Article 18 Paragraph (4) of the 1945 Constitution of the Republic of Indonesia stipulates that Governors, Regents, and Mayors as heads of provincial, regency and city governments, respectively, are elected democratically. The democratic phrase is then translated by Law No. 1 of 2015 concerning the Election of Governors, Regents, and Mayors, that the filling of regional heads and deputy regional heads is carried out through direct elections by the people or Pilkada.
However, in the midst of the current direct election practice, there will be a vacancy in the position of definitive regional head for quite a long time, even reaching more than 2.5 years. This is a consequence of the provisions of Article 201 paragraph (9) of Law No. 10 of 2016 concerning the second amendment to Law No. 1 of 2015 (Pilkada Law). The article stipulates that to fill the vacant positions of regional heads and deputy regional heads whose terms of office expire in 2022 and 2023, acting governors, acting regents, and acting mayors are appointed until the election of regional heads and deputy regional heads through simultaneous national elections in 2024.
To fill the vacancy of the position of Governor, an acting Governor is appointed from a middle high leadership position. Meanwhile, to fill a vacancy in the position of Regent/Mayor, an acting Regent/Mayor is appointed from a high-ranking pratama leadership position in accordance with the provisions of laws and regulations. Furthermore, the Elucidation of Article 201 paragraph (9) of the Pilkada Law states that the acting regional head has a term of office of 1 (one) year and can be extended for the following year with the same/different person.
The people will be very long absent led by definitive regional heads who are directly elected through regional elections. In fact, if there is a will, the government and the DPR can take a national simultaneous election scheme that does not make the definitive leadership vacancy too long. In practice, lawmakers prefer to schedule national simultaneous elections in November 2024 and eliminate elections in 271 regions that were previously scheduled to be held in 2022 and 2023.
The vacancy of definitive regional heads for a long time is an anomaly of democratic practice. It is not surprising and very reasonable when a number of parties then tested the provision in the Constitutional Court (MK). As of March 2022 alone, there have been three applications testing the provisions of Article 201 of the Pilkada Law.
Urgency of technical regulations
So far, there are no technical regulations governing the filling of acting regional heads that specifically follow up on the provisions of Article 201 of the Pilkada Law. The filling of acting positions is still attached to regulations governing vacancies due to leave or absence of regional heads. Whereas the character is very different. The filling of the acting position as a consequence of Article 201 of the Pilkada Law is not due to a “special or extraordinary event” (which is sudden) such as campaign leave or the absence of the regional head due to legal problems, illness, death, or other permanent disability.
The filling of acting regional heads a la Article 201 of the Pilkada Law is a design made intentionally as a result of not holding regional elections according to the periodic five-year cycle. This choice results in a vacancy in the position of definitive regional head for a very long time. Thus, there is an urgent need to regulate the mechanism or procedure for filling the acting head so that it still reflects the “democratic” character as desired by Article 18 Paragraph (4) of the Constitution.
In this regard, as long as there is no amendment to the Pilkada Law or the issuance of a Constitutional Court Decision canceling it, the Government must immediately issue technical regulations or derivatives that specifically regulate the filling mechanism of the acting as a follow-up to Article 201 of the Pilkada Law. Special regulations in the form of Government Regulations (PP) or Presidential Regulations are needed so that there is a measurable and clear mechanism that the filling of acting positions takes place democratically and does not contain “side” agendas nuanced with pragmatic interests or other practical political mounts. Moreover, this is ahead of the big political battle, the 2024 Simultaneous Elections.
This technical regulation must be issued immediately. This is because in mid-May 2022 alone, there are 5 Governors, 6 Mayors, and 37 Regents who will end their term of office. Among them are the Governors of Banten, West Papua, Bangka Belitung, Gorontalo, and West Sulawesi. These provinces will soon be led by acting leaders until the election of definitive regional heads as a result of the 2024 regional elections. This means that the acting leadership will last for almost three years.
Inevitably, the length of time that regions have been led by acting heads has not only led to discourse about legitimacy, but has also raised speculation regarding efforts to decentralize the filling of regional executives. There are also other problems, namely referring to the regulation of the Regional Government Law, acting regional heads have limitations in making strategic policies in financial, institutional, personnel, and licensing aspects, as well as other strategic policies. Will the length of the term of office and the limitations in executing policies allow the acting head to work effectively and democratically, in accordance with the principles of good governance?
The public needs to be given assurance that the mechanism for filling acting positions will be open, transparent and accountable. As well as not imposing figures that are problematic, incompetent, or contrary to regional aspirations. For this reason, the government must listen to the aspirations of the community and regional stakeholders so that elected officials can work conducively and perform public services without significant obstacles. The mechanism for gathering aspirations can be formulated in an accountable manner by involving experts and practitioners to get the best suggestions. For example, is it possible to provide space for the DPRD to provide input or opinions on behalf of the official who will be appointed by the government?
Special contexts and local wisdom also need to be considered. For example, placing Indigenous Papuans to fill acting positions in the Papua region. This is in line with the regulation of the Papua Special Autonomy Law which gives affirmation to Indigenous Papuans to fill political and public positions in Papua. It is very important to ensure that the acting officer is truly a figure who is considered credible, competent, and acceptable to the region so as to facilitate his work while in office.
TNI/Polri Controversy
The choice of filling the acting position can actually be made simple. For example, if it is not possible to extend the term of office of the definitive regional head, as proposed by several regional government experts such as Prof. Djohermansyah Djohan, then it is also possible to place the Regional Secretary (Sekda) as acting regional head in his region.
Apart from meeting the criteria of rank, the Sekda also relatively does not need to adapt for a long time to the regional bureaucracy and ongoing work programs. If there are concerns that the Secretary is vulnerable to being involved in local political interests, Bawaslu, the State Civil Apparatus Commission (KASN), and the Ministry of Home Affairs can be optimally involved in supervision.
In addition, it is also important to keep in mind that the filling of acting positions must avoid uproar and controversy. Especially considering that they will take office in the midst of the 2024 General and Regional Elections. If there is prolonged uproar or controversy, public services can be disrupted. Stability and preparation for elections and regional elections can also be constrained. Controversies will be vulnerable to being politicized and linked to the interests and political agendas of the contesting elites.
To eliminate the birth of uproar and controversy, the government should not place active TNI / Polri personnel as acting regional heads. This is so that there will be no speculation in the community that will be vulnerable to linking it with efforts to revive the dual function of the TNI / Polri or other similar matters. In addition, the TNI / Polri need to fully concentrate on their duties to ensure state security and public order during the crucial period of the political process of the 2024 Simultaneous General Elections and Pilkada.
The government should focus on filling acting positions that can gain public acceptance and ensure the sustainability of regional development in an inclusive and effective manner. Considering we are still in a pandemic, things that are speculative, controversial, and provoke public rejection, should be avoided and not done. []
TITI ANGGRAINI
Pembina Perkumpulan untuk Pemilu dan Demokrasi (Perludem),
Doctoral Program Student FHUI
This article was published on rumahpemilu.org on March 09, 2022 with the title “Utak Atik Filling Acting Regional Heads”, https://rumahpemilu.org/utak-atik-pengisian-penjabat-kepala-daerah/