The Constitutional Court in its regulation regulates parties who have legal standing for applicants from empty columns in disputes over election results with one candidate's spouse. However, the provisions stipulated in PMK 5/2020 have errors regarding the understanding of applicants who are not connected with the provisions in the Election Law.
Mk 5/2020 regulation contains the provision of legal standing as an Applicant in a single-candidate election, namely election monitors. Article 4 paragraph (1) d reads:
"The applicant in the case of disputed election results is: election monitor in the event that there is only one candidate pair."
Then, paragraph Article 4 (2) reads that, The Election Monitor who acts as the Applicant in the dispute of the election results that there is only one candidate pair, is an Election Monitor who is registered and obtains accreditation from Bawaslu. If the context of the election of governors-vice governors, then accreditation from Bawaslu province. If the context of the election of regents / mayors - vice mayors, then accreditation from Bawaslu district / city.
The provisions of PMK 5/2020 Article 4 paragraph (2) are not in accordance with the laws and regulations above, namely the Regional Election Law. According to the Law on Regional Elections, the registration and accreditation of Election Monitors in regional elections is the authority of the KPU. Accreditation of Election Monitor of governors- vice governors, comes from the provincial KPU. Accreditation of Election Monitors of regents/mayors/mayors, comes from kpu district / city.
Law 10/2016 Article 54C reads the choice of "blank column" on a single-candidate electoral ballot. Indeed, this Election Law does not include legal standing provisions for parties who want to name an empty column to apply for disputes over the election results with one candidate's spouse.
However, the Electoral Law has provisions on accredited monitors. Law 1/2015 Article 89 paragraph (7) reads:
"Voting monitoring is carried out by election monitors who have been accredited by the Provincial KPU or KPU Kabupaten/Kota."
Then the Chapter XVII Election Law on Monitors, regulates in more detail about election monitors. Among them is Article 123 paragraph (3) which reads,
"Election monitoring agencies must meet requirements that include: a. independent; b. have a clear source of funds; and c. registered and accredited by the Provincial KPU or KPU Kabupaten/Kota in accordance with the scope of its monitoring area."
Clearly illustrated the discrepancy between the PMK and the Electoral Law. Discrepancies between the implementing regulations and the laws in which they are referenced. This is clearly a problem in the hierarchy of legislation.
Article 7 paragraph (2) and Article 8 of Law 12/2011 with its implementation conclude that PMK is a statutory regulation other than those referred to in the hierarchy of legislation. However, PMK 5/2020 is a regulation that is bound by higher legislation, in this case the Election Law.
With these legal circumstances, relevant stakeholders must be aware of this incompatibility of understanding. The Constitutional Court as the authority to issue PMK 5/2020 must revise the accreditation provisions of election monitors as a party that has a legal position in the application for disputes over election results. KPU and Bawaslu accompany the involvement of KPU and Bawaslu in districts / cities that have elections with one candidate pair must also know this and convey the need for legal certainty to the Court.
Based on the constitution, the Constitutional Court is an institution authorized to overcome disputes of authority between state institutions. However, because of PMK 5/2020, the Court instead created a dispute of authority between the KPU and Bawaslu in granting accreditation of election monitors as the applicant of an empty column that disputed the results in the election with one candidate pair. []
USEP HASAN SADIKIN
