Muninggar Sri Saraswati, Jakarta – The first hearing of a judicial review by the Constitutional Court last week of several contentious articles of Law No. 32/2004 concerning direct elections of regional leaders (provincial governors, mayors and regents) has revealed significant public concerns over weaknesses in the law.
A number of non-government organizations (NGOs) and provincial offices of the General Elections Commission (KPUD), which brought the case to the court, expressed their opposition to certain articles within the new law.
These articles, according to the plaintiffs, contravene the Constitution as they fail to ensure principles of fairness and impartiality during and after elections.
The plaintiffs also rejected as questionable sections of the law concerning the resolution of administrative and election disputes, and crimes arising from poll proceedings.
They demanded that a national system be applied for elections of regional leaders, rejecting Law No. 32/2004 that gives authority for conducting these elections to the provincial KPUD instead of the central government's General Elections Commission (KPU).
Firmansyah Arifin of the National Law Reform Consortium (KRHN), which is among the plaintiffs, said the problems stem from shortcomings in the Constitution that fails to guarantee a single election system in the country.
"The Constitution opens doors for various interpretations on the election system used at national and regional levels," he said.
The Constitution clearly stipulates that disputes over results of the general elections at the national level are settled by the Constitutional Court, but it says nothing about elections for regional leaders.
Firmansyah said Law No. 32/2004 authorizes the KPUD to conduct elections for regional leaders. But, the law also stipulates that KPUD, which is the regional arm of KPU, must be responsible for provincial legislative councils (DPRD).
Law No. 32/2004 ignores the existence of the KPU, which is authorized to conduct general elections, by excluding from any role in direct elections for provincial governors, mayors and regents.
Another problem, Firmansyah said, is the fact that the government and the House of Representatives, which enacted the law, appointed the Supreme Court to settle possible disputes related to the direct elections of local executive heads.
"The Supreme Court and lower courts still face a lot of problems. Our experience in the 1999 general elections showed that only four or five out of some 2000 election-related cases were settled by the courts," he said.
While the judicial review case is being heard by the Constitutional Court, Firmansyah urged the Supreme Court to appoint ad hoc judges to hear election-related cases in a bid to boost their independence.
Law No. 32/2004 came into force in October 2004. While the law was ostensibly enacted to nurture democracy in the country, many have warned of a possible backlash over its many confusing stipulations.