The Law No.10/2016 has several articles that strengthen the law reinforcement of regulation on money politics. However, on the other side, there are also several articles that weaken it. The effect of the implementation of the law can be positive or negative, depending on the commitment of the election management body to guarantee the law enforcement in the electoral process.
Sanction to disqualify a candidate is regulated in Article 73. Paragraph (1) of the Article states that candidate and/or its campaign team is prohibited to provide money or any other kind of prizes to influence election officials and/or voters. Paragraph (2) of the Article states that any candidate proven to be committing violation as stated in paragraph (1) shall be disqualify according to the decision of the Provincial Election Monitoring Body (Bawaslu) as election candidate by the Provincial or Regency/Municipality Election Commission (KPU).
This article, however, is getting weaken by Article 135A paragraph (1). The Article states that the violation as stated in the Article 73 paragraph (2) shall fulfill the criteria of structural, systemic, and massive (SSM).
In the Explanation section of the Law No.10/2016, there is an explanation regarding the term â€œstructuralâ€™, â€œsystemicâ€, and â€œmassiveâ€. A violation is â€œstructuralâ€ if the violation is conducted by the apparatus, either state apparatus or the election official collectively. â€œSystemicâ€ means the violation has to be a well-planned and well-organized violation. Meanwhile, â€œmassiveâ€ means the violation has great impact toward the result of the election, not only renders a partial impact.
The Executive Director of the Association for Election and Democracy (Perludem), Titi Anggraini, said (07/21) the conjunction â€œandâ€ in the Article 73 paragraph (2) implies that the provision is meant to be cumulative. A candidate may only be disqualified if he/she conducted a violation with all those three criterias: structural, systemic, and massive.
â€œAccording to the definition provided in the Explanation section, it is implied that if a violation is not conducted by election apparatus, is not well-organized, and is not significantly affecting the result of the election, then the candidate who commit the violation shall not be disqualified. The Law imply a toleration toward money politics violation. We can even say the law legalize money politics as long as it does not structured, systematic, and massive,â€ Titi said.
In addition to that, Article 73 also separates violation conducted by the candidate and violation conducted by his/her campaign team by providing different sanction towards the two entities. Paragraph (2) is definitely weakening the law enforcement because it emphasize to disqualify a candidate if he/she is proven to be committing money politics violation directly. Paragraph (3) weakens the law enforcement further because it states that the violation will only be punished according to penal code if the violation conducted by the campaign team of the candidate. This means, the candidate itself is free from any kind of responsibility.
A political consultant, Yunarto Wijaya, during a public discussion on money politics at the Commission for Corruption Eradication (KPK) Office, said, every money politics in local election begins with the candidate handing out some money to his/her campaign team. It is the campaign team that will later distribute the money in many kind of ways: fresh money, pork barrel, and club goods.
The National Coordinator of the Network of Voters Education for the People (JPPR), Masykurudin Hafidz, said, based on past experience, there are no cases where the candidate handing out money directly to the voters. A candidate may handing out money to political party as political dowry, but such practice is very difficult to monitor.
â€œThere is cases where the candidate distribute money to voters disguised as music concert. However, such practice is rather difficult to be dealt with because the candidate does not directly influence the audiences to vote for him/her,â€ said Masykurudin (07/26).
â€œMoney distribution in that kind of concert only involves small money. The biggest detriment of money politics comes from the violation conducted by campaign team in the form of serangan fajar (money distribution in the early morning before the voting takes place) and pork barrel politics that start before the election process even begin,â€ Yunarto said.
Strengthening the Law Enforcement
Strengthening the election law enforcement is an achievement that shall be aimed in the second revision of the local election law that has many defects. The election official (election management body or EMB) is the one who can guarantee such strengthening by standing by its commitment to establish proper provisions for the electoral process.
There is a big challenge for Bawaslu to prove themselves worthy. A member of Bawaslu, Nelson Simanjuntak, admits that it is difficult to dealt with the SSM criteria.
â€œIt will be difficult to disqualify a violator because the violation shall fulfill the SSM criteria. That is a difficult criteria to fulfill and has the potentiality to be misused,â€ Nelson said (07/21).
Masykurudin argues, an electoral provisions should have made it easier for election officials to dealt with SSM violation. â€œStructuralâ€ should only be defined as mere involving one or more appartus. â€œSystemicâ€ should only be defined as the violation is conducted by the campaign team related to a candidate. While â€œmassiveâ€ should only be defined as the violation occur in one sub-district.
Such definitions should be included in the provisions for implementing the local election made by KPU and Bawaslu. These two EMBs have to have the same understanding and commitment.
Regarding the provision that states a candidate may only be disqualified if he/she directly involved in the violation, Perludem argues that this provision is very much reflecting the commitment of the EMBs towards the election law enforcement. Candidate disqualification should be able to applied to any candidate, whether he/she is involved directly or indirectly.
â€œIf a campaign team distribute money under the approval of a candidate, then it shall be considered that the candidate has conducted money politics indirectly. And the candidate shall be disqualified,â€ Titi Anggraini said.
A member of KPU, Ida Budhiati, admits that the provisions on money politics are still enforced selectively. As a matter of fact, it is important for KPU to also disqualify a candidate even if the money politics is committed by the campaign team of the candidate.
â€œCampaign team, volunteers, third-party, and political party will be punished according to the penal code. Meanwhile, a candidate can only be disqualified if he/she is directly involved in the violation,â€ said Ida.
There is still a few months left before KPU and Bawaslu has to produce a law that is strengthening the enforcement of the law instead of weakening it. It is important to conduct a public testing before implementing such law so that the strengthening effect can be guaranteed.
USEP HASAN SADIKIN