Jakarta, IO – Article 22E (1) of the 1945 Constitution mandates the implementation of direct, public, free, secret, honest and fair elections once every five years. Constitutional Court (MK) Decision 48/PUU-XVI/2018 defines honest and fair elections as elections that are free from all forms of manipulation of regulations that benefit certain groups, manipulation of voters through campaigns, and vote rigging.
Sarah Birch (2011) states that the manipulation of rules can occur through the design of scheme that aim to weaken equal footing. Meanwhile, voter manipulation, for example, is done by manipulating voter’s choice or free will through money politics or the practice of clientelism.
MK emphasized that the principles of honesty and fairness must be reflected in every election regulation and process. People must make choices and vote according to their free will. This must be maintained to ensure that it is not undermined by various systemic efforts by any election participant, including through political campaigns.
Political image building
Article 1 (35) of Law 7/2017 on General Elections defines political campaign or rally as activities where election participants or other parties appointed by election participants try to convince voters by offering visions, missions, programs to build their image. The 2024 election saw a shorter campaign period (75 days). In the 2019 election, this was significantly extended to 6 months and 21 days. The campaign period for the 2024 election will start from November 28, 2023 to February 10, 2024. The participants were determined on December 14, 2022.
This means that there is a pause for almost a year before the start of campaign. Based on the implementation of the 2019 election, during the pre-campaign period participants are allowed to carry out activities called familiarization and political education within the party. This is stipulated in Article 25 (2), (3) and (4) of KPU Regulation 33/2018 on General Election Campaigns. Internally, this is carried out by installing party flags and their ballot numbers as well as limited meetings by notifying the General Elections Committee (KPU) and Elections Supervisory Agency (Bawaslu) in writing no later than one day before the activities are to be held.
In addition, it also regulates the prohibition to reveal or publish image, identity, special attributes which contain the political parties’ symbols by distributing campaign materials to the public, installation of props in public places or social media, as well as through advertisements in print, electronic and online media, outside the campaign period set by the KPU.
The provisions in KPU Regulation 33 remain in force and have not been changed. This creates a grey area and threatens democratic electoral competition. A case in point was the Bawaslu decision which stated that there were no allegations of election violations in the distribution of zakat (alms) money in envelopes bearing the party logo which took place in Sumenep, East Java, on March 24. Even though it considers that there is potential legal issue considering that the distribution was carried out in the middle of the 2024 Election implementation stages, Bawaslu could not handle the allegation.
Bawaslu’s argument is very legalistic. First, action cannot be taken against this act as an off-schedule campaign violation because Article 25 (3) of KPU Regulation 33 only prohibit the display of imagery, identity, special features or characteristics of political parties that contain pictures and symbols, ballot number all at once (cumulative). Meanwhile, the envelopes only had pictures on them.
Second, even though Article 280 (1h) and (1j) of Law 7 prohibits executors, participants and campaign teams from using places of worship and promising or giving money or other items to campaign attendants, the alleged money politics cannot be followed up due to this prohibition. Money politics only applies during the campaign period. The legal subject under Article 523 (1) of Law 7 is limited to executors, participants and/or election campaign teams. Meanwhile, the events that occurred in Sumenep were carried out outside the campaign period and the legal subjects who carried them out were not executors or part of campaign teams.
In light of this incident, the setting for campaign during the pre-campaign period must be changed because it is against a democratic election practice. The considerations being, first, the use of the cumulative criteria will always be circumvented by political actors by displaying only one of them, like picture or ballot number only.
Second, money politics is not prosecuted during this period even though vote buying practices have taken place. The reason being this is done outside the official campaign period and not by legal subjects defined by the law.
KPU progressiveness
Third, when the first and second are tolerated, a large amount of political funds will be distributed without transparency and accountability, exempted from the campaign finance report requirement on the part of the election participants. This is because the scope of campaign funds only includes receipts and expenditures during the campaign period. It is not entirely impossible that the illegal funds alleged by the Financial Transaction Reports and Analysis Center (PPATK) are also involved in the familiarization activities during the pre-campaign period.
There must be progressiveness on the part of KPU in responding to this grey area. KPU must immediately take steps to organize internal and external political outreach during this period considering that it is the most authoritative party, technically and legally, to regulate the election implementation stages. KPU should take responsibility for the consequence of KPU’s decision in setting a very short campaign period. There are a number of things that need to be regulated by KPU. First, changing the cumulative provision into an alternative provision in terms of campaign definition to include any of the identity, symbols and defining characteristics of political parties including image and number.
Second, confirming that the campaign prohibitions in Article 280 of Law 7 also applies to political outreach activities. This includes prohibitions on using places of worship and promising or giving money or other goods because they are against the practice of free and fair elections.
Third, regulate the procedure and mechanism for reporting of funds received by parties directly or indirectly. Thus, parties need to convey to the KPU the people appointed by the party to carry out political outreach during the pre-campaign period. Finally, if the KPU wishes to more easily and effectively prevent and enforce rules prohibiting unscheduled campaigning or money politics, then the election campaign period can be made longer by moving up the schedule for the determination of final candidate list (DCT).
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Thus, the pre-campaign period can be used to focus on consolidation and strengthening the parties’ internal structure. It is also the best time to absorb and listen to voters’ aspirations to refine their ideas and programs to be offered during the campaign period.
Allowing grey area for political familiarization will facilitate the circulation of illegal funds which can foster political corruption as well as transactional and unfair electoral practices. Of course, that is not what we expect to happen in the 2024 elections.