The election and sovereignity

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.