Redesigning the Concept of Law Enforcement in Administrative Violations of General Elections in Indonesia
Trial mechanism as the only procedure in resolving election administrative violations is a mechanism that is not in accordance with the concept of law enforcement in administrative law that uses not only the trial mechanism but also direct sanctions. Therefore, the concept of law enforcement in these violations needs to be redesigned, to be in line with the administrative law and be more effective and easier to implement. This study examined the concept of law enforcement in administrative law as a conceptual and theoretical basis in redesigning the concept of law enforcement in election administrative violations. It used legal research methods with statutory, conceptual, and comparative approaches. The results of this study recommend a new concept in resolving election administrative violations by looking at the legal subjects who commit violations and the characteristics of the violations. For the violations committed by non-officials, the law enforcement is sufficient to use direct sanctions. Meanwhile, for the violations committed by officials, if they cause direct losses, it must use a trial mechanism. But, if the violation is only limited to non-compliance with the legislation and does not cause harm to anyone, direct sanctions can be executed. Hence, it is necessary to change the mechanism for resolving election administrative violations as stipulated in the Election Law.
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Introduction
The first election in Indonesia was held in 1955 in two stages, the election of Legislative Assembly members held on 29 September, 1955 and the election of Constituent Assembly members held on 15 December, 1955. The implementation process of the election was considered the most successful one because it was carried out securely, honestly, smoothly, and fairly. However, the next election was not the same as the first election, because the next election was prone to being controlled by politics and caused many election violations and disputes, including the implementation of elections after the reformation era1
Various problems in elections are always accompanied by many factors, including ethical, administrative, and even criminal issues2. It cannot be separated from the fluctuating dynamics of elections influenced by political changes in a certain period of time3. Vickery argued that a strong electoral structure must have the capacity to resolve disputes that arise during elections through a fair, transparent, and efficient process4.
Each country has a different way of resolving various electoral issues, including Indonesia. The Election Law in Indonesia through Law Number 7 of 2017 concerning Elections (hereinafter referred to as the Election Law) classifies the issues into several concepts of election violations, namely administrative violations, violations of the election code of ethics, and violations of other laws (Article 455 of the Election Law). In addition, there are also disputes over the electoral process and election results.
Administrative violations in the general election are defined as violations that include offences of procedures or mechanisms related to the administration of elections in each stage (Article 460 of the Election Law). They can be committed by the General Election Commission as an election organizing official, Political Parties as election participants for legislative candidates, Presidential and Vice-presidential candidates, Regional Representative Council candidates (individual), and even the voters.
The mechanism for resolving administrative violations is handled by General Election Supervisory Board (Badan Pengawas Pemilu/Bawaslu) in the state, province, and regency/city; as well as the sub-district level committee (Panitia Pengawas Pemilu/Panwaslu) in accordance with the attribution of authority at each institution. The central to the district/city-levelBawasluhave the authority to resolve the problems through trial mechanism for a maximum of 14 working days. This mechanism is regulated in detail in Article 461 of the Election Law.
The enforcement of the trial mechanism for electoral administrative violations has experienced difficulties to carry out, because many administrative violations only require simpler handling, in other words, not all the violations are handled through a trial. However, mechanisms other than trials are not clearly regulated in the Election Law, making it difficult forBawasluin all levels to determine the appropriate mechanism for the violations. In practice, the violations resolved through a trial mechanism are only violations committed by the General Election Commission, while the violations committed by the political parties participating in the election, the candidates, and the voters do not use a trial mechanism.
The object of an election administration violation is any act or action that violates the measures, procedures, or mechanisms related to the administration of the election in each stage (Article 5 Election Supervisory Body Regulation Number 8 of 2022). When the person who commits the violation is a State Administrative Official, the object of the violation needs to be adjusted to the expansion of the object of state administrative disputes, which is not only in a decision letter issued by the State Administrative Officials but also Factual Actions carried out by them or State Administrative Body (materiële daad/feitelijke handelingen) after the issuance of Law Number 30 of 2014 concerning Government Administration5
It can be said that the concept of law enforcement on election administrative violations should use the concept or theory of law enforcement in administrative law. Administrative law has different characteristics from civil and criminal law, especially in terms of law enforcement for violations in administrative law. Law enforcement of administrative violations is not resolved through the judicial process but is enforced through direct sanctions by state administrative officials or known as administrative actions. Administrative courts are only resolving disputes that occur between state administrative officials and certain individuals in society, both in the form of individuals (naturlijkperson) and legal entities (rechtperson).
The legal problems above will be the focus of research in this article. This research will offer a solution to the conceptual problem in law enforcement for election administrative violations, namely in the form of offering a redesign of the law enforcement mechanism for election administrative violations as regulated in articles 460 and 461 of the Election Law. The redesign refers to the concepts and theories of law enforcement in administrative law.
This research used a normative research method6, with approaches that include statute approach, conceptual approach, and comparative approach. This research examined the normative problems contained in Law Number 7 of 2017 concerning General Elections, particularly, in the concepts of electoral administrative violations and disputes over the electoral process regulated in Articles 460 and 471 of the Election Law.
Primary and secondary legal materials were the main sources in this research. Furthermore, these materials were analyzed using theoretical and conceptual approaches. Primary legal materials in the form of laws and regulations were examined for coherence by comparing normative rules with existing theories and concepts in state administrative law. In addition
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