Corruption Hangs Over Regional Elections
Regional elections are always rife with tales of politicians playing with money. This includes the phenomenon of “buying ships” of political support for a candidacy and distributing money to buy voter support.
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Regional elections are always rife with tales of politicians playing with money. This includes the phenomenon of “buying ships” of political support for a candidacy, distributing money to buy voter support, distributing money in their campaigns, bribing voters immediately before voting (a practice called serangan fajar) and manipulating vote count, which are all commonly heard in every election.
The above list is not comprehensive. We can also include disputed votes at the Constitutional Court (MK), which once resulted in the arrest of an MK chief justice for corruption. Almost every stage of the election has a monetary value. The elections are costly – in both legal and illegal expenses.
We all understand that the general elections cost a lot of money, although this does not necessarily mean we agree with it. At this point in time, the Corruption Eradication Commission’s (KPK) action of targeting election candidates is interesting. This is far more interesting than the KPK’s “flirtatious” announcement that it planned to arrest many election candidates as suspects. It is true that the KPK was inappropriate in making the statement. However, it is also true that the KPK is essentially mandated to set its eyes on the regional elections – elections that we know to be a hotbed of corruption and money politics.
Old model
Essentially, there is nothing new about the practice of money politics in the regional elections. The huge amount of political funding needed to participate in the regional elections have led certain parties to make corrupt investments in order to derive personal benefits. “Investors” can look at candidates with the highest electability, put their money on them in exchange for something in return once the candidates are elected.
Often, these moneyed people do not put all their eggs in one basket. Those with additional financial capacity will spread their money among several candidates. The hope is that whoever wins, that individual will return the favor once they have power over the regional budget.
This relational pattern collides with the authority of a regional head in determining certain administrative matters, including the regional budget and natural resource management. Corruption in the regional budget and natural resource is where moneyed people and regional heads engage in a symbiotic relationship. This supply-and-demand rent-seeking blossoms in the marketplace of the regional elections.
Under the model of the simultaneous regional elections, the candidates are sometimes more bold. In the time between election day, the election results and inauguration day, the regional candidates who have won the election (either by quick-count surveys or actual count) will start asking for favors and offering allocations from the regional budget in return.
Even before they are inaugurated, election winners already have plans to steal the people’s money, as many of them believe that, just because they are not yet officially installed, they remain off the radar of anti-corruption agencies.
On the contrary, even though they have yet to be inaugurated, election winners can be held accountable for committing corruption. Quoting Eddy OS Hiariej (2018), who cited Hazewinkel Suringa and Jan Rammelink, the principle of dolus anteceden (antecedent fraud) exists in criminal law that refers to a deliberate intention before the fulfillment of an offense, but with certainty that the offense will be fulfilled.
This “unfulfilled offense that will be fulfilled” underlines that an individual cannot be punished for an offense that never takes place. In the case of an election candidate who is elected but not yet inaugurated either asks for or receives bribes, then the offense will be fulfilled once the person is inaugurated.
Boxed in by election law
Regarding the case of regional election candidates, the Coordinating Legal, Political and Security Affairs Minister’s request to the KPK to delay its law enforcement measures on election candidates was not without reason. By logic, the minister was afraid of a resulting political impasse from the KPK’s naming election candidates as suspects and subsequently arresting them. This is because the Regional Elections Law bans political parties from replacing candidates after the local election commission has issued its announcement of official candidates. The law only permits a replacement upon a candidate’s death. The candidate’s supporters can then propose a replacement within a predetermined timeframe.
General Elections Commission (KPU) Regulation No. 3/2017 does not regulate this restriction. Can you imagine if candidates were arrested and their supporters then ran amok on the streets? Never mind if candidates are arrested and the regional elections cannot be held.
Unfortunately, such reasoning is erroneous, as a state of law recognizes that the law must always be upheld. Fiat justicia ruat coelom: The law must be upheld even if the sky should fall. In this context, the government should have spoken in one voice, namely that law enforcement will always be prioritized. This is not only for the sake of law enforcement, but also for the future of our electoral democracy. Peace and security for the regional elections cannot be prioritized over candidates who are truly clean and qualified.
The integrity and competence of the candidates are of no less importance than security in the regional elections. We must also not forget that peace and security in the regional elections are established through a long process and does not come out of the blue. It must be fostered and maintained by state authorities who are hired to do just that.
Therefore, instead of delaying law enforcement measures against candidates connected to corruption, the government should have strived for something more dignified, that is, think of a way out of being boxed in by the election law. Surely, one of the solutions could be to introduce regulations, be they laws or government regulations in lieu of law, to provide an alternative to resolve the deadlock created by political candidates who are arrested.
The ‘perppu’ option
A government regulation in lieu of law (perppu) is the answer to any compelling emergency that may face our regional elections overshadowed by corrupt acts. Unfortunately, the government cannot easily issue a perppu, as any plan to issue a perppu must consider at least two matters.
First is the technical issue of timing. Many have used Article 22, Point 1 of the 1945 Constitution to argue that a perppu may be issued at any time the President deems to be a compelling emergency. This “compelling emergency” is subjective and is later made objective through the perppu’s approval by the House of Representatives. Point 2 of the same article says that a perppu must be approved by the House in its next legislative session.
However, through legal reasoning, there are reasons why Article 22, Point 2 contains the subordinate clause “in the next legislative session”. In actuality, a perppu cannot be issued any time the President wants. Ideally, a perppu is issued when the House is not in session or is in recess. This is the context to the clause “in the next legislative session”. This means that the moment the House is in session again, the perppu will be deliberated.
Just imagine if a perppu were issued in the middle of a House session. The law says that a perppu can only be deliberated in the next session, not the ongoing one. This will surely defeat the purpose of using the perppu immediately. The dangers of authoritarianism will loom large if the President was allowed to issue a regulation equivalent to a law that could be effective immediately and would not be approved by lawmakers until much later.
Put simply, if the House is in session, then what we surely need is a speedy deliberation of a bill. Is this doable? It is very much so, as long as the bill’s drafters, namely the President and House members, agree. Law No. 17/2014 on legislative institutions (the MD3 Law), for instance, has undergone speedy revisions several times, some in only a matter of days.
This is despite the interests being merely political, namely the addition of House seats to accommodate political parties. If the lawmakers’ mindset is still focused on public interests, surely they can deliberate bills quickly. One legislator could begin the process and the House can hold sessions to deliberate the bill.
This is why, other than a perppu, speedy revisions of prevailing laws are a very likely option for saving the regional elections. If the House is still in session, lawmakers can deliberate bills quickly. If they are not, then the President can issue a perppu.
The second point definitively concerns substance. If it is agreed that issuing a perppu is the way to go, then the next discussion will be on its substance. In actuality, despite the Regional Elections Law banning the replacement of candidates during the campaign stage, replacing a candidate is not entirely impossible. There is still Article 54, which allows a replacement upon the death of a candidate.
Therefore, the simple argument for using a perppu to save the regional elections from acts of corruption is that it is possible for a candidate’s supporters to replace their candidate using the mechanisms and clauses related to “candidate death”. Therefore, the revision a perppu must make is relatively simple, namely by adding a clause that Article 54 is also applicable in cases of candidates who are arrested in connection with special crimes, including corruption, drugs and terrorism; in such cases, the mechanism for replacing candidates will be the same as that applied upon a candidate’s death.
Despite the option to insert this regulation by revising KPU Regulation No. 3/2017 and not through a perppu, it is entirely possible that including such a stipulation in a regulation below the category of a law will not resolve the problem: It is still possible that the people will accuse the KPU of meddling in matters that are not regulated by law.
In the end, it is the country that must be saved from acts of corruption that continue to cast a shadow over the regional elections. Once again, compared to postponing legal measures against the bandits of democracy, it is better to find lawful ways of saving the elections from possible failure due to corruption. Surely, saving the regional elections alone will not be enough. We must also find a roadmap to prevent corruption from continuing to lurk amid the regional elections.
We understand that the games of corruption played in the regional elections have long been haunting us. As long as we remain silent and allow these things to happen, we will continue to stumble, much like a donkey that falls again and again into the same hole.
Zainal Arifin Mochtar, Lecturer at Gadjah Mada University (UGM) Law School, Yogyakarta; Chairman of the Corruption Eradication Commission of UGM Law School
