Solutions for Multiple Interpretation of the Presidential Election Law
09.57Syafri Hariansah S.H. M.H.
Academician/expert team the election supervisory
board
Tuesday, 1th July 2015
There was a
proverb about democracy and general election which says, “In a democratic
society, the poor will have more power than the rich, because there are more of
them, and the will of the majority is supreme.” That saying clearly indicates
how large is the power of citizen in determining a leader, as explained in some
theories of election in Indonesia where the principle of majority support
became absolute as a fundamental basis of the local general election.
Referring to
the constitutional basis, the law principle of general election implementation
in Indonesia had been regulated in article 6A paragraph (1) (2) (3) (4) (5).
Besides, regulation on the elected president had also been discussed in article
6A paragraph (3) and (4) of the constitution. Both articles stated that:
(3) The
candidate of paired President and Vice President which receives more than fifty
per cent of the number of votes in the general election, and receives no less
than twenty per cent of the votes in a province in a majority of provinces,
shall be appointed as the President and Vice President of the country. ***)
(4) In the
event where there is not a pair of President and Vice Presidenti candidate
happened to be elected, the people shall directly choose between the two
candidate pairs that received the most number of votes in the general election,
and the pair that receives the highest number of vote shall be appointed as the
President and Vice President of the country. ****)
If the
construction of this article was analyzed, then it can be understood that
general election in Indonesia had practiced principle of absolute majority
(absolute major votes) by percentage of 50%+1 and 20% in every area province or
17 provinces and used the principle of two round system (two round election).
It means that the article 6A paragraph (3) and (4) are only accepted when there
are at least two competing candidates. Next, the implementation of President
and Vice President roles is regulated by the law Number 42, Year 2008.
The main
problem is either constitution or the law Number 42, year of 2008, doesn’t
arrange more details about the number of competing candidates in the general
election. The main issue came to the surface at the time being is the one
regarding to the interpretation of Article 159 Paragraph 1, which is about the
total obtained votes gained by every competing candidate i.e. 50%+1 vote
obtained nationally and 20% in 17 regions of province. The consequence is, if
there is not candidate who obtained votes as regulated by the constitution, the
second round of the election must be conducted. Hence, the debates aroused.
Some opinions said that general election should be done only in one round for
the sake of cutting the cost; both President and Vice President election must
follow the law’s order in which if the vote result did not achieve certain
requirement then the election should be done in two rounds. Therefore, the
Article 159 Paragraph (1) is simply contradicted with Constitution 1945 Article
28D Paragraph (1). It is because this article is not believed to comply with
the certainty of law’s element as regulated in the Article 28D.
If we
analyze the opinions above one by one, it will definitely find certain positive
or negative perspectives. The first opinion said that if it is done
unconstitutionally, it means that there are not rules which could properly
govern the previous one. The second one agreed that it can be done but it has
consequences. In reality, people might vote the same candidates and it will
become a wasteful of budgetary fund, even if the presidential election might possibly
stimulate the transactional politics.
The similar
two alternatives were informed by General Election Committee (KPU) as the main
organizer of general election. Firstly, if it does not achieve the role then
the second round should be done with the same candidates. Secondly, if the
absolute majority vote stays unachievable then the candidates with most
obtained votes would become the elected President and Vice President. However,
if there is any decision made by the General Election Committee which is not
based on agreement and determination then this decision would become demandable
on the later days.
Does Constitutional Court (MK) work as a neutral
institution?
Theoretically,
MK has an authority to interpret the constitutional towards the 1945
Constitution of Republic of Indonesia. If Article 159 Paragraph (1) of the law
Number 42 Year 2008 is contradicted with Article 28D Paragraph (1) of the 1945
Constitution of Republic of Indonesia, then MK is obliged to make the decision.
However, it is right that MK has an authority to make constitutional or new
norm because it is considered as a negative legislator (norm wiper, not norm
maker), reminding that previously it had never arranged the mechanism of
presidential election with two competing candidates.
The
Government in lie of law as a solution
If we see
President’s right as legislature then we finished at the last solution where MK
did not give the interpretation. One of the president’s rights is to determine
The Government in lie of law (PERPPU). The President could determine it and
arrange the implementation of presidential election with two competing
candidates. Up to the implementation of presidential election 2014, this would
be well implemented and guarantee the principle of fairness and equity with The
Government in lie of law (PERPPU) as the basic law
Strange "water hack" burns 2 lbs overnight
BalasHapusAt least 160,000 women and men are utilizing a easy and secret "water hack" to burn 2lbs each night as they sleep.
It is effective and it works every time.
You can do it yourself by following these easy steps:
1) Go get a drinking glass and fill it up half full
2) Proceed to use this amazing HACK
so you'll become 2lbs skinnier in the morning!