The recent verdict of the Lampung Province Bawaslu (pronounced on January 6, 2021) quite jolted the public. Of course, this Bawaslu verdict also gave KPU as the election organizer a headache. The Bawaslu verdict, registered with Number: 02 / Reg / L / TSM-PW / 08.00 / XII / 2020, stated that the report on violations committed by one of the candidate pairs participating in the election with Candidate Number 3 (Eva Dwiana – Deddy Amarullah) was legally and convincingly proven. The violation committed was in the form of promising and / or giving money or other materials to influence the organizers and/or voters.
In the regime of the Regional Head Election Law (Law Number 10 of 2016), such violation is categorized as election administration violation that occur in a structured, systematic and massive manner (see Article 135A paragraph (1) in conjunction with Article 73 paragraph (1) of Law Number 10 of 2016). As a result, pairs of candidates who are proven to have committed violation can be subject to sanctions in the form of cancellation as election participants (see Article 73 paragraph (1) of Law Number 10 of 2016). The KPU is not given a choice except for the obligation to follow up on the verdict (see Article 135A paragraph (4) and (5) of Law Number 10 of 2016).
For the KPU, the follow-up to the Bawaslu verdict has become a fruit of simalakama. The reason is, the KPU has determined the recapitulation of votes for the Bandar Lampung mayoral election long before the Bawaslu verdict was issued on December 15, 2020. Candidate pair number 3 has been determined as the participant with the most votes. Even so, this determination is not yet final. There is still an election dispute settlement lawsuit process for Bandar Lampung which has been submitted to the Constitutional Court (MK). On the other hand, the concentration of the organizers was also divided to follow up on the Bawaslu verdict canceling the participation of one of the candidate pair. Parties whose membership has been canceled are given the opportunity to challenge the organizers’ decision to the Supreme Court (MA) (see Article 135A paragraph (6) to (9) of Law Number 10 of 2016). If later the pair of candidates whose participation is canceled sues the KPU’s decision letter to the MA, the process of organizing the election, especially for the election of Bandar Lampung City, will undergo an overlapping adjudication process, both in MA and MK.
Election violation in the form of material lure to influence voters and organizers is a criminal act that needs to be given harsh sanctions. Any form of fraud means negating the principle of an election which is held based on fair competition. However, in order to impose penalties for violations committed by election participants, it must be arranged according to clear procedures and not cause confusion. The overlapping follow-up process for election violations must also heed other election principles, namely fairness, which is reflected in the due process in handling all election violations.
The phenomenon that occurred in the election of Bandar Lampung City made the parties involved in the preparation of election procedures and stages need to rethink to reconstruct their policies. Among the most basic issues are the character of the money politics violation and the scope of authority of Bawaslu in making verdicts. This short article will focus on these two issues.
Money Politics: Administrative Violation or Election Crime?
Attention to regulating violations in the form of giving money or other materials to influence voter choices has existed since the issuance of Law Number 1 of 2015, particularly in Article 73. However, a more extensive arrangement is regulated in Law Number 10 of 2016 which is the second amendment of Law Number 1 of 2015. The problem is, the change in regulations regarding these violations has messed up the categorization of violations stipulated in Article 73.
Law Number 10 of 2016 classifies violations in Article 73 as (i) administrative violations (see Article 135 paragraph (1) Law Number 10 of 2016) as well as (ii) criminal acts (see Article 187A paragraph (1) of Law Number 10 Year 2016). The grouping of money politics violations into these two categories creates an intertwined process for handling them.
Administrative sanction in the form of cancellation of participation in election is a natural consequence if an act is considered an administrative violation. However, money politics has the characteristics of a criminal act so that the examination process must comply with the aspects of criminal procedural law. Law Number 10 of 2016 focuses on the process of resolving money politics violations in terms of administrative violations and does not directly regulate the settlement in criminal offenses. Article 135A of Law Number 10 of 2016 regulates in detail the stages of prosecution on money politics as administrative violations. Meanwhile, in relation to criminal acts, the Law only states that administrative sanctions do not invalidate criminal sanctions (see Article 73 paragraph (5) of Law 10 of 2016).
In contrast, the construction built in the previous Law (Law Number 1 of 2015) was to prioritize the court examination process and then impose administrative sanctions. It is stated that “… Candidates who are proven to have committed violations as referred to in paragraph (1) based on a court decision that has legal force will still be subject to cancellation sanction as a candidate…” (see Article 73 paragraph (2) of Law Number 1 of 2015).
Administrative issues have a different perspective from criminal matters, one of which, for example, is in determining the perpetrator. The case that occurred in the election for the Mayor of Bandar Lampung is an interesting topic for discussion. The violation report submitted to Bawaslu accused the pair of candidates using the APBD to be used as campaign capital. The Mayor of Bandar Lampung is currently the husband of Eva Dwiana (one of the candidate pair number 3). Then, from the perspective of criminal law, can Eva Dwiana be called a perpetrator of money politics violation or should the criminal sanction be imposed on the mayor who is currently in office for abusing his power. Apart from that, the Law also mentions various actors, namely pairs of candidates, campaign teams or volunteers. When looking at the Bawaslu verdict, it is not stated in detail in its consideration whether the alleged violations were committed by candidate pairs, campaign teams or volunteers. If then the violation is committed by the candidate pair, the cancellation sanction can be imposed. However, if the violation is committed by the campaign team or volunteers, will the sanctions be canceled?
The Bawaslu verdict states that in several instances it has been proven, according to the Examining Panel, that the Mayor is actively providing assistance in the framework of winning the candidate pair number 3, one of which is his wife. In a criminal perspective, an active Mayor can be classified as a “campaign team” but cannot be called a pair of candidates. Then can the cancellation sanction still be imposed, even though the perpetrator is not a direct pair of candidates?
The problem that needs to be resolved by policy makers in the future is to firmly determine the characteristics of money politics violations and the resolution mechanism so as not to cause confusion.
Bawaslu’s decision
The different thing that is introduced by Law Number 10 of 2016 is that Bawaslu as an election dispute resolution institution does not only issue recommendation but also “verdict”. The term used in the previous law was “decision”. The use of the term “decision” as a product nomenclature produced by an institution that is part of the election management confirms Bawaslu’s position as the one that ends a dispute. Verdict (vonnis) is product of adjudication institutions while decision (beschikking) is product of government agencies.
Even though it is referred to as an adjudication institution, Bawaslu is not part of the judicial authority. Dispute resolution (adjudication) can be through court or outside the court. Arbitration and mediation are types of adjudication outside the court. What Bawaslu is doing is efforts to resolve election disputes outside the court. This is also the case with Komnas HAM in resolving disputes related to human rights violations through mediation. Unfortunately, in the Indonesian vocabulary, the term verdict issued by a court is not differentiated from an out-of-court dispute settlement institution. In English, a court decision can be called a decision, ruling or judgment. Meanwhile, the decision of the arbitration or mediation institution is called an award.
The Bawaslu decision is characterized as an out-of-court dispute resolution institution. In other words, despite issuing a verdict, Bawaslu is not a judicial authority subjected to court procedural law. This is important to emphasize because the inability to draw boundaries often causes misunderstandings which one of them is in dealing with money politics violations. If we read the procedures for handling money politics violations as outlined in Bawaslu Regulation Number 9 of 2020, the nuance of the judiciary is thicker than dispute resolution with the characteristic of arbitration.
This work becomes the authority of Bawaslu as a follow-up when policy makers have determined the character of electoral dispute resolution in structured, systematic and massive violations.
However, before considering changing the policy regarding the handling of these violations, there is a problem in sight that needs to be resolved immediately, namely unraveling the tangled threads of election violation that occurred in the election for the Mayor of Bandar Lampung.
Student of the Postgraduate Program, Faculty of Law, Andalas University
