Jurnal Hukum Volkgeist

Volume 4 Issue 1, December 2019
P-ISSN : 2528-360X, E-ISSN : 2621-6159

Election violation and election law enforcement in general election in

Indonesia

Syailendra Anantya Prawira1, Amalia Diamantina2

Abstract Author’s Information:
General Elections are the embodiments of the mandate
stipulated in the 1945 Constitution of the Republic of
Indonesia Article 1 paragraph (2) which affirms that
"sovereignty is in the hands of the people and carried out
according to the Constitution". The Formulation Document
that will be formulated in the research are: (1) What is the
violation in the general election? And (2) What is law
enforcement in general election. The method used in this
study is normative legal research, normative legal research
methods or library law research methods are methods or
procedures that are used in legal research by examining
existing library material. Election violations constitute acts
prohibited by the Election Law against election organizers
resulting in the imposition of sanctions for violations. The
enactment of Law Number 7 Year 2017 on General
Elections provides for different types of violations, disputes,
criminal offenses and electoral disputes. The crime of
elections is a criminal offense punishable by a particular
punishment based on the criminal justice system. The
purpose of election is to carry out popular sovereignty and
the realization of the political rights of the people to produce
leaders who will occupy important positions in the
government.
Keywords: Election Law Enforcement; Election Violation;
General Election

1 Magister Ilmu Hukum,

Universitas Diponegoro,

Semarang
(syailendraanantya@gmail.com)
2 Fakultas Hukum, Universitas

Diponegoro, Semarang
(amaliadiamantina.undip@gmail.com)

Article’s Information:
DOI:

https://doi.org/10.35326/volkge

ist.v4i1.424

1. Introduction
General Elections (Pemilu), including both Presidential and parliamentary

elections; the elections for electing members of House of Representative (DPR),

Regional Representative Council (DPD) and Regional House of Representative

(DPRD); are the embodiments of the mandate stipulated in the 1945 Constitution of the

Republic of Indonesia Article 1 paragraph (2) which affirms that "sovereignty is in the

hands of the people and carried out according to the Constitution". The realization of the

popular sovereignty is manifested through direct elections as a tool for the people to

choose their representatives who will perform supervisory function, channeling the

political aspirations of the people, law making as a basis for all parties in the Republic

of Indonesia in carrying out their respective functions, and formulate income and

expenditure budgets to finance the implementation of these functions.

The Constitution of the Republic of Indonesia in 1945 clearly regulates the

implementation of elections. Article 22E of the 1945 Constitution of the Republic of

Indonesia as follows:

mailto:syailendraanantya@gmail.com
mailto:amaliadiamantina.undip@gmail.com
https://doi.org/10.35326/volkgeist.v4i1.424
https://doi.org/10.35326/volkgeist.v4i1.424

Jurnal Hukum Volkgeist Syailendra Anantya Prawira. 4(1): 25-34

(1) General Elections are held based on direct, general, free, confidential, honest, and

fair principles every five years.

(2) General elections are held to elect members of the House of Representatives,

Regional Representatives Council, the President and Vice-President and the

Regional House of Representatives.

(3) Participants in the general election to elect members the House of Representatives

and members of the Regional House of Representatives are political parties.

(4) Participants in the general election to elect members of the Regional Representative

Council are individuals.

(5) General elections are held by a general election commission that is national,

permanent and independent.

The Indonesian election law is regulated in the constitution, so it is legally

supported. It is also an integral part of the concept of both popular and legal sovereignty

used in the context of the Republic of Indonesia. The definition of General Elections in

Law Number 7 Year 2017 mentions the positions to be contested. This can be seen in

Article 1 point 1 of this Act which reads: "The general election which is then called the

election is a means of popular sovereignty to elect members of the People's Legislative

Assembly, members of the Regional Representative Council, President and Vice

President, and to elect members of the House of Representatives Regional People,

which are carried out directly, publicly, freely, confidentially, honestly and fairly in the

Republic of Indonesia is based on Pancasila and the 1945 Constitution of the Republic

of Indonesia" (Jurdi, 2018).

As an embodiment of democracy, in the International Commission of Jurist,

Bangkok in 1965, formulated that "Organizing free elections is one of the six basic

requirements for a democratic country representatives under the rule of law ". Then also

formulated definition of a democratic government based representative, namely: a form

of government in which citizens the state exercises the same rights but through

representatives chosen and accountable to them through free election process.

The purpose of election in its implementation has three objectives namely (Huda

& Fadhlika, 2019 : 547) :

(1) As a mechanism for selecting government leaders andalternative public policy.

(2) Election as a transfer of conflicts of interest from the community to people's

representative bodies through elected representatives or the party wins the seat so that

community integration remains guaranteed.

(3) Elections as a means of mobilizing, mobilizing or mobilizing popular support for the

State and government by participating as well as in the political process. The purpose of

the election in its implementation.

Political participation is a form of the realization of a demoralized state. Countries

without political participation from society tend to be authoritarian and centralistic.

Political experience during the New Order shows the arbitrariness of the takers political

decisions in every policy formulation and program planning. As a result, policies or

those that are decided are often not according to needs the community. Political

participation of the community is a good form of self-giving form of participation,

attendance, ideas, involvement in policy formulation and giving themselves under

supervision when the policy is about to be implemented (M.Liando, 2016 : 14).

Jurnal Hukum Volkgeist Syailendra Anantya Prawira. 4(1): 25-34

In democracy, there are participatory values and sovereignty which is upheld and

must be exercised by citizens and state instruments at the legislative, judicial and

executive levels. Relationship between citizens and state even though it is still a

distance but can be facilitated by various institutions and elements of society because of

the freedom for all parties to participate and actively in national development both in

political development and other fields (Bachtiar, 2014 : 12). The community is given

space to play an active role and become a part of democratic process. Although

substantially, their participation is still inclined procedural and momentum.

General Elections Commission (KPU), General Elections Supervisory Board

(Bawaslu), and The Honorary Council of General Election Organizers (DKPP). The

positions of these three institutions are strengthened and clarified their duties and

functions and adapted to the legal requirements in the conduct of elections. Institutional

strengthening is intended to create smooth, systematic and democratic elections. In

general, this law regulates election organizers, elections, election violations and election

disputes, as well as election crimes.

2. Method

Based on the problems that will be examined by the author, the study in this

article uses a doctrinal approach. This study grouped into the normative juridical

domain, namely research conducted to obtain information and explanations and data

about things that are not yet understood. In how to collect data, look for literature that is

solved by reading, reading, and reading various literatures. Normative juridical means

solving legal problems and at the same time prescribing what is most needed by legal

sources that contain primary legal materials and secondary legal materials. Because of

the nature of the research activities carried out with normative research, the library

method is the most appropriate.

The normative approach is defined as an approach that is deployed through

literary research (library research) by reading, quoting, and analyzing the laws and

regulations, and legal theories related to the problems that exist in the study (Soekanto,

2012). It also refers to a study that discusses doctrines or principles in legal science,

both in legislation and theory or legal experts’opinion and the results of previous

studies. Meanwhile, statutory approach is an approach that is carried out by examining

all laws and regulations relating to legal issues handled (Marzuki, 2009).

3. Election Violation And Election Law Enforcement in General Election

The electoral law enforcement system is a series of regulations that aim to address

election legal issues. The legal issues of elections are all legal actions that deviate,

contradict, or violate election laws and regulations, including those who have been

disadvantaged in the process of election. Democratic election standards require fair

elections (free and fair elections) that could be achieved if a legal instrument is available

that regulates all election implementation processes; as well as being able to protect the

organizers, participants, candidates, voters, monitors and citizens in general from fear,

intimidation, violence, bribery, fraud, and various other fraudulent practices that will

affect the election results. Therefore, an honest and fair election requires electoral

legislation and the apparatus in charge of enforcing the election legislation.

3.1 Election Violation

Election violations are acts that are prohibited by the Election Law against

election organizers which results in the imposition of sanctions on violations. Election

Jurnal Hukum Volkgeist Syailendra Anantya Prawira. 4(1): 25-34

crimes are criminal acts that are threatened with certain penalties based on the criminal

justice system. In addition, there are also issues of state administration related to the

decisions of election organizers that harm citizens so that they can be sued in the state

administrative court. The Law Number 7 of 2017 about Elections regulates differently

regarding violations, disputes, criminal acts and disputes in elections. As stipulated in

the Fourth Book of this law, there are three types of problems in elections, namely: 1.

Election violations; 2. Disputes over the election process; 3. Disputes over election

results.

1. Violation of the code of ethics for election administrators.

Violations of the code of ethics for election administrators is a violation of the

ethics of election administrators who are guided by oath and / or promises before

carrying out their duties as election organizers. Violation of the code of ethics is a

violation of the moral and ethical principles of an election organizer that is guided by an

oath and / or a promise before carrying out the duties as election organizer and the

principle of the election organizer that is implemented and determined by the General

Election Commission (KPU). The purpose of the code of ethics is to maintain the

independence, integrity, accountability and credibility of election organizers. The

purpose of the code of ethics is to ensure the implementation of direct, public, free,

confidential, honest and fair elections.

In this case, Sardiniexplained 13 modes the code of ethics violation for election

administrators consisting of (Surbakti, Supriyanto, & Santoso, 2011):

a. Vote Manipulation is to reduce, add, or move the vote acquisition from one election
participant to another election participant, which are beneficial and / or detrimental

to the election participants with each other.

b. Bribery of Officials is the provision of a sum of money or goods or a special
agreement to the Election organizer with the intention of fulfilling the interests of

the giver or to benefit and / or harm another party in the participation of an election

(candicacy).

c. Un-Equal Treatment is treatment that is not equal or biased to election participants
and other stakeholders.

d. Infringements of the Right to Vote, are violations of the right to vote for citizens in
elections.

e. Vote and Duty Secrecy is to openly inform their political choices and ask about
their political choices in the Election to other people or voters.

f. Abuse of Power is utilizing positions and their influences, either on the basis of
kinship, traditional authority or work, to influence other voters or the General

Election organizers in order to obtain personal benefits.

g. Conflict of Interest.

h. Sloppy Work of EectionProcess, is inaccuracy or irregularities or errors in the
Election process.

i. Intimidation and Violence is to commit acts of violence or intimidation physically
or mentally.

j. Broken of Breaking of the Law, is taking action or engaging in a violation of law.

Jurnal Hukum Volkgeist Syailendra Anantya Prawira. 4(1): 25-34

k. Absence of Effective Legal Remedies, are mistakes that can be tolerated humanely
to the extent that they do not result in damage to the integrity of the implementation

of the General Election, as well as the destruction of the independence and

credibility of election organizers.

l. The Fraud of Voting Day is an error committed by election organizers on polling
day and vote counting.

m. Destroying Neutrality, Impartiality, and Independent or destroying / disturbing /
influencing neutrality, impartiality, and independence.

Based on the provisions in Article 22 E of the 1945 Constitution (result Third

Amendment) General Election regulating principles are as follows (Winardi, 2009 :

153):

a. General elections are held direct, public, free, honest and fair every five years;
b. General elections are held to elect members House of Representatives, Regional

House of Representatives, President and Vice President, and Regional

Representative Council;

c. Participants in the general election to elect members of the Council People's
Representative and members of the Regional People's Representative Council is a

political party;

d. Participants in the general election to vote members of the Regional Representative
Council are individuals;

e. Elections are held by an election commissiongeneral national, permanent and
independent.

2. Election administration violations.

According to the Election Law, violations of the Election administration are

violations which include procedures and mechanisms relating to the administration of

the election in each stage of the implementation of the General Election outside the

Election crime and violations of the code of ethics for election administrators. Election

administrative violations are violations of administrative provisions (usually concerning

criteria and requirements) as stipulated in the electoral law and other regulations.

Administrative violations are handled by election supervisors and submitted to the KPU

and its staff to be sanctioned. The sanctions would be in the form of verbal reprimand,

written reprimand, prohibition on carrying out certain activities, up to write off from the

list of election participants or the candidate list.Election administration violations are

violations of the provisions of the Election Law which are not criminal provisions for

elections and other provisions stipulated in the KPU regulations. The provisions and

requirements under the Election Law could, of course, be in the form of provisions and

requirements that are regulated, both in the Election Law and in regulating KPU

decisions as implementing regulations of the Election Law.

Therefore, elements of election administration violations can be identified as

follows:

a. Violation of procedures, procedures and mechanisms relating to the administration of

the implementation of the General Election in each stage of the implementation of

the General Election.

b. Those violations are other than election crime and implementation of the Election

Organizer code of ethics.

Jurnal Hukum Volkgeist Syailendra Anantya Prawira. 4(1): 25-34

The completion of election administration violations is intended to maintain the

independence, integrity, accountability and credibility of election organizers. The

completion of this election administration violation aims to ensure the holding of

elections directly, publicly, freely, confidentially, honestly and fairly.

3.2. Law Enforcement in General Election