Can the President Campaign? Page all

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ADA that draws attention to the statement President Jokowi regarding the election campaign.

When giving a press statement at Halim Perdanakusuma Air Base, East Jakarta, Wednesday (24/1/2024), Jokowi stated, “The president can campaign. The president can take sides. Can. But the most important thing is that during the campaign you must not use state facilities.” (Kompas.com24/1/2024).

An interesting question to answer is whether it is true president are you allowed to participate in the campaign according to election rules (law)?

In Article 7 of the 1945 Constitution, it is stated, “The President and Vice President hold office for five years, and afterward can be re-elected to the same position, for only one term.”

When you understand the meaning of the a quo provision, it actually implies that the president is allowed to campaign.

Article 7 of the 1945 Constitution provides a guarantee that the president may become a presidential candidate (capres) in the subsequent period. Of course, it is easy to understand that if you want to nominate yourself as a presidential candidate in the next period, you will campaign for yourself to be re-elected.

It is impossible, if you want to be elected, for a presidential candidate not to campaign in the General Election (Pilpres).

Thus, logically and juridically, the provisions of Article 7 of the 1945 Constitution implicitly provide the meaning that the President can campaign for himself in the next General Election (Pilpres).

So, can the President campaign for another person (presidential candidate)?

In Law no. 7 of 2017 concerning General Elections (called: Election Law), expressis verbis regulates the permission of the president to carry out a campaign.

Article 299 paragraph (1) of the Election Law states, “The President and Vice President have the right to carry out a campaign.”

Likewise, according to the provisions of Article 280 paragraph (2) of the Election Law, the president is not included in the parties who are prohibited from participating in election campaign activities.

This is different from the chairman of the Supreme Court (MA), chairman of the Constitutional Court (MK), or chairman of the Supreme Audit Agency (BPK), for example, as parties who are prohibited from participating in the election campaign.

As short as the author’s research, in the Election Law, the law makers generally want to differentiate between state officials who come from General Elections (elected officials) with state officials based on appointment (appointed officials).

In general, the Election Law regulates prohibitions against state officials appointed officials to get involved in the campaign.

Those belonging to this category include chairman, deputy chairman, junior chairman, chief justices at the Supreme Court and judges at all judicial bodies below the Supreme Court; constitutional judge at the Constitutional Court; chairman, deputy chairman and members of the Financial Audit Board; governor, senior deputy governor and deputy governor of Bank Indonesia; directors, commissioners, supervisory board and employees of state-owned enterprises/regional-owned enterprises; state officials who are not members of political parties who serve as leaders in non-structural institutions; state civil servants; members of the Indonesian National Army and the Indonesian National Police (Article 280 paragraph (2) of the Election Law).

On the other hand, the Election Law gives powers to national officials elected officials to participate in the campaign.

In this category, for example, the president, vice president, other state officials who have the status of members of political parties, ministers, governors, deputy governors, regents, deputy regents, mayors, deputy mayors (Article 299 paragraphs (1) and (2) , Article 301, Article 302, and Article 303 of the Election Law).

However, the author found inconsistencies and different treatment in the Election Law where village heads and members of village consultative bodies were included in categories that were prohibited from participating in campaigns (Article 280 paragraph (2) letters h and j of the Election Law).

Although theoretically, both positions are positions that originate from elections (elected officials).

The president’s ability to participate in the campaign, however, refers to Article 281 paragraph (1) of the Election Law, is required to fulfill the following conditions: first, not using facilities in his position, except for security facilities for state officials as regulated in the provisions of statutory regulations and second, undergoing leave outside the responsibility of the state.

Apart from that, there are obligations that the president must carry out when campaigning, namely paying attention to the continuity of his state administration duties. This is regulated in Article 300 of the Election Law.

The existence of a prohibition on the use of state facilities by the president in carrying out an election campaign, apart from being regulated in Article 281 paragraph (1) of the Election Law as already stated, is also confirmed in Article 304 paragraph (1) of the Election Law.

If we look at the arrangements, the prohibition on using state facilities, according to the author, is categorized as something that is seriously prohibited. This is because it is confirmed in two articles in the Election Law and stated explicitly in the formulation of its norms.

This explanation also answers the question of whether or not the president may campaign in the election. Thus, normatively, there is nothing wrong with President Jokowi’s statement and is in line with the provisions of the applicable Election Law.

Judicial Election

There is another interesting thing to discuss regarding whether the president is allowed to campaign.
First, how to ensure that the president does not use state facilities when campaigning.

Second, how can the president, when campaigning, still guarantee that the elections will be held honestly and fairly (fairly).

The first question is important to pay attention to, because even though there is a prohibition on the president using state facilities in conducting a campaign – as regulated in Article 281 paragraph (1) and Article 304 paragraph (1) of the Election Law -, there are exceptions where there are still state facilities available can still be used by the president.

Namely state facilities attached to the position regarding security, health and protocol, although given footnotes according to field conditions in a professional and proportional manner (Article 305 paragraph (1) of the Election Law).

As we know, in the Indonesian government system, apart from being the head of state, the president is also the head of government.

In carrying out its duties and authority (called: functions), many security, health and protocol facilities will be used.

It is not easy to separate whether using state facilities like this falls within the qualifications of being prohibited or whether it is something that is excluded (allowed).

The KPU has regulated election campaigns in KPU Regulation (PKPU) no. 15 of 2023 concerning General Election Campaigns, as amended by PKPU No. 20 of 2023.

However, in the PKPU it is not clearly defined and elaborated on which state facilities are prohibited and which are permitted for the president to use in campaigning.

In Article 72A paragraph (1) PKPU No. 20 of 2023 only defines government facilities as places used for administering government within ministries/agencies and regional governments.

Furthermore, Article 72A paragraph (2) elaborates on government facilities including: a. building; b. page; c. field; and/or d. other places.

This provision does not explain at all which state facilities are prohibited and which are permitted by the president in carrying out the campaign.

Meanwhile, the second question needs to be criticized because the president’s position as head of state and head of government could potentially cause disruption to the holding of fair elections.

As head of government, the president holds supreme power over the Army, Navy and Air Force, as stated in Article 10 of the 1945 Constitution.

Also as the highest leader of the Indonesian National Police (Polri), in accordance with Article 8 of Law no. 2 of 2002 concerning the National Police of the Republic of Indonesia (called: Polri Law).

Likewise, the President as the holder of government power is the holder of the highest authority in policy, professional development and Management of the State Civil Apparatus (ASN), as specified in Article 26 paragraph (1) of Law no. 20 of 2023 concerning State Civil Apparatus (called: ASN Law).

If the position and power of the “super power” president is not controlled properly, then the potential for disrupting the neutrality of the President’s “subordinates” is very likely to occur. If so, it will have a negative correlation with efforts to realize fair elections.

The issues above must be our collective homework. In addition to the professionalism of the performance of election organizers, which must be proven, it is also needed political will from the president to prove his integrity in realizing fair elections.

Of course, no less important is the role civil society in taking part in supervising the implementation of elections.

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