The election and sovereignity<\/p>\n
By Bambang Widjojanto<\/p>\n
JAKARTA (JP): Could someone be punished for sending a
\npolitical statement through greeting cards?<\/p>\n
That is the case for Sri Bintang Pamungkas, a staunch
\ngovernment critic who is now in detention awaiting trial for
\nurging people to reject the 1997 general election through Idul
\nFitri cards.<\/p>\n
The leader of the unrecognized Indonesian Democratic Union
\nParty (PUDI) sent the cards to government officials, legislators
\nand public figures in February.<\/p>\n
Some authorities and members in the House of Representatives
\nhad called the move "provocative," an attempt to "boycott" the
\nelection, a "curtailment" of people's rights and an attack
\nagainst the government.<\/p>\n
These raise several questions. First, is an Idul Fitri card an
\nacceptable means of stating one's political stance? Second, is
\nurging people to "reject the general election" equal to
\nencouraging people to boycott the general election? Third, can a
\nmove seen as obstructing somebody's right to vote in an election
\nbe categorized as provocative, and therefore as an attack on the
\ngovernment?.<\/p>\n
In a democratic system, the state's highest sovereignty,
\naccording to the constitution, is in the people's hands.
\nTherefore, because the people have sovereignty, they have the
\nright as power holders. It is the people who own the legitimate
\npower of a nation.<\/p>\n
Because the constitution states that people's sovereignty is
\nimplemented by the People's Consultative Assembly, a facility is
\nrequired to transfer people's sovereignty.<\/p>\n
The election is meant as a medium to transfer sovereignty
\nowned by people, but it does not mean that the ownership is
\ntransferred for good.<\/p>\n
After a certain period, people are entitled and needed to
\nrenew the mandate. The people who have the property right on
\nsovereignty lend it to the assembly based on user's rights. In a
\nday-to-day execution, sovereignty is implemented by those who
\nreceive substitution rights from the assembly.<\/p>\n
Thus, the election can be called an instrument for the
\nimplementation of people's sovereignty, where people have the
\nright to use or not to use their right. The people "give" or
\n"withdraw" support for the power in a regime, based on the
\nsovereignty right it owns.<\/p>\n
In practice, the election and its implementation become an
\ninstrument to reinforce the "legitimation" and "legality" of the
\npolitical format in accordance with the interest desired by the
\n"power." In this context, the right to participate in or to
\nreject the election is sublimated into an obligation.<\/p>\n
A basis for justification is sought by applying "sanctions".
\nStigmatization or, if necessary, punishment is imposed on those
\nwho refuse their right or those who appeal to other people to
\nreject their rights in the general election.<\/p>\n
This is clearly wrong, because the election is a facility for
\nimplementing the people's sovereignty, thus the people have
\nsovereignty themselves. People have the right to use or not to
\nuse their right in the election; to participate or not to
\nparticipate in the election; to use or not to use the right. It
\nis up to the people. To vote or not to vote in the election are
\ntwo expressions and arguments which are equally valid, so there
\nis no basis for someone to "sanction" somebody who chooses one of
\nthese expressions of sovereignty.<\/p>\n
Whatever is chosen by the people, or whatever is recommended
\nby others to participate in or not to participate in an election,
\nthe choice and the action of the people must be respected and
\ncannot be substantiated as an illegal action.<\/p>\n
The election, being a right, is based on legal principles.
\nThere is no stipulation whatsoever which regulates and imparts
\nsanctions on somebody who does not use his right to vote in the
\ngeneral election. In Law No.1 of 1985, as well as in the Penal
\nCode, there is no article that regulates and states that not
\nusing one's right in an election, or appealing to other people
\nnot to use their right, qualifies as a criminal act. This is in
\nline with Prof. Dr. Loebby Loqman's statement: "...not to use the
\nright to vote is not contravening the existing laws. Abstention
\nfrom voting is not an act that is juridically against the law."<\/p>\n
If somebody who does not use his right, or appeals to others
\nto use or not to use their right to vote, and cannot be qualified
\nas a criminal, is it possible that the person can be qualified as
\nhaving committed an act that leads to an aanslag?<\/p>\n
An Aanslag, in the Penal Code, means a crime committed against
\nthe state. In a limited way, the crime of aanslag is defined as:
\nfirst, focusing on the President or Vice President, with the
\nintention of killing, physically harming, robbing their freedom
\nor making them unable to govern; second, the intention of
\nconquering a territory of the state in whole or in part under a
\ndifferent government or separating a part of the territory;
\nthird, the intention of toppling the government by illegal means;
\nfourth, resisting by arms or opposing the authorities, and
\njoining rebels.<\/p>\n
Usually an aanslag is done through acts of violence in which
\nthe person has already committed the action. If he has only made
\npreparatory actions, it cannot be called an aanslag.<\/p>\n
With regards to the situation surrounding Sri Bintang's action
\nas a qualifying act of an aanslag, because he voiced his
\npolitical views and attitude through the cards, it is important
\nto clearly define "acts leading to an aanslag".<\/p>\n
If we use the limiting stipulations of the Penal Code as
\nabove, there is no element that can be a basis for qualifying Sri
\nBintang as having committed an act of aanslag or an act leading
\nto an aanslag.<\/p>\n
It is hard to explain by common sense, the connection between
\nIdul Fitri cards, a political attitude to reject the election and
\nthe qualifying act of aanslag. Thus, it needs to be questioned if
\na political attitude to reject the election can be qualified as a
\ncrime, in addition to the accusation that he has committed an act
\nof aanslag or an act leading to an aanslag.<\/p>\n
Indonesia has held six general elections, five of which were
\nin the New Order era. The number of participants averaged more
\nthan 90 percent of eligible voters. Before the term Golput
\n(nonparticipants) came to birth, the number of people using their
\nright to vote in 1955 was 87.5 percent. When Golput was
\nintroduced by vocal government critic Arief Budiman in May 1971,
\nthe number of people using their right to vote rose to 95
\npercent. On subsequent elections, there were occasions where
\nfluctuations in the participation of the general elections
\noccurred. It was estimated that the 1992 general election saw 91
\npercent of eligible voters going to the polls.<\/p>\n
Based on statistics, there is no reason for us to worry that
\nthe number of participants in the election in Indonesia will be
\nmuch less than 90 percent. If there is a shift of 10 to 20
\npercent, it is still better when compared to Pakistan and the
\nUnited States where only 50 percent of eligible voters went to
\nthe polls.<\/p>\n
In practice, the important thing is not how many votes are
\nobtained by the contestant from the total participants in the
\nelection. So is it really important how many people go to the
\npolls to cast their vote?<\/p>\n
If not, then what actually makes us so nervous and paranoid
\nabout the upcoming election? Probably not a political attitude to
\nreject the election, which was made a basis for detaining Sri
\nBintang. So, what is it?<\/p>\n
The writer is chairman of the board of the Indonesian Aid
\nInstitute Foundation in Jakarta<\/p>\n
Window A: In a democratic system, the state's highest sovereignty,
\naccording to the constitution, is in the people's hands.<\/p>\n
Window B: The election is meant as a medium to transfer
\nsovereignty owned by people, but it does not mean that the
\nownership is transferred for good.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/the-election-and-sovereignity-1447893297",
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