During election campaigns, the incumbent president may participate in campaigns for the presidential candidate who will replace him. In Indonesia, this is regulated in Law Number 7 of 2017 concerning Elections (“Election Law”).

However, if the president participates in the election campaign, there is a potential for the president's attitude to be biased. This can benefit certain presidential candidates. Several election histories have proven this.

In Uruguay, presidential candidate Jose Mujica managed to win the 2009 Uruguayan election with a total vote of 52.4% in the second round after being supported by incumbent president Tabare Vazquez. In the 2016 US election, President Barack Obama's support enabled presidential candidate Hillary Clinton to win a total of 48.2% of the popular vote compared to her opponent, Donald Trump, who won 46.1%.

At the very least, the president's partiality in the election campaign boosts the electability of certain presidential candidates. If the election consists of more than 1 presidential candidate, the president's attitude of taking sides certainly damages the election contest that is taking place.

The Election Law regulates the president's partiality in the election campaign. However, the Election Law regulations still have loopholes. This article discusses these loopholes.

A Right and a Prohibition

The majority opinion states that the president's biased attitude in the election campaign is both a right and a prohibition.

In the context of rights, the president's biased attitude refers to his human right to be involved in elections. The president is an Indonesian citizen who has the right to vote and be elected. This is not regulated in the Election Law, but is regulated in Law Number 39 of 1999 concerning Human Rights (“Human Rights Law”), specifically in Article 43 paragraph (1).

When someone makes a choice, they automatically determine their partiality. With this logic, even though the Human Rights Law does not explicitly regulate whether the right to vote and be elected comes as a package with the right to be partial, the Human Rights Law is still considered to cover both rights. This is the argument supporting the president's right to be partial.

However, the unity between the right to vote and the right to be partial does not apply to Indonesian citizens who have the status of state officials. The reason is that state officials have a “position” that limits their right to determine partiality, including towards presidential candidates in the election campaign.

State officials who side with a presidential candidate are prone to being involved in conflicts of interest. Officials have interests based on their position, while presidential candidates have an interest in winning the election. If an official sides with a certain presidential candidate, it is feared that the official will abuse his position to make the presidential candidate achieve his interests.

This form of abuse of office can arise in various forms, ranging from the use of state equipment for campaign facilities to the issuance of decisions that discriminate against election participants. Essentially, this abuse violates the law and only benefits the supported election participants.

If it is associated with the president's position as a state official, the above reasons become even more relevant. The president holds a position with a high level of power. With that power, he could mobilize all resources to arrange the victory of the presidential candidate he supports.

For this reason, at least in Indonesia, the president is prohibited from taking sides in the election campaign. This is regulated through Article 283 of the Election Law. It is regulated that any form of partiality is prohibited, including meetings, invitations, appeals, calls or giving goods, and applies before, during and after the campaign.

Loopholes in the Rules for a Biased President

In the election campaign, Article 283 of the Election Law does regulate the prohibition for the president to show partiality. However, the president has the right to campaign based on the existence of the right to vote and be elected as regulated in Article 43 paragraph (1) of the Human Rights Law.

The president's right to campaign is regulated in Article 299 of the Election Law. Normatively, this article does not reduce the provisions of Article 283 of the Election Law. As a result, the president can still campaign without showing a biased attitude towards certain election participants.

However, in the previous description, it has been mentioned that the right to vote and be elected applies simultaneously with the right to be partial. For this reason, even if the president claims that he is carrying out a neutral campaign, the potential for him to tend to side with a certain presidential candidate will still exist.

Thus, instead of being a differentiating norm between the right to be partial and the right to campaign, Article 299 of the Election Law actually becomes a norm that has the potential to reach both simultaneously. This article opens a loophole for the president to determine partiality under the guise of exercising his right as a citizen to vote and be elected.

This potential loophole is strengthened by considering 2 things. First, there are no sanctions for presidents who violate the provisions of Article 283 of the Election Law. This is different from ASN or TNI-POLRIstate officials; they can be subject to sanctions according to institutional level regulations.

Second, there is no precedent in Indonesia regarding the imposition of punishment for presidents who take sides in the election campaign. This makes it difficult to file accountability against presidents who are proven to have taken sides, especially in determining the indicators and scope of their partiality.