March 2, 2024

Authority Expansion of Bawaslu and Election Law Enforcement

Election law revision is still in progress, some of it are reinforcement or expansion of Bawaslu and staff*s authority in dealing with election disputes, for example, disputes in the nomination, administration on 2015 dispute settlement was in fact did not run well. This settlement was protracted so that Bawaslu expanded its authority in enforcing law on money politics up to disqualifying candidates of regional head convicted of political crimes for money. Basically strengthening Bawaslu*s authority was a breakthrough and a very good proposal. Therefore the Independent Committee for Election Monitoring (KIPP) Indonesia supports the law election revision that strengthen or expand the authority of the Election Supervisory Body and its staff in handling disputes and other offenses, with some notes and important things that need to be considered in the revision of this election Law especially concerning law enforcement, in addition to those already submitted by fellow election of NGO observers:

First, according to the current Law, Bawaslu*s authority is broad enough, both in administrative dispute and election-related crime. In administrative disputes, Bawaslu*s decision should be binding. This nature applies to both the Commission and the participants in the elections. While in election-related crime, for example, Bawaslu is given the authority to determine whether the violation is classified as election-related crime or not next step becomes Gakumdu authority. However, during this time Gakumdu is not effective in settling disputes. It is therefore unsurprising when there is a proposal to expand Bawaslu*s authority.

Second, problem of number of electoral violations that can not be followed up are not caused by Bawaslu*s limited authority, but it is mainly due to the formulation of the offense and time limitation to follow up the determined violation before it expires.

On money politics, for example, we need expansion of legal subjects which can be categorized as performer of money politics. If these things can be fixed and added by institutional authority, law enforcement of general/regional elections is believed to be more effective.

Election law revision is currently expected to cover all aspects concerning law enforcement of general/regional elections so that consistency of law enforcement can serve to prevent the occurrence of crime in a wider scale such as election frauds conspiracy.

Third, if we look at the decisions of DKPP about violations committed both by organizers and supervisors particularly by Bawaslu that is being proposed to be expanded its authority, if not accompanied by, 1) standard as a track to make similarities in treating same issues/cases. For example case A in Aceh and Papua should have the same solution. What then becomes a problem is that apparently they are not resolved the same way. So before issuing it, Bawaslu must evaluate itself related to this problem. Then 2), the issue of supervisory capacity, whether recruitment and improvement pattern of existing capacity is sufficient or qualified for supervisors with additional responsibilities of this new (extended authority). We know that during the elections in 2015, DKPP issued a decision to quit members from the Provincial Election Supervisory Body, the Supervisory Committee Regency / City, as well as the decision in the form of a warning. If point 1 and 2 are not completed, it would be better to rethink about expanding Bawaslu*s authority, especially Panwas is now an ad hoc so that it is possible that [expanding authority] will be a boomerang.

Furthermore, what is important to be noted about the need of qualification to be a member of Bawaslu and its staff is if its authority is expanded, such as electoral experts, criminal law and governance experts, IT and others.

Fourth, other things that practically limit the effective performance of the organizers of the election, both KPU and Bawaslu, including: 1) some criminal offense do not include the threat of criminal sanctions. Electoral Law only mentions “shall be punished in accordance with the provisions of law”. For Gakumdu or law enforcement, this provision is unclear, because they think that the law intended is Electoral Law. They did not want to turn away to Criminal Code because they do not consider this as Electoral law. 2) Provisions regarding the implementation requirements plenary of KPU and Bawaslu. In the current provisions, member of KPU or Bawaslu can be threatened doing violation of ethics, if three (3) times in a row does not follow the plenary. It should not need to be consecutive; just 3 times do not follow the plenary without a justifiable reason. In practice, if KPU or Bawaslu split or conflictual relationships occur, they each take turns holding a manner not to present in plenary with the hope of not reaching a quorum.

Fifth, other sanctions in election other than administrative and criminal need to be considered. Sanction in a form of vote*s reduction of candidates is needed if violation performed is intended to get votes through unauthorized or illegal votes. In election, the most feared deterrent effect is the reduction of the vote of the candidate pair. Similarly, corruptors who fear impoverished rather than imprisonment.

Above notes are critical notes if Bawaslu and its staff are to be expanded its authority in carrying out its functions and duties, especially in dealing with disputes or cases and violations of general/regional elections as well as a brief description of the effectiveness of the performance of the election organizers, and sanctions for candidate pair that justifies any means to achieve votes in illegal ways.

The proposal to expand the authority of the Election Supervisory Body is a breakthrough that deserves appreciation for effective organization of general/regional elections, especially in terms of handling cases or disputes of general/regional elections. Effectiveness is absolutely necessary in enforcing the law against violations of administrative or election-related crimes. Accumulation of administrative violations or election-related crimes not a target of law enforcement has the potential to become a legal conflict or post-election political conflict. []

Girindra Sandino

Caretaker of KIPP Indonesia

Translated by SL