Elections law has no basis to end status quo

Satya Arinanto, Lecturer, Faculty of Law University of Indonesia, Jakarta, arinanto@cbn.net.id

After a long debate, the House of Representatives and the government finally passed the elections law into effect on Feb. 18. Previously, at the end of 2002, the House and the government had passed Law No. 31/2002 on political parties.

However, we still have to wait for at least three other bills -- those on the election of the president and vice president, on the structure and the status of the People's Consultative Assembly and the national and local legislative bodies, and the bill of the constitutional court.

And we also still have to wait for around more than 100 regulations which need to be issued by the General Elections Commission.

Since the New Order era, the pro-democracy movement has been increasingly calling for genuinely free and fair elections. As observed by Anders Uhlin in his book Indonesia and the 'third wave of democratization': The Indonesian pro-democracy movement in a changing world (1997), there may be disagreement on the advantages and disadvantages of the various forms of electoral system and the ideal number of political parties, but there is general agreement that Golkar's dominant position, and state and military intervention in elections must come to an end.

The New Order elections are now seen as meaningless events which only served to provide some legitimacy for the authoritarian regime. According to Uhlin, as long as independent opposition parties and candidates cannot compete on equal terms, election fraud continues to be widespread and the legislature powerless, most pro-democracy actors would support an election boycott.

One of the most crucial issues in the drafting of the elections law is which electoral system will be used in the 2004 general election?

According to Gary W. Cox in his book Making Votes Count: Strategic coordination in the world's electoral systems (1997), several general features of electoral coordination illustrate, among other things, the mixture of common and opposed interests; the possibility of success or failure: and the rapidity with which vote intentions change when coordination takes off. The examples' focus on strategic voting in presidential elections is too limited, however.

Moreover, Cox stated that modern representative democracy presents at its core a series of coordination problems that arise as natural consequences of electoral competition for governmental offices. A group with enough votes to elect a particular number of candidates in a given (legislative or executive) race will elect those candidates only if it can make its votes count by concentrating them appropriately.

One way to avoid spreading votes too thinly is to limit the number of candidates. But which potential candidates, representing what shades of opinion will withdraw in favor of which others? Which candidates will bear the brunt of strategic voting and which will be its beneficiaries?

The new elections law governs such matters as general provisions; participants; the right to vote; the organizing committee; the district and the number of representatives; the nomination process; the campaign procedures; the voting and counting; and the determination of the election result.

Also provide for is the recall of elected candidates; supervision, law enforcement, and monitoring; criminal sanctions; transitory provisions; and concluding provisions.

The lawmakers agreed to choose the "limited" open proportional system, a system supported primarily by the two major political parties, the Indonesian Democratic Party of Struggle (PDI Perjuangan) and Golkar.

Problems after the passing of the law are expected. One is the plan by some political parties to seek a judicial review from the Supreme Court. Based on the Fourth Amendment to the 1945 Constitution and Supreme Court Practice Direction No. 2/2002, the Supreme Court is to function temporarily as a constitutional court until Aug. 17, 2003. One of the constitutional court's functions is to undertake judicial reviews.

The political parties that are unhappy with the new elections law also think that it will only benefit the big political parties, especially the PDI Perjuangan and Golkar. But in all events, Golkar will benefit more than the PDI Perjuangan.

For example, the law does not forbid a defendant in court proceedings from being nominated as a legislator. It also enables public officials to actively participate in election campaigns. Many observers believe that these two articles are the result of horse trading between the two major political parties.

So despite the hopes raised by the recognition of the open list system, at least in the near future we are not likely to see high quality democracy, especially during the 2004 general elections. And the election outcome will probably continue to maintain the status quo in Indonesian politics.