followed democratic principles because legislators were the people’s representatives. However, the Constitutional Court’s ruling in 2013 mandated that the term “democratically elected” must accommodate the real voice of the people and the article mentioning “democratically elected” should be understood to mean direct elections. In fact, Indonesia has witnessed numerous peaceful direct elections throughout the country in the last 10 years.
Following the 1998 reforms, Indonesia has implemented elections in accordance with direct, general, independent, confidential, honest and fair principles. According to the Constitutional Court, those principles must be upheld in the conduct of any election, including regional elections.
Under the new Pilkada law, violations against those principles are likely to happen. The elections will take place in legislative bodies with all the possibility of back-room deals and will not include the independent organizers we have known so far. The selection teams organizing the elections will consist of councilors of various political parties, whose neutrality, independence and impartiality are questionable. Instead, the selection teams will instill distrust and a sense of unfairness because they will probably carry their own political agendas and interests.
Despite the law accommodating independent hopefuls to run for election, the indirect election mechanism will put them in a weak position in head-to-head battles with party-backed names. People who vote for independent candidates will not be properly represented in the legislative bodies. When the voices of some people are not accommodated, once again, it is a violation of the people’s sovereignty.
The Pilkada law is a serious threat to democracy and human-rights fulfillment in Indonesia. The time when people were voiceless and powerless must remain in the dark history, not became the future of this country. Hopes are high that the Constitutional Court will overturn the law and preserve the democratic transition for which we have all been struggling for 15 years.
The writer is a researcher and human rights advocate at the Institute for Policy Research and Advocacy (ELSAM), Jakarta.
Published at The Jakarta Post, Fri, October 03 2014.