Rejecting the Cancelation of 2024 General Elections

Several general chairmen of political parties supporting the government of President Joko “Jokowi” Widodo have proposed that the 2024 General Elections (Pemilu 2024) be postponed for some years.

This proposal cannot be ignored and should be responded to seriously, because the postponement of general elections creates the potential for a constitutional crisis that would endanger the life of the nation and state.

One of the main pillars that define a democratic state is the organization of regular and periodic elections. This requirement is clearly stipulated in Article 21 Paragraph (3) of the Universal Declaration of Human Rights. However, it does not mean that elections cannot be put off at all. Article 4 of the International Covenant on Civil and Political Rights stipulates that in the case of a dangerous situation that threatens the life of a nation, the obligation to organize elections can be delayed.

Postponement paradox

The suspension of elections is not ahistorical. Based on data from the National Elections Across Democracy and Autocracy (Nelda), between 1945 and 2015, 144 countries had suspended elections.

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Beware of Postponing Elections

In the Covid-19 pandemic period, between 21 February 2020 and 21 February 2022, at least 80 countries and territories put off their elections, although in the same period many more states, totaling over 160 countries and territories, carried on with their elections amid the pandemic (International IDEA, 26/2/2022).

It is necessary on the one hand, but it is perilous on the other.

Yet such a postponement should be decided on the basis of objective considerations and the pure intention of saving the nation-state. Since any delay of elections bears what Toby S James and Sead Alihodzic termed in 2020 as the “postponement paradox”: in spite of postponement being allowed – even needed – it can still give rise to uncertainty, endanger democratic life and has the potential to generate distrust in the system of state governance. It is necessary on the one hand, but it is perilous on the other.

Therefore, the reason for the delay should be really studied and tested. Without pure and sincere intentions from statehood decision makers, postponing elections does not lead to salvation but rather just to the abyss of the destruction of nationhood.

Differences between postponement and cancelation

The constitutional law distinguishes between the cancelation and postponement of elections. James and Alihodzic in their article “When is It Democratic to Postpone an Election? Elections During Natural Disasters,

Covid-19 and Emergency Situations”, described seven categories of no elections.

The seven categories are cancelation, political and constitutional crisis postponement, transition postponement, technical delay, election candidate death, humanitarian postponement and election results being annulled. Postponement is characterized by a short-term election delay or time-limited postponement, rather than a long time, such as years, which is more suited to the definition of cancelation.

So, the reason for a postponement is easier to gauge and prove because it can be seen and felt, such as the effect of an earthquake or pandemic.

Postponement is usually prompted by external factors, including natural or non-natural disasters, such as the coronavirus. Cancelation is more urged by the internal desire of the incumbent to consciously seize state power without going through an election contest, which in the words of James and Alihodzic is “a deliberate statecraft power grab”. So, the reason for a postponement is easier to gauge and prove because it can be seen and felt, such as the effect of an earthquake or pandemic.

In our General Elections Law, such postponement is called continuation or follow-up elections. Meanwhile, the reason for a cancelation is more difficult to measure, it is frequently hidden or, if revealed, it is not the actual motive. It is because the incumbents, executive as well as legislative, are unwilling to acknowledge their cancelation arguments including, among other things, the need to extend the terms of office, the prediction that they will lose in the next elections, the purpose to weaken opposition parties or to buy time amid a viral negative issue affecting the incumbent (James and Alihodzic: 2000).

Kompas/Alif Ichwan

A Sisingaan dance enlivens an event on Wednesday (11/10/2018) that marks a political party’s registrationas a general elections participant at the General Elections Commission (KPU) in Jakarta. The Political Party Information System (Sipol) has been implemented for political parties looking to register for the 2019 general elections.

Upon closer examination of the proposal not to organize the elections in 2024, which would be delayed for several years, it is certainly more favorable to the incumbents because the terms of office of the president-vice president, legislators and regional heads are expected to be automatically extended. It is not appropriate to refer to such a proposal as a postponement, which can still be allowed and is constitutional, but it is more correctly called a cancelation that is obviously opposed to in the constitution.

Constitutional trickery

Unlike election postponement that is permitted with the aim of saving the nation-state and is solely in the interest of the population, election cancelation out of the desire to remain in power without elections is a breach of the constitution, so is entirely unjustifiable. The cancelation of Pemilu 2024 would violate the principles of a constitutional state and regular elections every five years (Article 1 Paragraph (3) and Article 22E Paragraph (1) of the 1945 Constitution).

The extension of terms of office of the president-vice presidents, legislators (House of Representatives, Regional Representative Council and the Regional Legislative Councils) and regional heads will violate articles on terms of office and the procedure for official appointments arranged through elections.

Even if there is the idea to amend the 1945 Constitution so that the election cancelation and extension of terms of office seem constitutional, this move remains unjustifiable.

In terms of the amendment procedure, articles can be formulated to legitimize the proposal to cancel Pemilu 2024, but in substantial terms the constitutional amendment – serving to justify the breach of the constitution to cancel the elections – is obviously opposed to the basic principle of constitutionalism, which is the limitation of power.

Also read:

Securing the 2024 Elections

The logic is that while President BJ Habibie could advance Pemilu 1999 even without any constitutional amendment because it was compatible with reducing the desire for power, the plan for the cancelation of Pemilu 2024 and the extension of the terms of office must not be carried out, even with the trick of amending the 1945 Constitution, because it essentially indicates the desire to increase power.

KOMPAS/WAWAN H PRABOWO

Rows of flags of political parties participating in the 2019 Simultaneous Elections decorate the flyover in the Senayan area, Jakarta, Sunday (7/4/2019).

Constitutional amendments to legitimize constitutional violations run counter to constitutional morality. As the fundamental law of the state, this makes it impossible to offer space to violate the Constitution itself. That’s why the oath of office of the president and vice president is “to firmly adhere to the Constitution with utmost honesty”. Consenting to the amendment of the 1945 Constitution with a constitutional violation is not a form of respect for firm adherence, but rather an act of contempt of the constitution.

Moreover, the constitutional amendment to cancel elections and the consequence of extending the terms of office of those amending the constitution constitute an amendment packed with conflicts of interest, which should thus be rejected. Furthermore, the constitutional amendment to legitimize constitutional violations is in opposition to the constitutional state (rechtsstaat) and instead reflects the actions of a power-seeking state (machtsstaat).

In brief, amending the 1945 Constitution to legitimize the cancelation of Pemilu 2024 and extend the incumbents’ own terms of office, which evidently contradicts the constitution, is not a constitutional amendment of the constitution, but instead amoral constitutional trickery. This is the reason why the proposal for the cancelation of Pemilu 2024 – even with the 1945 Constitution amendment – must be firmly and strongly rejected.

KOMPAS/RADITYA HELABUMI

Denny Indrayana

Denny Indrayana, Professor of Constitutional Law, Senior Partner of INTEGRITY Law Firm

(This article was translated by Aris Prawira)