It is provocative to read the legal point of view written by some Indonesian scholars to create a legal basis for the postponement of concurrent elections in Indonesia. several scholars attempt to shift the flashpoint from the chaotic idea of postponing elections from the narrative of postponing elections in the name of economic stability and the issue of high levels of satisfaction with the current president to the pendulum of constitutional issues. Some constitutional scholars have given advice from the perspective of constitutional law to end this controversy by presenting an alternative exit law in the form of constitutional amendments, both formal amendments provided for in Article 37 of the 1945 Constitution of the Republic of Indonesia and through informal mechanisms, namely seeking the interpretation of the Constitutional Court. in judicial review of Section 167(1) of the Elections Act Number 7 of 2017 against Section 22 E(1) in conjunction with Section 22(1) of the 1945 Constitution of the Republic of Indonesia. where the article a quo confirms that elections are held every five years in contradiction to the provisions relating to the compelling circumstances they currently face, namely the health emergency due to COVID-19.
The alternative given seems to be able to untangle the tangled threads of the constitutional postponement of the election controversy, but when considered, the ideas offered may clash with the value of constitutionalism in the 1945 Constitution. Therefore, this opinion examines this from the text of the formation and amendment of the 1945 Constitution.
A Republic looks like a Monarchy
The 1945 Constitution does not explicitly regulate the mechanism for postponing elections. However, this does not mean that it can be interpreted that the delay is authorized or prohibited. Both options have a chance of being considered constitutional. This is why it is essential to understand and explore the original intent of why the postponement of the election is prohibited or permitted.
One of the reasons why the postponement of the election is seen as inappropriate is because the idea ofthe status quo today contradicts the form of the Unitary State of the Republic of Indonesia (NKRI). The spirit of the form of a unitary state and a republican form of government must be interpreted in one breath. It is the choice of the founding fathers and mothers to choose the form of a unitary state and a republican form of government.
In the form of a republican government, the process of changing heads of state takes place openly through an electoral process and has a fixed term of office, not in a closed manner like descent-based elections under the form of a monarchical government. The consequence of having an open transfer of power process resulted in an electoral system that proceeded smoothly. Whereas, Elections are the only legal mechanism and the constitutional way in succession to the leadership of a country in the form of a republic especially Indonesia. While elections must be held to ensure that the spirit of constitutionalism in the form of a republican government is maintained.
In addition, Article 37, paragraph (5) of the 1945 Constitution of the Republic of Indonesia states that in the mechanism of formal constitutional changes, in particular, the form of the unitary state of the Republic of Indonesia shall not cannot be modified. In other words, pushing the postponement of elections actually leads to constitutional disobedience to the provisions contained in the constitution itself and leads to changing the form of a monarchy where the head of state in power does not have specific time limit.
Betraying the fundamental agreement on the amendment of the Constitution of 1945.
The history of the constitutional changes of the period 1999-2002 established five basic agreements in the program of change. The Five Accords served as guidelines (agenda setting) when the author’s constitution changed. The basic agreements worked out by the ad hoc Committee are: 1) not to modify the preamble of the 1945 Constitution, 2) relating to the unitary state of the Republic of Indonesia, 3) strengthening the presidential system of government, 4) explain the 1945 Constitution The Constitution containing normative questions will be included. To articles 5) make changes by adding an addendum.
According to Cheryl Saunders, Professor of Constitutional Law at the University of Melbourne, these five points constitute the Constitutional Amendment (Agenda Setting) Agenda, which is embodied in Constitutional Amendments. Changes to the constitution always have a context, a history and a purpose. The changes to the Indonesian constitution deviate from historical aspects that have occurred and been experienced in the past and reaction to past practices of state administration. The Constitution Amendment Agreement of 1945 became the starting point for correcting the weaknesses of past state practice.
One of the weaknesses of past practices of state administration is the flexibility of interpretation during the presidential term. The old Constitution of 1945, the change of mandate, was multi-interpretative. This situation then opened the opportunity for the MPRS decree number IX/MPRS/1966 regarding the appointment of President Soekarno as the great leader of the revolution and president for life, and this was repeated when President Suharto sanctified the interpretation of the absence of firm limitations in the presidential term so that he ruled for about 32 years.
The message can explain why the presidential term is limited to 5 years and can only be re-elected for one term. This provision is included in the basic agreement to amend the 1945 Constitution, emphasizing the presidential system of government. In a country that adheres to a presidential system of government, the president serves a fixed term. A democratic presidential election process takes place through elections, thus transforming the indirect presidential election system (through the MPR) into direct elections. With this in mind, Chapter VIIB was created, which contains Article 22 E paragraph (1) of the 1945 Constitution to guarantee a 5-year cycle in the exercise of the presidential office. Therefore, the postponement of the election betrays the basic agreement in the 1945 Constitution Amendment and the values of constitutionalism contained therein.
So the idea of asking for the interpretation of the Constitutional Court regarding the constitutionality of the postponement of the election is irrational, especially if the judge of the Constitutional Court considers the legal context of the provisions on the limitation of presidential positions and the basic agreement on amendments to the existing Constitution of 1945. Including when the delay is met with forcing reasons of urgency. This must therefore refer to the MP’s interpretation of the emergency situation, and it is necessary to examine by proportionality test whether the postponement of the election has legitimate reasons (legitimate purposes) and whether the postponement will have a greater positive impact or even harm (maximum minimum).
Neglecting the sovereignty of the people over the right to be elected.
Indonesia’s assertion as a constitutional democracy is firmly anchored in the provisions of Article 1, paragraph (2) juncto subsection (3) of the 1945 Constitution. One of the manifestations of democracy is the distribution of the right to vote. The current idea of postponement reduces the right to be elected. In addition, the election organizers have been chosen and set the time for the simultaneous elections to be held on February 14, 2024.
The government and the political elite should support the work of election organizers so that they can in future carry out national and local electoral processes simultaneously, instead of presenting new controversies. That’s like saying that once the sails are unfurled, the edge never recedes. If this nation is committed to the importance of term limits for the incumbent president and has set an election day, then all obstacles and challenges must be met, not postponed, especially if they are delaying for reasons that do not are not really essential.