THE MEANING OF REGIONAL HEAD ELECTIONS (PILKADA) ACCORDING TO ARTICLE 18 PARAGRAPH (4) OF THE 1945 CONSTITUTION

THE MEANING OF REGIONAL HEAD ELECTIONS (PILKADA)

ACCORDING TO ARTICLE 18 PARAGRAPH (4) OF THE 1945 CONSTITUTION*)

By:

Muhammad Irham

Abstract

The implementation of regional government is regulated by several laws. During the New Order, this was regulated by Law Number 5 of 1974 concerning the Principles of Regional Government. In the Reform Era, several laws governing Regional Government were enacted, namely Law Number 22 of 1999 concerning Regional Government, Law Number 32 of 2004 concerning Regional Government, and Law Number 12 of 2008 concerning the Second Amendment to Law Number 32 of 2004 concerning Regional Government. The type of research used is normative legal research, namely research conducted or aimed at written regulations and other legal materials that are secondary data in libraries and other legal journals. From the discussion above, it can be concluded that the meaning of Article 18 Paragraph (4) of the 1945 Constitution is as follows: 1. Those who are democratically elected are regional heads (Governor, Regent, Mayor). In other words, Deputy Regional Heads (Deputy Governor, Deputy Regent, Deputy Mayor) are not required to be elected as one package with the regional head. This provision can also be interpreted that the position of deputy regional head can actually be eliminated in the Regional Government system. 2. The presence of Law Number 22 of 2003 concerning the Composition and Position of Members of the MPR, DPR, DPD, and DPRD (has been replaced by Law No. 7 of 2009), which no longer gives the DPRD the authority to elect Regional Heads and Deputy Regional Heads, which was then followed by the enactment of Law Number 32 of 2004, provides legal certainty that the meaning of "democratically elected" is direct election by the people (one man one vote).

Keywords: 1945 Constitution, Regional Head Elections

1. Introduction

Immanuel Kant, as quoted by Soehino in Salim, HS, argued that: "The purpose of the state is to uphold the law and guarantee the freedom of its citizens. In this sense, freedom is freedom within the limits of legislation, while the people themselves make the laws. Laws are the embodiment of the will or desire of the people. Therefore, it is the people who have the highest power or sovereignty."[2]

As a nation that desires to remain united, we have established the foundation and ideology of the state, namely Pancasila, which was chosen as the unifying and binding basis that then gave birth to guiding principles in social, political, and legal life. Furthermore, the principles and mechanisms of state administration to guarantee democracy are regulated in the 1945 Constitution of the Republic of Indonesia (UUD 1945), which sets the guidelines for maintaining this nation's integrity. Thus, the guidance for integration and democracy as proposed by Geertz has been regulated in Pancasila and the 1945 Constitution.[4]

1. Research methods
2. Types of Research and Research Approaches

The type of research used is normative legal research, namely research conducted or aimed at written regulations and other legal materials which are secondary data found in libraries and other legal journals.[6]

1. Research on legal principles, such as research on written positive law or research on legal rules that exist in society.
2. Research into legal systematics is carried out by examining the basic understanding of the legal system contained in statutory regulations.
3. Research into legal synchronization can be carried out either vertically (different degrees) or horizontally (same degree/equal).
4. Legal history research focuses more on legal developments. Each analysis conducted in this research will utilize comparisons with one or more legal systems.
5. Comparative legal research is research that emphasizes and looks for differences that exist in various legal systems.

Meanwhile, the research approach used is an approach that starts from legal principles, such as research on written positive law or research on legal rules that exist in society, namely by examining written legal materials and legal theories. Furthermore, according to Peter Mahmud Marzuki, the approach to legal research consists of: the legal approach (statute approach), case approach (case approach), historical approach (historical approach), comparative approach (comparative approach), and conceptual approach (conceptual approach).Data Types and Data Sources

The data collection tool used in this research is a literature study where data is obtained from:Primary legal materials, namely including laws and regulations relating to the problem being researched, including:

– 1945 Constitution;

– Law Number 12 of 2011 concerning the Formation of Legislation;

– Other laws and/or regulations related to this research.

1. Secondary legal materials, namely materials that provide explanations and are closely related to primary legal materials, can help analyze and understand primary legal materials. These primary legal materials include: books, research results, magazines, legal journals or general journals, articles, lecture notes and papers, and other materials related to the problem being studied.
2. Tertiary legal materials are legal materials that support primary and secondary legal materials, such as the General Dictionary of the Indonesian Language.

1. Data collection technique

In normative legal research, several data collection techniques can be used, including:

1. Collecting information to get an overview or information about similar research and related to the problem being researched.
2. Inventory of materials to obtain methods, techniques, or approaches to problem solving used as secondary data sources.
3. Visits to libraries, both regional libraries, faculty libraries and university libraries to obtain books, previous research results related to research problems, for example research reports, bulletins, brochures, and so on.

                                

1. Data Analysis Techniques

In normative legal research, data management is essentially the activity of systematizing written legal materials. Systematization means classifying these written legal materials to facilitate analysis and construction.Discussion

In Law Number 32 of 2004 as amended by Law Number 12 of 2008 concerning the Second Amendment to Law Number 32 of 2004 concerning Regional Government, Article 24 paragraph (1) explains that each region is led by a regional government head called a regional head. Paragraph (3) explains that the Regional Head as referred to in paragraph (1) is assisted by one deputy regional head. Then paragraph (5) states that the Regional Head and Deputy Regional Head as referred to in paragraph (1) and paragraph (3) are elected as a pair directly by the people in the region concerned. 

From these provisions it is clear that the position of deputy regional head only existed after the issuance of Law Number 22 of 1999 and Law Number 32 of 2004 as amended by Law Number 12 of 2008 which was elected in one pair directly. Previously in Law Number 5 of 1974, the administration of regional government was only carried out by the Regent/Mayor who was the sole ruler in the region who was elected through a plenary session of the DPRD.

Furthermore, according to Bagir Manan, as quoted by Suharizal, Article 18 of the amended 1945 Constitution is more in line with the idea of ​​regions forming regional governments as independent government units in democratic regions. Bagir Manan further stated that the principle of deconcentration is an instrument of centralization, therefore it is very wrong to place it in the regional government system, which is the antithesis of centralization.The 1945 Constitution does not require regional heads to be elected directly, and regional head candidates do not have to come from political parties or a coalition of political parties.The phrase "democratically elected" cannot be interpreted as implying that the recruitment of candidate pairs is the sole responsibility of political parties, as institutions responsible for political recruitment for filling public office through democratic mechanisms. Democracy demands that regional governments receive autonomous rights.The institution that has the authority to recruit regional head candidates is the institution that is also responsible for implementing elections (Presidential and Vice Presidential Elections and Legislative Elections), namely the KPU(D). Article 22E paragraph (1) states; "General elections are held directly, generally, freely, secretly, honestly and fairly every five years." Paragraph (2) "General elections are held to elect members of the People's Representative Council, Regional Representative Council, President and Vice President and Regional People's Representative Council." Meanwhile, as the implementer, Article 22E paragraph (5) states; "General elections are held by a national, permanent and independent general election commission.Article 18 Paragraph (4) only requires that the regional head (Governor, Regent, Mayor) be democratically elected. In other words, the Deputy Regional Head (Deputy Governor, Deputy Regent, Deputy Mayor) is not required to be elected as one package with the regional head. This provision can also be interpreted to mean that the position of deputy regional head can actually be eliminated in the Regional Government system.[15]

Regional heads and deputy regional heads often break up due to a conflict of interest. It's not uncommon for both to decide to run for reelection in the next term. As a result, both regional heads and deputy regional heads are preoccupied with seeking influence and support to secure their election victories. Consequently, regional leaders' focus shifts from implementing development and improving public welfare to garnering influence and support from all levels of society, including the bureaucracy. This disunity also leads to employees losing focus on improving their performance, driven by partisanship.Conclusion

From the discussion above, it can be concluded that the meaning of Article 18 Paragraph (4) of the 1945 Constitution is as follows:

1. The regional head (Governor, Regent, or Mayor) is democratically elected. In other words, the Deputy Regional Head (Deputy Governor, Deputy Regent, or Deputy Mayor) is not required to be elected as part of the same package as the regional head. This provision can also be interpreted to mean that the position of Deputy Regional Head can actually be eliminated from the regional government system.
2. The presence of Law Number 22 of 2003 concerning the Composition and Position of Members of the MPR, DPR, DPD, and DPRD (has been replaced by Law Number 7 of 2009), which no longer gives the DPRD the authority to elect Regional Heads and Deputy Regional Heads, which was then followed by the enactment of Law Number 32 of 2004, provides legal certainty that the meaning of "democratically elected" is direct election by the people (one man one vote).

REFERENCES

Book :

Bambang Sunggono, 2011, Legal Research Methodology, Rajawali Press, Jakarta

Dahlan Thaib, 2011, Constitutional Theory and Law, Rajawali Press, Jakarta

Peter Mahmud Marzuki, 2011, Legal Research, Golden, Jakarta

Salim, HS, 2010, Development of Theory in Legal Science, Rajawali Press, Jakarta

Moh. Mahfud MD, 2010, Constitution and Law in Controversy and Issues, Rajawali Press, Jakarta

______, 1998, Legal Politics in Indonesia, LP3ES Library, Jakarta, p.

Soerjono Soekanto and Sri Mamudji, 2006, Normative Legal Research: A Brief Overview, Rajawali Press, Jakarta

Suharizal, 2011, Regional Elections: Regulations, Dynamics, and Future Concepts, Rajawali Press, Jakarta

______, 2002, Constitutional Reform 1998-2002: The Struggle for Concepts and Thoughts on Amendments to the 1945 Constitution, Orchid Law Firm, Padang

Constitution :

1945 Constitution

Law Number 22 of 2003

Law Number 32 of 2004

Law Number 7 of 2009

Website:

http://padangekspres.co.id

http://avivsyuhada.wordpress.com

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