The election and sovereignity

By Bambang Widjojanto

JAKARTA (JP): Could someone be punished for sending a political statement through greeting cards?

That is the case for Sri Bintang Pamungkas, a staunch government critic who is now in detention awaiting trial for urging people to reject the 1997 general election through Idul Fitri cards.

The leader of the unrecognized Indonesian Democratic Union Party (PUDI) sent the cards to government officials, legislators and public figures in February.

Some authorities and members in the House of Representatives had called the move "provocative," an attempt to "boycott" the election, a "curtailment" of people's rights and an attack against the government.

These raise several questions. First, is an Idul Fitri card an acceptable means of stating one's political stance? Second, is urging people to "reject the general election" equal to encouraging people to boycott the general election? Third, can a move seen as obstructing somebody's right to vote in an election be categorized as provocative, and therefore as an attack on the government?.

In a democratic system, the state's highest sovereignty, according to the constitution, is in the people's hands. Therefore, because the people have sovereignty, they have the right as power holders. It is the people who own the legitimate power of a nation.

Because the constitution states that people's sovereignty is implemented by the People's Consultative Assembly, a facility is required to transfer people's sovereignty.

The election is meant as a medium to transfer sovereignty owned by people, but it does not mean that the ownership is transferred for good.

After a certain period, people are entitled and needed to renew the mandate. The people who have the property right on sovereignty lend it to the assembly based on user's rights. In a day-to-day execution, sovereignty is implemented by those who receive substitution rights from the assembly.

Thus, the election can be called an instrument for the implementation of people's sovereignty, where people have the right to use or not to use their right. The people "give" or "withdraw" support for the power in a regime, based on the sovereignty right it owns.

In practice, the election and its implementation become an instrument to reinforce the "legitimation" and "legality" of the political format in accordance with the interest desired by the "power." In this context, the right to participate in or to reject the election is sublimated into an obligation.

A basis for justification is sought by applying "sanctions". Stigmatization or, if necessary, punishment is imposed on those who refuse their right or those who appeal to other people to reject their rights in the general election.

This is clearly wrong, because the election is a facility for implementing the people's sovereignty, thus the people have sovereignty themselves. People have the right to use or not to use their right in the election; to participate or not to participate in the election; to use or not to use the right. It is up to the people. To vote or not to vote in the election are two expressions and arguments which are equally valid, so there is no basis for someone to "sanction" somebody who chooses one of these expressions of sovereignty.

Whatever is chosen by the people, or whatever is recommended by others to participate in or not to participate in an election, the choice and the action of the people must be respected and cannot be substantiated as an illegal action.

The election, being a right, is based on legal principles. There is no stipulation whatsoever which regulates and imparts sanctions on somebody who does not use his right to vote in the general election. In Law No.1 of 1985, as well as in the Penal Code, there is no article that regulates and states that not using one's right in an election, or appealing to other people not to use their right, qualifies as a criminal act. This is in line with Prof. Dr. Loebby Loqman's statement: "...not to use the right to vote is not contravening the existing laws. Abstention from voting is not an act that is juridically against the law."

If somebody who does not use his right, or appeals to others to use or not to use their right to vote, and cannot be qualified as a criminal, is it possible that the person can be qualified as having committed an act that leads to an aanslag?

An Aanslag, in the Penal Code, means a crime committed against the state. In a limited way, the crime of aanslag is defined as: first, focusing on the President or Vice President, with the intention of killing, physically harming, robbing their freedom or making them unable to govern; second, the intention of conquering a territory of the state in whole or in part under a different government or separating a part of the territory; third, the intention of toppling the government by illegal means; fourth, resisting by arms or opposing the authorities, and joining rebels.

Usually an aanslag is done through acts of violence in which the person has already committed the action. If he has only made preparatory actions, it cannot be called an aanslag.

With regards to the situation surrounding Sri Bintang's action as a qualifying act of an aanslag, because he voiced his political views and attitude through the cards, it is important to clearly define "acts leading to an aanslag".

If we use the limiting stipulations of the Penal Code as above, there is no element that can be a basis for qualifying Sri Bintang as having committed an act of aanslag or an act leading to an aanslag.

It is hard to explain by common sense, the connection between Idul Fitri cards, a political attitude to reject the election and the qualifying act of aanslag. Thus, it needs to be questioned if a political attitude to reject the election can be qualified as a crime, in addition to the accusation that he has committed an act of aanslag or an act leading to an aanslag.

Indonesia has held six general elections, five of which were in the New Order era. The number of participants averaged more than 90 percent of eligible voters. Before the term Golput (nonparticipants) came to birth, the number of people using their right to vote in 1955 was 87.5 percent. When Golput was introduced by vocal government critic Arief Budiman in May 1971, the number of people using their right to vote rose to 95 percent. On subsequent elections, there were occasions where fluctuations in the participation of the general elections occurred. It was estimated that the 1992 general election saw 91 percent of eligible voters going to the polls.

Based on statistics, there is no reason for us to worry that the number of participants in the election in Indonesia will be much less than 90 percent. If there is a shift of 10 to 20 percent, it is still better when compared to Pakistan and the United States where only 50 percent of eligible voters went to the polls.

In practice, the important thing is not how many votes are obtained by the contestant from the total participants in the election. So is it really important how many people go to the polls to cast their vote?

If not, then what actually makes us so nervous and paranoid about the upcoming election? Probably not a political attitude to reject the election, which was made a basis for detaining Sri Bintang. So, what is it?

The writer is chairman of the board of the Indonesian Aid Institute Foundation in Jakarta

Window A: In a democratic system, the state's highest sovereignty, according to the constitution, is in the people's hands.

Window B: The election is meant as a medium to transfer sovereignty owned by people, but it does not mean that the ownership is transferred for good.