Protecting the Voice of the People
The popular Latin adage Vox Populi Vox Dei, meaning “the voice of the people is the voice of God”, shows the importance of people’s voices in a constitutional democracy.
The best time for people to make sure their voices are heard is in the voting booth during elections. If elections are the veins of a democracy, then the people’s votes are its heartbeats. Without protections for the voices of people in elections, democracy will die. On Tuesday (5/3/2019), the Indrayana Center for Government, Constitution and Society (Integrity) served as legal counselor in the judicial review of Law No. 7/2017 on elections. The judicial review was petitioned by the Association for Elections and Democracy (Perludem), Hadar Nafis Gumay, Feri Amsari, Muhamad Nurul Huda, Sutrisno, Augus Hendy and A Murogi bin Sabar. The last two petitioners are Tangerang Penitentiary inmates, whose lack of ownership of electronic identification cards (e-IDs) disqualify them from voting.
The judicial review request was filed 45 days ahead of voting day due to the possibility of the people losing their right to vote merely due to administrative issues. The General Elections Commission (KPU) and the Home Ministry have yet to resolve the issue of e-ID ownership as a voting requirement.
On March 11, Kompas published a news article titled “Voting Enthusiasm Growing Bigger”, which said 2.1 percent of voters, amounting to 5.38 millions of people, still did not have e-ID and might lose their right to vote. E-ID problems persist (despite the population and civil records directorate general’s continuous efforts of data-recording) not purely because the people are not proactively registering for it. All of us know there are corruptions in its procurement, which has affected the speed of its provision for all the people nationwide.
There are also voters who will only reach 17 years old on voting day and will not be able to obtain e-IDs beforehand. This is not because of their passiveness but, rather, because the Population Administration Law does not allow them to process e-ID ownership before they reach 17 years old. The KPU plans to provide statement letters for them, but this remains legally problematic as the Election Law stipulates e-ID for voting.
There are also problems with our brothers and sisters in remote regions, customary communities and urban slums, along with the disabled and other vulnerable groups, who lack e-KTP not because they do not want to have it but because various social and economic pressures have limited their access to it.
There are millions of Indonesians who are eligible to vote in 2019 but may not be able to do so due to technical problems related to e-ID ownership. This is despite, in the perspective of constitutional right protection, even the deliberate deprivation of one vote (let alone millions) is already a violation of our constitution.
In order to protect the people’s right to vote, a petition to review the Election Law has been filed to the MK. In its ruling No. 01-017/PUU-I/2003, the MK reaffirmed that people’s right to vote and be voted are “guaranteed by the constitution, laws and international conventions. Therefore, the distortion, deprivation or erasure of this right means a violation of citizens’ human rights”. Furthermore, in its ruling No. 102/PUU-VII/2009, the MK stipulates, “this constitutional right must not be hindered by any administrative procedure or regulation that obstructs the people from exercising their right to vote”.
Reviewed articles
The judicial review was filed against Article 348 Point (9), Article 348 Point (4), Article 210 Point (1), Article 350 Point (2) and Article (383) Point (2) of the Election Law. These articles are deemed to have obstructed, hindered or eliminate people’s right to vote, which should have been protected and facilitated.
Article 348 Point (9) requires voters unregistered in the final voters’ list (DPT) to show their e-ID in order to vote. This rule is included to anticipate problems in finalizing the DPT and in line with MK Ruling No. 102 issued ahead of the 2009 election. At the time, the MK also saved millions of votes that were potentially eliminated due to DPT issues. The problem is that millions of eligible voters still not have e-IDs, required as an administrative procedure in Article 348 Point (9). In the judicial review, petitioners request that voters can use regular IDs, statement letters, birth certificates, marriage books, family cards or voters’ cards.
Not many have realized that Article 348 Point (4) may lead to transferee voters losing their right to vote in the legislative election. For instance, voters voting in provinces other than their home province will only receive presidential election ballot and not the ballots for all levels of legislative elections. This did not occur in previous election and is simply unfair. Inmates in penitentiaries outside of their home provinces must still have their full voting right, except if such right has been revoked by a court ruling.
Article 210 Point (1) stipulates that registration to be included in the provisional voters’ list (DPTb) can only done at least 30 days before voting day. This is despite voters may need to register for the DPTb due to unexpected conditions outside of their control and not by choice. This includes falling sick, imprisonment or suffering from natural disasters. People in such unexpected conditions should be exempted from the 30-day rule in registering for the DPTb. They should still be able to register for the DPTb up to three days before the election, in order to give the KPU just enough time to prepare the logistics, as was done in previous elections.
A conditional judicial review was filed on Article 350 Point (2) to enable the establishment of special polling stations (TPS) based on DPTb, so that voters with special conditions and needs will not lose their right to vote. Voters with special needs include those receiving inpatient treatment at hospitals, residents of social or rehabilitation homes, inmates, students of boarding schools and natural disaster evacuees. Such voters may lose their right to vote in the legislative and other elections as polling stations are established based on DPT. In the judicial review, it is proposed that special TPS are established based on the DPTb for such voters.
Lastly, Article 383 Point (2) is filed for review to demand legal solutions if voting tabulation cannot be finished before midnight on election day. This is necessary to ensure the validity of votes in the 2019 election. In a heated contestation, solutions must be sought for potential problems on the election’s validity, in order to prevent conflicts. In the judicial review, it is proposed that voting tabulation can be continued after midnight, up to one day after election day.
MK ruling as a solution
In state governance, there are several solutions to fix an election law that may eliminate people’s right to vote. First is law amendment, which takes time. Second is with a government regulation in lieu of law (Perppu), but this can be problematic if the House of Representatives rejects it. Third, and most ideally, is filing for a judicial review at the MK to revise the law, which is then followed up by the KPU in creating technical regulations.
Time and again, the MK has shown its capacity in safeguarding the constitution, including through its Ruling No. 102 that prevents the unnecessary loss of votes in the 2009 Election just because of DPT registration problems. Ten years later, the MK must again show its constitutional support on resolving issues of voting rights. Legally and procedurally, it is possible for the MK to issue rulings quickly. Similar to Ruling No. 102, which was issued quickly by the MK due to its urgency, a ruling on the Election Law judicial review this time must also be issued quickly before April 17, 2019. In its considerations on Ruling No. 102, the MK used Article 54 of the MK Law to put forward the argument that it was not mandatory to hear statements from the government and the House of Representatives in judicial reviews of laws in order to speed up the ruling issuance process. Surely, we hope that the MK will once again prove its capability in safeguarding the constitution and salvage the voting rights of millions of people in the 2019 Election.
Denny Indrayana,
Senior Advocate, Integrity; Visiting Professor, Melbourne University Law School