Legal Opinion: Indonesia’s Regional Head Elections—Direct vs. Indirect Methods

Pontianak, Thekabarnews.com—In Indonesia, there is a new public debate regarding whether to give the Regional Representatives Council (DPRD) back the power to choose governors, regents, and mayors (Pilkada). 

They claim that this change would make the budget work better, reduce political conflict, and make it easier to pay for expensive direct elections.

But the real issue is more than just how well the government works. The fundamental question is whether indirect regional elections are legal. Furthermore, it asks if they promote or hurt Indonesian democracy at the local level.

From a legal perspective, Article 18, paragraph (4) of the 1945 Constitution of the Republic of Indonesia does not say that regional leaders must be chosen directly. The Constitution only says that governors, regents, and mayors must be chosen “democratically.” This intentionally broad language confers politicians the authority to use laws. They can determine how elections will function.

The Constitutional Court’s role involves interpreting the constitution

The Constitutional Court (MK) has consistently made this issue obvious. Decision No. 072-073/PUU-II/2004 says that the phrase “elected democratically” does not mean “elected directly.” “The Court made it plain that the Constitution does not necessitate direct regional elections; instead, it is a matter of open legal policy.”

The Court made it clear in Decision No. 97/PUU-XI/2013 that Pilkada is part of the larger electoral system but does not fit the concept of a general election in Article 22E of the Constitution. None of these decisions make it obvious that the people must directly elect their regional heads.

Therefore, from a legal perspective, the Constitution still allows indirect elections through the DPRD as long as they are done according to the law. However, just because something is constitutional does not imply the conversation is over. 

Modern constitutional law requires a more comprehensive evaluation that considers democratic substance, political responsibility, and the legitimacy of authority.

Lessons from the Past: Understanding the Historical Context

Prior to the implementation of the direct Pilkada system in 2005, only the DPRD had the authority to nominate regional chiefs. The central government helped the process from Law No. 22/1948 to Law No. 22/1999. It did this by using internal parliamentary methods. 

This method has been criticized in the past for not being open, for letting elite negotiations happen, and for being prone to political corruption.

DPRD typically chose regional leaders based on political bargains, not because they were responsible to the people. Therefore, these problems led to the passing of Law No. 32/2004. This law set up direct local elections as a way to correct things and make democracy more legitimate at the regional level.

Indonesia’s past shows that even if DPRD elections are legal, they likely won’t be valid and will create an oligarchy.

Democratic substance and the sovereignty of the people

In a constitutional democracy, just because you obey the rules in the constitution does not mean the system is democratic. Indeed, democracy is more than just a way of doing things. It demands meaningful public participation and a fair distribution of political power.

Article 1, paragraph (2) of the 1945 Constitution indicates that the people are in charge. We should not interpret sovereignty as something delegated solely to representatives. The people must express it through real participation, such as directly electing regional leaders.

Removing this right could transform popular sovereignty from a tangible political phenomenon into a mere legal concept. Moreover, evidence from the pre-direct election era shows that indirect elections did not eliminate money politics; they merely shifted it from public scrutiny to closed-door negotiations among political elites.

Related topics include governance, legitimacy, and the decline of democracy

Political legitimacy is more than just legal legality. Leaders must also earn social and moral acceptance. Regional chiefs chosen directly by the people carry stronger democratic legitimacy than those selected through limited representative mechanisms.

In practice, a lack of legitimacy often leads people to break the rules, which makes the local government unstable. Going back to indirect elections could make democracy worse, which is even more alarming. 

The people’s post-reform democratic struggle secured the freedom to vote directly for local leaders, clearly demonstrating popular sovereignty.

Taking away this freedom through regular laws would be a bad constitutional example. It would show that direct political participation might be limited for the sake of stability or efficiency.

Conclusion

As a former election official and lawyer, I strongly feel that judging democracy only by how well it obeys the constitution is not enough. Instead, we should evaluate it by the level of public participation, the legitimacy of power, and the degree of public trust in government.

The lawful court has said that indirect Pilkada may be lawful. Nevertheless, from a democratic point of view, it is really detrimental for the legitimacy of regional government and the growth of local democracy.

If reform is what the government really wants, it should work on making elections more fair, cracking down on vote-buying, and better training political leaders. Instead of taking away the people’s right to choose their own regional leaders. 

A healthy democracy isn’t just concerned about how well things work; it also offers its citizens real authority to choose their leaders.

Writer: Ruhermansyah, S.H., C.Med, a lawyer and legal consultant at Ruhermansyah & Partners Law Office. Former Chairman of the West Kalimantan Provincial Election Supervisory Agency (Bawaslu), terms: 2013–2018 and 2018–2023.