The Supreme Court's Decision Cannot Be Challenged by the KPU's Fatwa (Appeal)

Vonis MA Tidak Bisa Dilawan Fatwa KPU
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The General Election Commission (KPU) is merely following the Supreme Court's decision by issuing a circular containing an appeal to political parties to comply with the Supreme Court's decision. This stance of the KPU further strengthens the alleged violations of the code of ethic by election organizers who disregard the legal regulations regarding the 30% women candidacy requirement in each electoral district for the DPR/DPRD. The Election Organizer Honorary Council (DKPP), as an ethical judicial institution for elections, should rectify this situation by issuing an ethical decision that aligns with the Supreme Court's judicial decision.

"It should be a decision challenged with a decision. Meanwhile, a fatwa (appeal) is not binding, so a decision cannot be challenged with a fatwa," said Zainal Arifin Mochtar, a Constitutional Law expert from Gadjah Mada University (UGM), in an online discussion titled "Jaga Kualitas Pemilu: KPU Patuh pada Putusan MA - DKPP Tegas Sanksi Penyelenggara“ [Maintaining the Quality of Elections: KPU's Compliance with the Decisions of the Supreme Court and the Election Organizer Honorary Council (MA-DKPP) on Strict Sanctions for Organizers] on October 6th.

Zainal believes that the Supreme Court's decision regarding the 30 percent women representation is correct in substance. According to him, regardless of the approach used, the Supreme Court's decision is already appropriate because there is indeed something to be achieved.

Zainal finds the logic of the KPU issuing circulars to political parties to be peculiar. He explains that legal products issued correctly by an authorized institution are valid and binding. The Supreme Court's decision is final because there is no other institution left for an appeal.

“So it is indeed haram (forbidden) to be rounded down and mandatory to be rounded up. Affirmative action falls within the concept of equity; we can't use the philosophy of 'equality before the law,'" emphasized Zainal.

The PKPU must be revised because it is legally mandated. The PKPU and the law are part of a single package in conducting elections. By issuing that circular, Zainal metaphorically describes that the KPU chose to strike with a cork when they actually have a hammer for the job.

"The KPU must be aware that this is a matter of politics. If they allow such a loophole to exist, it's as if the KPU is intentionally creating a fire hazard," he emphasized.

According to Zainal, the risk is that if state authorities do not uphold legal decisions, it would constitute an arbitrary action. Therefore, the Election Organizer Honorary Council (DKPP) as the ethical council overseeing the Election Commission (KPU) must take decisive action because the KPU is not complying with legal decisions, court orders, and statutory regulations established in court.

"The DKPP, whether they like it or not, must act professionally. The DKPP cannot take things lightly because the stakes are high, and it concerns the future of elections," he continued.

Constitutional Law expert from the Indonesian Jentera Law School, Bivitri Susanti, explained that substantive democracy cannot occur if the representation of women is not accommodated. This will have an impact on resulting policies being biased and imbalanced.

Bivitri sees PKPU 10/2023 as too mathematical and not supportive of women's representation. She mentioned that the regulation only favors political parties that have failed to provide political education and build integrity within their systems.

"Instead of addressing that failure, it is being covered up by damaging our electoral system. The party is the one that's at fault, but the electoral system that's being damaged," said Bivitri.

The representation of women in political parties has, until now, remained artificial because the goal is power, not democracy. She highlights a common phenomenon in political parties, where women members are only placed to fulfill quantity requirements and well-known women are invited to gather votes.

Furthermore, Bivitri thought that the KPU's effort to refrain from revising PKPU may result in a legal loophole that political parties could very likely exploit for their own interests. This would also render the electoral process unsubstantial because there is never a firm commitment.

Member of the KPU from 2004 to 2007 period, Valina Singka Subekti expressed her disappointment in the KPU's actions. According to her, achieving a minimum of 30 percent women representation is a national commitment to ensure the integrity of elections. As an electoral management body, the KPU should revise the PKPU and ensure women’s representation through clear regulations.

"Not by creating official circular notes to the political parties, but the KPU should revise the PKPU and the parties must implement the PKPU that is created," explained Valina during a discussion titled "Jaga Kualitas Pemilu: KPU Patuh pada Putusan MA - DKPP Tegas Sanksi Penyelenggara“ [Maintaining the Quality of Elections: KPU's Compliance with the Decisions of the Supreme Court and the Election Organizer Honorary Council (MA-DKPP) on Strict Sanctions for Organizers] on Friday, October 6, 2023."

Valina is highlighting the issue of the declining independence of the General Election Commission (KPU). According to her, the independence of electoral organizers is an integral part of "election with integrity" and should be reflected in overall policies.

Furthermore, she elaborated that the issue of the KPU's independence is closely related to the initial construction of the institution. From the beginning, the KPU was not constructed to be the same as or equal to other institutions. According to her, through the term "independence" implies that the KPU is not entirely independent, for example, with derivative regulations that increasingly bind the KPU in areas such as recruitment systems, regulation formulation, and election budgets.

"All of these factors prevent the KPU from being fully independent. That's why electoral organizers need to be supervised. It's not an issue, because even with the current level of pressure and oversight, there are still violated," she stated.


KPU Causes Setback in Women's Struggle

A Constitutional Law lecturer at Brawijaya University, Dhia Al-Uyun explained that the purpose of affirmative action is a policy used to correct discrimination because there was indeed prior discrimination against women. This is regulated in the constitution in Article 28H (2) of the 1945 Constitution, which states, "Every person has the right to receive facilities and special treatment to obtain equal opportunities and benefits to achieve equality and justice."

Furthermore, Dhia explained that since July 24, 1984, the Indonesian government officially ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) through Law No. 7 of 1984. For your information, CEDAW was born out of the experiences of women facing discrimination in various parts of the world and the long struggle to establish a global commitment that women's rights are human rights.

"So if the KPU plays around with regulations on the women’s representation, it has broader implications. It's no longer just a matter of the constitution but also international commitments. And that's not something that can be debated anymore," Dhia explained.

According to Dhia, the struggle for gender equality by women has been ongoing and developing for a long time. Failure to revise the PKPU will set back the progress in women's struggle, and the government's efforts towards equality will not be realized.

"If that wound (discrimination against women) is allowed to remain open, it will never fully heal," she emphasized.

Dhia further explains that to implement the Supreme Court's decision, there is no need for additional legal experts because all the rules are already clear. The flaws in the regulations, if not corrected promptly, will lead to more adverse consequences.

"Hopefully, the KPU can use common sense to revise the PKPU because this is extremely crucial. If left unaddressed, it will set back gender equality," Dhia concluded. []


Translated by Catherine Natalia