By: Firdaus ArifinWriter: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: the Daily Lampung Post, 6 November 2008.
THE process of election of the President and Vice President (election) will take place in 2009 is still one more year. However, exchanges presidential candidate (candidates) the more crowded.
A number of political figures old and new in no doubt promote yourself to the people through news and advertising in various media, both print and electronic. It was a political imagery of the figure of a president who has built and introduced to people early on.
Now, the interesting for further examination of issues surrounding this candidate, namely the emergence of some presidential candidates that come from individual lines (independent / nonpartai). The question is whether it is possible or not this individual candidates can participate in the election process through 2009 without a political party (parties)?
When you look at the political reality now, a number of political leaders young and old alike will be optimistic enough individual route to forward a presidential candidate, although the road was very complicated to adopt. On the other hand, the political party (parties) are still being berkukuh for individual candidates not to damage the privileges (privileges) and propose them in nominating candidates for president.
Problems that arise while the individual presidential candidates collide with the existing constitutional rules, including Article 6 A Paragraph (2) of the 1945 Constitution which reads, "Couple presidential candidate and vice president proposed a political party or coalition of political parties contesting the general election before the election general. "
That is, the spirit of the individual presidential candidates will hit the applicable law (positive law). When viewed from the side of democracy, of course there are unilaterally injustice. Logically, the current 1945 Constitution is still to take their side in the internal political parties only, and does not apply to independent candidates.
This is very different compared with South Korea's constitution, for example, that only put "(4) Citizens who are eligible for election to the National Assembly, and who have reached the age of forty years or more on the date of the presidential election, are eligible to be elected to the Presidency; (5) Matters pertaining to presidential elections are determined by law. " Which means, there is no absolute regulations concerning the necessity of parties or coalitions of political parties as candidates brought in Indonesia.
Let the law then determines. Provisions that are at the level of this Act will make it easier to form konstitusionalismenya. If you want the role of political parties law, will be included. If not, a legislative review or judicial review can be done for it.
Could it be?
Regarding the provisions of Article 6 A Paragraph (2) of the 1945 Constitution, does not mean making a political party as the only path to a presidential-vice. The provisions of Article 6 is only preferences. That is, there is the possibility of another point outside these preferences should be open and not be intended to close another lane outside parties. Thus, individual candidates will provide many opportunities for the creation of democratic ideas and how to maintain tolerance as a great nation.
When conceived, the life of democracy in this country it has been a strange combination of pragmatism and political centralism to operate a democracy, by itself lead to political self-interest as the worst display of individualism. So centralism which operates through pragmatism in the freedom, will provide an opportunity for politicians to avoid public responsibility (collective) in order to maximize the fulfillment of the individual.
What happens, when the next presidential election presidential nomination only monopolized political parties like that, maybe, the dream of this country to get leaders who really statesmen through the election impossible. Most likely, the candidate who offered only candidate with a mere political acceptability. That's because the needs of individual candidates in order to minimize the failure of the constitutional role of political parties.
As a need and constitutionalism, then no one did when the nation from the presidential aspirations of individuals.
Alternative Solutions
Indeed, there may be room for individual candidates. Therefore, the problem, namely the contradiction of the constitution itself. Although Article 6 A (2) there is, the right to elect and be elected as a possible presidential candidate and Article 28 of the constitution can be a driveway. The debate until now, how the solution of constitutional contradictions in carrying presidential candidate in this nonpartai line?
There are some opinions that might be a picture of the solution. First, change the 1945 Constitution may be the solution, then the contradiction would be over. In fact, President Yudhoyono had said, that the 1945 changes made quickly, if necessary, the next government post-election 2009, the 1945 Constitution which had been teramendemen,
Second, to include independent candidates in the Presidential Election Act. Therefore, Article 6A Paragraph (2) '45 Constitution does not preclude the possibility that, if the article is interpreted as a section of the governing political party candidates.
Third, constitutionalism directed to individual candidates by examining the Act (judicial review) the old Presidential Elections to Constitutional Court. Act No. Test material. 23 of 2003 on the Election of the President and Vice President of the Constitutional Court should be to Article 1 point (6), Article 5 Paragraph (1) and Article 5 Paragraph (4).
These articles contrary to Article 27 Paragraph (1), Article 28D Paragraph (1), Article 28D Paragraph (3), and Article 28I Paragraph (2) of the 1945 Constitution. Therefore, Article 1 point (6), Article 5 Paragraph (1), and Article 5 Paragraph (4) states is the only path to a presidential and vice (vice president) is through a political party or coalition of parties.
When the Court opened up new possibilities, by itself the next presidential election, the Act would include clauses individual candidates. Through the model of constitutional adjudication of the Constitutional Court an effective and efficient, the constitution can be widened without passing through the 1945 change process.
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