Gubernatorial Elections by Local Parliaments: Demanding Government Consistency

The Local Elections Bill  is currently being discussed by the parliament and the government. Some crucial issues have arisen in the process of deliberation. One of them is about the elections of the governors. The Bill submitted by the Ministry of Home Affairs (MoHA) is proposing the elections of governors by local parliaments. This proposal is different from the provisions of Act No. 32 of 2004 that regulates direct elections of governorsdirectly by the people.

The Interpretation of Democracy

The proposal of the governor elections by the local parliamentsin the draft MoHA version is based on the interpretation of Article 18 Paragraph (4) and Article 22E of the 1945 Constitution. The formulation of Article 18 Paragraph (4) of the 1945 Constitution was made ​​in the second amendment, while the formulation of Article 22E of the 1945 Constitution was made ​​in the third amendment. Based on this interpretation the government (represented by MoHA) believes that the local elections are not part of the general elections.

Therefore, the the law makers havd granted the right to regulate it further. The situation is that the regents/mayors of districts should be elected democratically. In an academic paper and the Local ElectionsBill, the government (MoHA) interprets the meaning of democratic elections as the elections of the governors by the provincial parliaments (DPRD). Another argument is that the governors also serve as the central government representatives in the respective provinces, so it is not urgent to elect the governors directly by the people.

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The interpretation of the local elections not as part of the electoral regime, and the interpretation of the democratic elections of governors through provincialparliaments have several implications. First, dispute resolutions will be conducted by the Supreme Court (MA). MA is essentially a court of justice, while the Constitutional Court (MK) is a court of law. MA adjudicates individual cases, while MK adjudicates in the interest of the wider public.

Disputes in local elections actually involve  public interests, not just a personal matter of candidatesof chiefsof regions. They also involve other candidates, the elections commission, and the general public. Therefore, the court that should adjudicate election disputes is MK in order to achieve substantive justice for the public.

Since the authority to adjudicate disputed elections has been delegated to MK, many decisions and legal breakthroughs have beem produced by this guardian of the constitution. One of phenomenal jurisprudences is the massive, systematic, and structured violations in the decisions of local elections in East Java in 2008.

If the authority to adjudicate election disputes is diverted back to the Supreme Court (MA), it would undermine the democratic tradition that has been built by MK in relation to the election dispute resolutions. If the voice of the people is part of the prevailing constitution, then the dispute resolution should remain with MK.

Second, the legitimacy of governors  elected by provincialparliaments would be different from the presidents and regents/mayors that are elected directly by the people. Legitimacy will be very important because later on the governors will be dealing with the Regents/Mayors, of Districts/Cities directly elected by the people.

Demanding Consistency

One of the reasons why the central government is proposing governor elections by provincialparliaments is fund efficiency. During the elections, the governors' budgets aresignificantly consumed. For example, the East Java local budget allocates Rp 600 billion for the direct governor elections in 2013.

This efficiency of local budget argument believes that local budgets should not be used for the governor elections. Nevertheless, the government still proposes the elections of Regents/Mayorsare still elected directly by the people. The concept proposed by the government is inconsistent and tends to have a double standard for the interpretation of Article 18 paragraph (4) of the 1945 Constitution.

According to the Indonesian local government systems, the status of provinces and districts/citiesis different. Provinces, as the intermediary units have some coordination function, while the regencies/cities as base units that have direct service functionsfor the public. Based on it the government is proposingthe distinctions between the elections of the Governors and Regents/Mayors.

However, the government should be consistent with the interpretation of Article 18 paragraph (4) of the 1945 Constitution. If democracyis interpreted as direct elections, then it should also be no distinction between the Governor and Regent/Mayor. Likewise vice versa if democratcy is interpreted as elections by local parliaments.

The recommendations

1.The government should be consistent with the interpretation of the phrase "democratically elected". This is important because Article 18 paragraph (4) of the 1945 Constitution does not distinguish the elections of Governors and Regents / Mayors.

2. If the direct elections of the governors are considered inefficient and wasteful of Local budgets, there must be alternative waysto make direct elections efficient, not too much inthe use of the local budgets. For example, to change the requirements of winning percentage in the elections of governors and to delete the provision of two rounds.

Governor elections by parliaments would undermine the tradition of direct democracy that is being built and developed by this nation. Therefore, the government is proposing to have sociological and anthropological studies. In this case, an academic study will underpin the argument, not only giving the relevant normative and theoretical basis.