It is provocating to read the legal point of view written by some Indonesian scholars to create legal basis of the delaying of concurrent election in Indonesia . several scholars try to move the flashpoint of the chaotic idea of postponing elections from the narrative of postponing elections for the sake of economic stability and the issue of high levels of satisfaction with the current President to the pendulum of constitutional issues. Some constitutionalist gave advise from the constitutional law lens to stop this polemic by presenting an alternative exit law in the form of constitutional changes, both formal changes as provided in Article 37 of the 1945 Constitution of the Republic of Indonesia and through non-formal mechanisms, namely asking the interpretation of the Constitutional Court. in the judicial review of Article 167 paragraph (1) of Law Number 7 of 2017 concerning to Elections against Article 22 E paragraph (1) in conjunction with Article 22 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. Where Article a quo confirms that elections are held every five years in conflict with provisions regarding to compelling circumstances as they are currently being faced, namely the Health emergency due to COVID-19.
The alternative given seems to be able to unravel the tangled threads of the polemic of postponing the election constitutionally, but when examined, the ideas offered can collide 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. Nevertheless, that does not mean that it can be interpreted that the delay is allowed or prohibited. Both options have a chance of being considered constitutional. That is why it is pivotal to understand and explore the original intent of why postponing the election is prohibited or allowed.
One of the reasons why postponing the election is seen as inappropriate because the idea of the 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. That 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 state leaders is carried out openly through an election process and has a fixed term in office limit, not in a closed manner like elections based on descent in the form of a monarchy government. The consequence of the existence of an open power transfer process gave birth to an electoral system that was carried out regularly. So that, The elections are the only legal mechanism and the constitutional way in succession the leadership of a country in the form of a republic particularly Indonesia. So that elections must be held to ensure that the spirit of constitutionalism in the form of republican government is maintained.
Furthermore, Article 37 paragraph (5) of the 1945 Constitution of the Republic of Indonesia mandates that in the mechanism of formal constitutional changes, specifically, the form of the unitary state of the Republic of Indonesia cannot be changed. In other words, pushing the postponement of elections actually leads to the constitutional disobedience to the provisions contained in the constitution itself and leads to changing the form of a monarchy where the ruling state leader does not have a specific time limit.
Betraying the fundamental Agreement on Amendment to the 1945 Constitution.
The history of constitutional changes in the 1999-2002 period has established five basic agreements in the change agenda. The five agreements served as guidelines (agenda setting) when the framer’s constitution changed. The basic agreements drawn up by the Ad Hoc Committee are: 1) not changing the preamble to the 1945 Constitution, 2) pertaining to the Unitary State of the Republic of Indonesia, 3) Reinforcing the presidential government system, 4) explanations for the 1945 Constitution containing normative matters will be included. Into articles 5) make changes by adding an addendum.
According to Cheryl Saunders, a constitutional law professor at Melbourne University, these five points are the agenda for changing the constitution (agenda setting), which is accommodated in the amendments to the constitution. Changes to the constitution always have a background, history and purpose. Changes to the Indonesian constitution depart from the historical aspects that occurred and were experienced in the past and the reaction to previous state administration practices. The agreement to amend the 1945 Constitution became the starting point for correcting weaknesses in past state practices.
One of the weak points of past state administration practices is the flexibility of interpretation during the presidential term of office. The former 1945 Constitution, the change in term of office, was multi-interpretative. This situation then opened the opportunity to 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 of office so that he reigned for approximately 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 intended in the basic agreement to amend the 1945 Constitution, emphasizing the presidential government system. In a country that adheres to a presidential government system, the president has a fixed term in office. A democratic presidential election process is carried out through elections, thus changing the indirect presidential election system (through the MPR) into direct elections. In line with that, Chapter VIIB was created, which contains Article 22 E paragraph (1) of the 1945 Constitution to guarantee a 5-year cycle in filling the presidential office. Therefore, the postponement of the election betrays the basic agreement in the amendment of the 1945 Constitution and the values of constitutionalism contained therein.
So that the idea of asking the Constitutional Court’s interpretation regarding the constitutionality of postponing the election is irrational, especially if the Constitutional Court Judge considers legal background from the provisions on the limitation of presidential positions and the basic agreement on amendments to the existing 1945 Constitution. Including when the delay is collided with reasons of urgency forcing. So this must refer to the MK’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 aims) and whether the postponement will have a greater positive impact or even harm (maximum minimorum).
Neglecting the people’s sovereignty over the right to be elected .
The affirmation of Indonesia as a constitutional democracy is firmly enshrined in the provisions of Article 1 paragraph (2) juncto paragraph (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. Moreover, the election organizers have been chosen and set the time for the concurrent elections to be held on February 14, 2024.
The government and the political elite should support the work of the election organizers so that they can carry out the simultaneously national and local election processes in the future, instead of presenting new polemics. It is like saying that once the sails expand, the edge never recedes. If this nation is committed to the importance of limiting the term president in office t and has set an election day, then all obstacles and challenges must be faced, not postponing, especially if it delays for reasons that are not significantly essential.