Parliament plans to revise election law is something appropriate. Because it is based on last 2015 simultaneous elections, a quo Law which serves as guidelines in organizing these elections, in fact has some defects. And of course, revision should be implemented as soon as possible, because the next stage of the elections (2017) will be in months count.
One of the crucial issues that is important for limited revision by the Parliament is the provisions of election political bribery. Parliament plans to change the terms of political bribery in terms of action accountability.
Reputedly, Parliament calls for administrative sanctions. They reason if they apply criminal responsibility, it will be difficult to get the doer.
In my opinion, Parliament decision is inappropriate. Therefore, this writing focuses on (1) To whom is administrative sanction actually appropriate to be applied? (2) If the political bribery of election is going to be revised, how will the revision trap the doer?
It is actually not difficult to understand, to whom the actual administrative sanction applies. Because almost all laws which gives authority to every government leaders, namely position holder whether executive, legislative, or judicial branches of government has been clearly explained, they hold administrative responsibilities when they perform actions that may damage their honor and dignity.
In that context, the Regional Head Candidates are not state officials yet. Therefore, it is inappropriate if administrative sanctions are applied to them.
We should keep in mind that administrative sanction is attached to “acting leader” which is morally binding to keep the honor of the acting leader. It is illogical if acting leader, who should maintain their position dignity, is to be sanctioned administratively in a form of Regional Candidate dismissal, because their status is still a candidate, which is not certain to be elected as the regional head.
So in the writer*s opinion, it is not a revision on form of political bribery responsibility that becomes a problem (so that many perpetrators are unstoppable), but on the provision itself which is not clear in including criminal sanctions. Because how a provision becomes effective, if the inclusion of criminal sanctions seems to be half-hearted.
If the inclusion of criminal sanctions seems to be half-hearted, what about the revision?
Judicial flaw on political bribery in the acting Law is “fairly severe” if noted carefully. Political dowries and money politics in the law is deliberately obscured from criminal sanction.
In political dowry provisions, there is an article that can trap political party which receives compensation (political dowry) of prospective regional candidates. Political parties are threatened with fines of criminal sanctions and will be disqualified as a party that can no longer nominate regional candidate in the next election in that area. However, prospective regional candidates as the dowry giver are not included in any kind of basic criminal sanctions (imprisonment or fines for example).
Even so its provisions can disqualify the Regional Head Candidate if during nomination process is involved as dowry giver, but it will be impossible to entice the disqualification provision, if there is no primary criminal threat.
Logically, it will be confronted with problems like how is it possible to process the dowry giver in the process of criminal procedural law, if a series of actions are not followed by the principal criminal threats. It will be clearly useless, because investigator, prosecutor and trial judge, are locked with each construct procedure of “perpetrator is subjected to sanction if there is a primary criminal threat”.
Not only that, the ineptness of political bribery provisions of the elections on money politics are also unclear. Prohibition on the act is included on the election law; however criminal threat refers to Article 149 of the Criminal Code. In the construct of criminal law, clearly this model is very ambiguous and thus essentially violate legal maxim of criminal law.
So what happened? As we can see that in every money politic occurred in last 2015 election, KPUD, Election Oversight Committee/Election Oversight Body (Panwaslu/Bawaslu), and investigator referred to the Criminal Code and did not apply procedural law on the acts with common method (Criminal Code Procedures) which the conviction was not possible to result in disqualification of the Regional Head candidate if he/she was proven to perform it.
Therefore, this law needs to be revised; First, both dowry giver and receiver should be charged with primary crimes (imprisonment or fines) followed by revocation of political rights (right to be elected) for the perpetrator. Second, prohibition on money politic in election law should have accommodated primary crime sanction (imprisonment or fine) in one provision (do not refer to Criminal Code) followed by revocation of political rights (right to be elected) for the perpetrator.
There is no logical ratio that can be a basis for political bribery to be categorized as administrative violation. Thus, the best solutions is to keep the act as a crime, a prerequisite to build a careful criminal provision, in a hope that democratic principles promoted during election will always be maintained.
DAMANG AVERROES AL KHAWARIZMI
A Graduate Student of Law, UMI & Owner of negarahukum.com
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