One of the basic principle of electoral management process is efficiency. It is expected that all members and staffs of the election management body in a country will heed to this principle whenever they perform their job. Quoting Harrington Emerson, efficiency is the discrepancy between input and output (the difference between result and the resources that were used).
When I write this line, the Elections Law Bill has already been passed and is being registered before fully implemented as applicable law. According to Article 72 of Law No.12/2011 on the Law Making Process, every bill that has been passed into a law shall be submitted to president to be authorized as applicable law.
In only a few days we will have our new Elections Law. President Joko Widodo has to authorize the Bill no later than August 21st 2017.
After that, the Elections Monitoring Body (Bawaslu) in almost 34 provinces in Indonesia will hold recruitment process to recruit new members. For example, the Bawaslu of the Province of Lampung based on the Decree of Recruitment Team No.1/TIMSELLPG/2017 shall announce the recruitment process to the public on July 17th until July 23rd 2017, while they also shall announce the result of the interview process by the National Bawaslu on August 22nd 2017.
As we can see, both the authorization of the Bill and the start of the recruitment process of Bawaslu will be held almost at the same time. In fact, if President Joko Widodo authorized the Bill much earlier than August 21st, then Bawaslu should refer to the new Elections Law, which contains many different provision from the previous Law No.15/2011, as the legal basis for their recruitment process.
There are several changes brought about by the new Elections Law. For example, the total member of Elections Commission (KPU) and Bawaslu at provincial level is added with five or seven more members, while Bawaslu’s subsidiaries at regency/municipality level (Panwaslu) is turned into permanent institutions from previously just ad hoc institution. The total member of KPU at regency/municipality level is also increased according to territory size and size of population.
Minimum education requirement for Bawaslu member at regency/municipality level is also altered from previously bachelor’s degree into high school diploma. Meanwhile, minimum age requirement is also altered from 30 years old into 35 years old.
In legal context, there is a principle known as lex posterior derogate legi priori, which means new laws shall supplant the old ones. This principle should be adhered to when we are faced with new laws while the old laws are yet to be revoked. The Laws No.15/2011 should, of course, be supplanted by the new Elections Law once the new law has been authorized. In Article 571 of the new Elections Law, there is even a provision which states, Laws No.15/2011 shall be revoked once the new Elections Law is legally enforced.
Should Bawaslu Continue the Recruitment Process?
Actually, the new Elections Law in Article 564 states that any ongoing recruitment process in Bawaslu shall be proceeded according to the provisions contained in the Laws No.15/2011.
This is clearly the legitimate legal basis for Bawaslu to continue their recruitment process and to use the old regulations as the legal framework for the process. This means, according to Laws No.15/2011, Bawaslu only need to recruit three members for every Bawaslu branch in local area and the minimum age requirement for the candidates is 30 years old.
Meanwhile, according to the new Elections Law, the total member of provincial Bawaslu is five to seven members (depends on the size of area and population of the province). As the consequence, Bawaslu will have to recruit more people so the total number of member is adequate with what is mandated by the new Law.
Article 563 of the new Elections Law on the membership of the election management body (EMB) that is enforced based on the Law No.15/2011 states that every EMB member shall carry out his/her duty until the end of his/her term. Therefore, every Bawaslu member selected in the recruitment process will be a member of Bawaslu for five years time.
Based on the legal framework as mentioned above, I conclude that Article 564 that is used as the basis for Bawaslu to hold the recruitment process will lead to several problems.
Firstly, there will be many candidates who automatically fail to pass administration requirement imposed in the new Elections Law. Law No.15/2011 states that candidate shall at least 30 years of age, while the new Elections Law require candidates to be at least 35 years of age.
Secondly, there will be discrepancy in regards with term of office among Bawaslu members. Three Bawaslu members recruited based on Law No.15/2011 will have different end time of their term of office with the other members recruited based on the new Elections Law.
Thirdly, the recruitment process will consume so much money because Bawaslu will have to hold the process twice (first, the recruitment process as mandated by Law No.15/2011 and, second, the recruitment process as mandated by the new Elections Law).
Fourthly, it is not necessary for Bawaslu to hold recruitment process immediately because most of the members will end their term of office in September 2017. Even in province that will run local elections next year, it is better for Bawaslu to postpone the recruitment process since the new Elections Law will be in effect automatically thirty days after it has been authorized by president, that is on August 21st 2017. Bawaslu should just wait for the new Elections Law to be in effect before proceeding with the recruitment process. This way, all of the members recruited will have synchronous term of office.
As a conclusion, I wholeheartedly believe that it would be better for Bawaslu to reconsider their decision to continue the current recruitment process. As I have explained above, there are risks and downsides in insisting to continue the recruitment process based on the old Law No.15/2011.