Adjusting and rearranging regional head elections

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Titi Anggraini
Titi Anggraini, Mentor at the Elections and Democracy Association (Perkumpulan untuk Pemilu dan Demokrasi – “Perludem”), Student in the University of Indonesia Faculty of Law Doctorate Program

Jakarta, IO – Article 18 Paragraph (4) of the RI Constitution of 1945 stipulates that the Governor, Regent, and Mayor, each being the regional head of the province, the regency, and the township, respectively, shall be elected democratically. The term “democratically” was then interpreted by Law No. 1 of 2015 concerning the Election of Governors, Regents, and Mayors to mean that “the selection of regional heads and deputy regional heads shall be performed by direct election by the people, or a Regional Election”. 

However, with the current Regional Election practice, the vacuum of definitive regional head positions will persist quite long – more than 2.5 years! This is the consequence of the provisions of Article 201 Paragraph (9) of Law No. 10 of 2016 concerning the Second Amendment to Law No. 1 of 2015 (the Regional Elections Law). According to this Article, the vacuum in the regional head and deputy regional head, with the end of the current incumbents’ tenures in 2022 and 2023, acting Governors, Regents, and Mayors shall be appointed to serve until new regional heads and deputy regional heads are formally elected through Simultaneous National Elections in 2024. 

Vacuums in gubernatorial position officials shall be filled by appointing an Acting Governor from the ranks of Medium Level Officials. Vacuums in regent and mayoral positions shall be filled by appointing Acting Regents and Mayors from the ranks of First Level Officials, according to the rule of applicable laws. The Explanation of Article 201 Paragraph (9) of the Regional Elections Law further stipulates that Acting Regional Heads shall serve for 1 (one) year, and the term of their service may be extended to the following year, with either the same official or a different one. 

This will cause the people to lose out, not being able to be led by definitive regional heads who are elected directly through Regional Elections, even though if they chose to, the Government and the House of Representatives could have held Simultaneous National/Regional Elections instead, which would avoid an overly-long leadership vacuum. In practice, lawmakers prefer to schedule Simultaneous National Regional Elections in November 2024, and eliminate Regional Elections in 271 regions, while the latter were originally scheduled for 2022 and 2023. 

A prolonged vacuum of definitive regional heads is anomalous in democratic practices. It is no surprise and extremely reasonable when people ask that the Constitution Court test these rules! Why, even in March 2022 alone, three persons submitted requests to get Article 201 of the Regional Elections Law tested! 

The Urgency of Having Technical Regulations 

So far, there are no technical regulations for filling a vacuum in regional head official positions that specifically follows up on the rules set up by Article 201 of Regional Elections Law. 

The appointment of officials is still “latched” to the regulations that cover a position vacuum due to a regional head official taking leave or having troubles, while these are two distinctly different issues. The appointment of officials as a consequence of the application Article 201 of Regional Elections Law is not something that is caused by (sudden) “special or extraordinary occurrences” such as taking leave for campaigning, or when the regional head gets involved in legal problems, becomes ill, dies, or is otherwise permanently incapacitated. It is an action taken deliberately, because of the failure to hold Regional Elections once every five years, as the law requires. 

This choice of procedures has caused us to suffer a prolonged vacuum in definitive regional head positions. We urgently need to regulate the mechanisms and procedures for appointing officials in a way that can still be described as “democratic” as spiritually intended by Article 18 Paragraph (4) of the Constitution. Therefore, as long as the Regional Elections Law has not been amended, or not yet revoked by a Judgement of the Constitution Court, the Government must quickly issue a technical derivative regulation that specifically regulates the mechanism for appointing acting officials, to follow up on Article 201 of this Law. 

We need them to issue a Government Regulation or Presidential Decree to ensure that this appointment remains democratic, contains no “supplemental” agendas replete with “pragmatic” interests or other “practical politics” – and that this expression of democracy is shown through a clear and measurable elections mechanism. This is even more urgent in view of the fact that we are soon facing a great political battle: the 2024 Simultaneous Elections. Even worse, by mid-May 2022 we have as many as 5 governors, 6 mayors, and 37 regents whose terms of service as ending. The provinces of Banten, West Papua, Bangka-Belitung, Gorontalo, and West Sulawesi will be ruled by Acting Governors until definitive regional heads are selected by the 2024 Regional Elections. It is the same with the 6 towns and 37 regencies mentioned above: all of these regions will be under the rule of Acting Officials for over three years. 

Imagine the chaos. Inevitably, this long duration of multiple regions being ruled by acting officials will raise concerns over legitimacy, as well as cause people to speculate whether the appointment of regional executives is a badly-hidden attempt at recentralizing power. Let’s not forget that according to the provisions of the Regional Government Laws, acting regional heads are restricted in making strategic decisions and policies in regional finance, institution, personnel, and permits. Will their brief tenure and restricted powers hinder these unfortunate acting officials from carrying out effective and democratic work, in line with the principles of good governance? 

We need to guarantee to the public that the appointment of acting officials is open, transparent, and accountable, and free from the forced insertion of problematic, incompetent, or suspicious persons whose actions run counter to regional aspirations. The Government must absolutely hear out the aspirations of local citizens and stakeholders to ensure that acting officials can work in a conducive environment and properly serve the public with as few obstacles as possible. The mechanism for finding out aspirations must be accountable, involving experts and practitioners who will provide optimal advice. For example, we might ask the relevant Regional House of Representatives to provide their input and opinion for the list of officials who should be included in the Government’s List of Appointment Nominees. 

Furthermore, we need to consider unique local context and wisdom. For example, we might appoint competent, experienced Papua natives as acting officials for the region. This is also in line with the provisions of the Papua Special Autonomy Law, which affirms that (competent and reliable) Papuan natives have reserved seats for political and public offices in the region. It is extremely important to ensure that acting officials are truly credible, competent, and accepted by the local people. This will ensure a smooth working flow during their tenure. 

The Military/Police Controversy 

The appointment of acting officials can actually be simplified. For example, if it is impossible to extend the tenure of definitive regional heads as suggested by Regional Government Affairs experts like Prof. Djohermansyah Djohan, it might be a good idea to appoint Regional Secretaries as acting regional heads for their region. Other than having satisfied the competence and administrative requirements for the position, they do not need to take a long time to adapt to the quirks of regional bureaucracy and current work programs. If there is a concern that the Regional Secretary may be vulnerable to local power games and political interests, the General Elections Supervisory Agency (Badan Pengawas Pemilihan Umum – “Bawaslu”), the National Civil Service Commission (Komisi Aparatur Sipil Negara – “KASN”), and the Ministry of Home Affairs can be involved for optimum monitoring. 

We further need to adjust and rearrange the appointment of acting officials to ensure that we evade commotion and controversy, especially since they will serve their tenure right amid the 2024 National and Regional Elections. Any prolonged commotion or controversy will not only interrupt the provision of public services, but will also hurt national stability and obstruct preparations for the National and Regional Elections. They will also be politicized and connected to the political interests and agendas of the competing elites. 

In order to avoid this condition, the Government must never appoint any active military/police personnel as acting regional heads. Let’s not give the people any ground to speculate whether the Government is thinking of reviving military/police bi-functionality or something. Let them concentrate on performing their duty of ensuring State safety and security during the crucial period of Simultaneous National and Regional Elections, in 2024. Their burdens are hard enough with our possibly holding Elections during an ongoing pandemic. We hope not; we hope that COVID-19 will be gone by the time of the next Elections, but we don’t know, right? 

The Government should focus on appointing acting officials whom the public can accept – officials who will ensure the continuation, effectiveness, and inclusiveness of regional development. To repeat: even now, as we are still enduring the pandemic, we do not know if we will still be facing it two years from now. Let’s simply avoid any speculative, controversial, and potentially disruptive actions.