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Selecting New Electoral Regulators with Integrity

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The Special Team for the Selection Process of New Members of EMBs (Election Management Bodies) is looking for candidates who are able to translate the electoral laws into concrete technical regulations.

The Special Team which was formed by President has interviewed candidates for the new Election Commission (KPU) members on January 23rd – 26th 2017. The Special Team emphasized on candidates’ ability to translate election laws into technical regulations.

KPU has the authority to establish its own regulations derived from Indonesian laws. We are looking for candidates with the ability to establish such regulations,” says Saldi Isra, the Chief of the Special Team, during a recess (01/24).

The Maker of Electoral Technical Regulations

The third section of the Law 15/2011 on Election Management Bodies specifies the rights, duties, and responsibilities of KPU in organizing elections. One of the duties and responsibilities are to formulate and execute electoral technical regulations for electoral process after previously consulting members of the Parliament and Government.

In formulating the regulations, KPU is expected to issue regulations that can provide legal certainty. This is not an easy task because it implies KPU will have to formulate regulations derived from laws which in itself is a product of political process.

Many people agree KPU will have difficulties in exercising this duty because KPU will have to organize the first concurrent national elections in 2019 as mandated by the Constitutional Court’s Decision No.14/PUU-XI/2013.

Not only that, until today members of the Parliament are still discussing and formulating the Bill for the new Elections Law needed for implementing the 2019 National Elections. The first phase of the Elections, political party verification, is assumed to begin 22 months before the voting day, which is June 2017. However, the Election Laws until now has not been completed for indefinite amount of time.

The new way of how we do the election (concurrently) is at the same time faced with great challenge. There will be greater needs of improved administrative capacity. There are at least ten new regulations that need to be created and implemented,” says Sigit Pamungkas, a KPU member who is rerunning for another term, during the interview (01/26).

There will not be enough time for KPU to formulate technical regulations for the upcoming concurrent national elections in 2019.

It is therefore out of necessity the Special Team for the Selection Process is concentrating on the ability of candidates to translate election laws into technical regulations during the interview process.

Pramono Ubaid Tanthowi, the current Chairperson of the Election Monitoring Body (Bawaslu) of Banten who is running for a membership at KPU, was asked by Erwan Agus Purwanto from the Special Team about concurrent elections. According to Pramono, concurrent elections is not entirely new for Indonesia. The Province of Lampung once implemented concurrent governorship election on the same day as its legislative election.

However, currently KPU does not have definitive legal framework. I understand that it would be a challenge for KPU to translate the new Elections Law into more technical regulations in accordance with the principles of free and fair election,” says Pramono (01/25).

Pramono was also asked by the members of the Special Team about the idea to redistricting the electoral district for the 2019 legislative election. Article 539 in the Elections Law Bill mandates the authority for KPU to conduct redistricting over electoral areas delimited after the 2014 National Elections.

The most important aspect is relocation. The current trend among parliamentarians is to increase the number of seats per electoral district to cover for provinces that are lacking. This is a mistake and will never resolve the problem,” says Pramono.

The same question was also wasked to Ida Budhiati, an incumbent candidate for KPU membership selection process. Ida argues redistricting should consider proportional and equal representation of population in each area. “Ideally, redistricting should be conducted in accordance with the total population of the area,” says Ida.

Another candidate, Yessy Momongan, the Chairperson of KPU of North Sulawesi, was asked about the biggest challenge and intimidation she had endured during making electoral technical regulations. Yessy then tells the story of when she had to decide the day of voting has to coincide with important religious holiday in Minahasa.

There are many religious leaders reject my decision. However, the election could not be conducted the next year. What I did was to meet and discuss the matter with the religious leaders,” Yessy says.

Intervention Immunity

With the enforcement of Law 10/2016, many politicians from the Parliament are having bigger opportunities to intervene KPU’s decisions. Article 9 in Law 10/2016 dictates that KPU shall conduct consultation sessions with members of the Parliament whenever they (KPU) want to formulate and impose new regulations, and the decision made in the consultation sessions shall be legally binding.

Members of the Special Team for the Selection Process of new KPU members asked many questions regarding this issue. These questions were asked to assess the integrity, independence, and the immunity of candidates to political intervention.

Muhammad, the Chairperson of the Election Monitoring Body (Bawaslu) who is running for a membership at KPU, argues that the consultation obligation does not intervene with EMBs’ independence. Unlike KPU which filed a request for judicial review of the Law to the Constitutional Court, Muhammad and Bawaslu directly asked Parliament and Government the reason behind the implementation of the Law. “According to many parliamentarians, the Law was passed because many EMBs often establish regulations not in accordance with applicable laws. Does the Law intervene with EMBs’ independence? I say no,” says Muhammad.

Ferry Kurnia Rizkiyansyah, a current KPU member and incumbent candidate in the selection process, was interrogated by Saldi Isra regarding KPU’s indecisive attitude towards local election candidates from conflicting party. KPU issues a regulation to accommodate the candidacy of candidate from conflicting party, as long as the candidate can conjure up letter of approval from both conflicting groups within the party. “Why does KPU issue such regulation? Don’t you know that the regulation is violating the laws?” Saldi asks.

Ferry admits that at that time KPU was making a mistake. He says the regulation was the result of mandatory consultation with the Parliaments. This is actually one of the reasons why KPU file a request for judicial review to the Constitutional Court. “The condition at that time was complicated,” Ferry argues.

Incumbents Are Most Likely to Be Selected

Ferry Kurnia Rizkiyansyah, along with Ida Budhiati, Arief Budiman, Hasyim Asy’ari, and Sigit Pamungkas, are often mentioned by Saldi Isra at the end of the interview process when he was asked by journalists which candidates are the most likely to be selected.

Those names become the top candidates because they are relatively able to answer interviewers’ questions more fluently because of their working experience in previous term. KPU’s ability to translate applicable laws into technical regulations has been proven by many legal breakthroughs in the form of KPU Regulations (PKPU). KPU is also able to handle political intervention in the PKPU pretty well.

Ida Budhiati, during the interview, describes her experience in managing the effect of mandatory consulation obligation as contained in Article 9 Law 10/2016 to her institution. “To be considered as legally binding, the result of the consultation should be issued as an official written decree by the Parliament. Otherwise, it would be hard for us to take the result seriously,” says Ida.

Ida emphasizes the importance to be faithful to applicable laws whenever KPU is facing political intervention. That is how Ida defines EMB’s integrity.

Other incumbent candidates have similar answer with Ida. Hasyim Asy’ari, for example, says that “EMB’s integrity is shown by faithfully implementing applicable laws whenever there is undue request to steer KPU into other direction other than what have been set in the laws,” says Hasyim.

The Special Team have interviewed all the incumbent candidates along with thirty one other candidates at the Ministry of Home Affairs. The Special Team will then select fourteen names to be proposed to President and, based on President deliberation, to the Parliament. The Special Team expects to be able to publish the result of the selection process soon enough.

Probably (we will publish the result) on January 30th or 31st, or maybe on February 1st,” says Saldi Isra.

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