Incumbent Disqualification: An Effort to Equalize Rights in Regional Elections

By: Achmad Nur Divine. M, S.H.

(Legal Practitioner and Democracy Observer)

Incumbent candidates still have a strong chance of winning the contest in the 2024 Regional Head Election (Pilkada). At least, this is what is reflected in the results of the Kompas Research and Development poll which was conducted from 27 May to 2 June 2024, with 1,200 respondents chosen randomly in 38 provinces. As a result, 63.3 percent of respondents stated that they would consider electing a regional head who is currently in office. As many as 23.0 percent said they did not consider it and another 13.7 percent said they did not know.[1]

Public perception To elect an incumbent candidate does not arise from a vacuum, but is supported by various factors that can generally be seen; First, from visible forms of power (Visible Power), such as the opportunity to attract public sympathy through selling development programs that have been implemented as political investments. Second, hidden forms of power, namely the politicization of the bureaucracy through the mobilization of the State Civil Apparatus (ASN), monopoly of political support, and co-optation of election organizers. Third, an invisible form of power (Invisible Power), through the role of religious leaders and traditional leaders to instill values ​​and ideology, is the incumbent's political modality as a consequence of socio-societal stratification.[2] The essence of all these factors is the existence of social, cultural, economic and political capital from the incumbent.

The power that is a big asset for the incumbent not only wins the contest, sometimes it also makes him the sole candidate. The birth of the Single Candidate itself was caused by political parties not being optimal in carrying out political education and cadre formation. So there are political parties that do not have cadres who can nominate in the Pilkada, or there are cadres who are not yet confident enough to nominate in the Pilkada. Apart from that, the number of political parties that nominate single candidate pairs is thought to be conditioned by the candidate pairs themselves or vice versa. This means that parties as political vehicles, all of them, or at least the majority of them, are used by candidate pairs.[3] Therefore, the power in the hands of the incumbent gives him the "upper hand" in the next regional election process.

The amount of capital owned by incumbents, even though it seems to be something that is inevitable, will become a problem if there are no clear legal limits. This is because it will result in a lack of equal footing with other contestants, thus violating the sound of the constitution which should provide equal rights for everyone. For example, in Article 28 D Paragraph (1) of the 1945 Constitution which states that: "Everyone has the right to recognition, guarantees, protection and fair legal certainty as well as equal treatment before the law." It is stated more firmly in Article 28 D Paragraph (2) of the 1945 Constitution that every citizen has the right to equal opportunities in government. Without equal treatment and opportunities, it will be difficult for everyone to be on the same footing in the regional election contestation.

Theoretically, the absence of an equal footing for everyone in government also harms justice. According to John Rawls, one of the principles of justice that the state must have is The Greatest Equal Principle, or the principle of equal rights. This first principle applies broadly to all people in a democratic country without exception. The equality referred to here is equality in human rights, for example; the right to life, the right to freedom of opinion, association, security, education, and protection from all forms of human rights violations. Justice must ensure that equal rights are realized and maintained, while the second principle of social and economic inequality must be regulated so that it can provide benefits for everyone and positions are open to everyone.[4]

Furthermore, to realize justice, John Rawls stated that justice is fairness or the main policy in social institutions, a law must be reformed if it is unjust because every person has dignity based on justice where human freedom and rights must be guaranteed by justice. In a just society, the freedom of citizens is guaranteed, their rights are guaranteed, there is no bargaining in politics or matters of social interest.[5]

In the context of regional elections, justice can be obtained by placing restrictions on incumbents. One of them is so that Regional Heads do not use the authority of programs and activities that benefit Regional Head candidates either in their region or in other regions six months before the date of appointment of candidate pairs. If the regional head nominates again in the regional elections and is proven to have committed this violation, he will be subject to administrative sanctions in the form of cancellation as a candidate.[6] This arrangement will provide limits for incumbents in the hope that in the next regional elections, contestants will leave on a footing that is not too shaky.

The above arrangements are important to implement in the implementation of regional elections. This is to realize electoral justice, which according to the International Institute for Democracy and Electoral Assistance (IDEA), can be achieved by fulfilling three elements, namely Prevention of Electoral Disputes, Resolution of Electoral Disputes and Alternative Electoral Disputes. Dispute Resolution (Alternative Election Dispute Resolution). In the context of dispute resolution, there are two things that need to be considered, namely corrective, namely canceling, changing or admitting a violation and punitive, namely imposing sanctions on the perpetrator both administratively and criminally.[7] For this reason, enforcing election law, especially in disqualifying incumbents who commit violations, is part of election justice itself and provides hope for equal rights in regional elections for every contestant.

[1]Yohan Wahyu, Petahana Masih Jadi Perhatian Pemilih di Pilkada 2024, (Kompas.id), 03 Juli 2024, diakses pada 15 Juli 2024. https://www.kompas.id/baca/riset/2024/07/01/petahana-masih-jadi-perhatian-pemilih-di-pilkada-2024.

[2] Andi Muh. Dzul Fadli, Kemenangan Petahana dalam Kontestasi Pilkada Serentak 2018: Ditinjau dari Perspektif Powercube, Jurnal Teropong Aspirasi Politik Islam, Vol. 14, No. 2, 2018: 135. Doi: https://registration.ecc.gov.jm/

[3] Abhan, dkk, Pasangan Calon Melawan Kolom Kosong: Potret Pemilihan Bupati dan Wakil Bupati Pati Tahun 2017, (Semarang: CV. Rafi Sarana Perkasa, 2017), 102.

[4] John Rawls, Teori Keadilan, Terj. Uzair Fauzan dan Heru Prasetyo, (Yogyakarta: Pustaka Pelajar, 2006), 72.

[5] Ibid., 3-4.

[6] Pasal 71 Ayat (3) dan Ayat (5) UU No. 10 Tahun 2016.

[7] Ayman Ayoub dan Andrew ellis (Ed.), electoral Justice: The International IDEA Handbook, (Sweden: IDEA, 2010), 10.