Implementation of E-Voting According to the Perspective of Constitutional Law
Suroto
17 Agustus 1945 University, Semarang, Indonesia [email protected]
* corresponding author
I. Introduction
The terminology of a democratic state is a state that gives sovereignty to the people; in general, this principle is known as a government that is run by the people and for the people (Democracy is the government of the people, by the people, and for the people) [4]. Various countries in the world widely use this basic understanding to give birth to a good and ideal government system to create a country based on the law (Rechtstaat), not based on power (machtstaat) [22].
Based on this terminology, a system was born which is expected to be able to represent the principles of democracy, namely the General Election. Legislative and executive institutions [13]. so that with the implementation of the General Election, it can be stated that the performance of a democratic state can be agreed upon [23].
Since its independence, Indonesia has held 12 general elections nationally; namely, the General Elections in 1955, 1971, 1977, 1982, 1987, 1992, 1997, 1999, 2004, 2009, 2014, and 2019 12 election trips are a valuable lesson for Indonesian democracy, because the quality of elections is a reflection of the quality of democracy in a country [18]. Elections that are a medium for converting people's sovereignty must be carried out as well as possible. After 12 rounds of general elections, their implementation still leaves problems that ultimately lead to a reduction in the quality of democracy in Indonesia [5]. According to the facts compiled by Bambang Widjojanto as quoted by Ali Rokhman, election problems are very diverse. In the end, many parties have brought them into law and become a General Election Result Dispute (PHPU) [20].
The implementation of general elections in Indonesia currently uses the mechanism of voters coming directly to the polling station (TPS) to vote conventionally or using ballot papers and then being punched to give them the right to vote following the main principles of the election, namely
ARTICLE INFO A B S T R A C T
Article history:
Received 02 Jan 2022 Revised 19 March 2022 Accepted 08 June 2022
Seeing the implementation of the 2019 General Election, where a lot of sad news became public news, the 2019 Election was given the wrong label by the public. In addition, with the development of information technology (ICT), the results of a general election are also required to be known immediately. E-Voting promises that information on election results can be obtained quickly and in real-time through ICT in sending and counting votes and can minimize bad election results that occurred in 2019, as in the case of vote counting recapitulation. Therefore, this study aims to discuss the application of E-Voting according to the perspective of constitutional law to obtain legal certainty. This research is normative legal research. The results show that implementing elections with E-Voting is better because it will minimize the use of human resources and costs, facilitate vote recapitulation, already has legality through the EIT Law, reduces implementation, and prevents fraud. From the perspective of constitutional law, general elections with e-voting do not violate the principles of elections and the constitution;
where this has been tested through the Constitutional Court with the issuance of the Constitutional Court Decision Number 147/PUU-VII/2009, which was further legitimized into Law Number 10 of 2016 concerning Regional head elections which state that voting for elections can be done by voting through electronic voting equipment.
Copyright © 2017 International Journal of Artificial Intelegence Research.
All rights reserved.
Keywords:
E-Voting General Election Constitutional Law E-KTP
direct, free and confidential [25]. As for the mechanism, it seems that it is good to implement, but conventional elections often result in inaccurate vote count results; it is suspected that multiple voters choose more than one pair of candidates, takes a long time to determine the effects of general elections, uses a lot of human resources (SDM) which is feared to cause casualties due to fatigue during the conventional election process, the difficulty of distributing ballots to remote areas, and the use of a reasonably large budget. This failed to implement the Luber Jurdil election principles regulated by the constitution [16].
Many parties and the public gave a "bad" label to the implementation of the general election in 2019 because of a sad incident that became public news, namely hundreds of election organizers who died and thousands of available election organizers who were sick [27]. Both of these things happened allegedly because the general election organizers were tired of carrying out the process of holding the general election during vote recapitulation [11]. Fatigue in recapitulating votes which was fatal for election management officers, then gave rise to discourses to improve the general election system, one of which was rolling the general election discourse with an electronic system or what was then called electronic elections or e-voting [21]. Regarding electronic polls, as in a statement by the Minister of Home Affairs, Tjahjo Kumolo, it was stated that the government would observe whether it was time to use voting in the general elections in the next five years [2].
In general elections with the E-voting system (Electronic Voting), voters, namely people who have been able to cast their ballots, vote electronically and are expected to be able to fulfill the basic principles of the general election Luber Jurdil [10]. Based on these problems, an idea was born to examine the boundaries of the problem, such as can the application of the E-voting system meet the principles of Direct, General, Free, Confidential, Honest, and Fair elections. And also, this paper will comprehensively review the implementation of E-voting in terms of applying the Luber Jurdil principle [6].
The things that have been described above become the basis for the author to conduct research, study, or review of electronic general elections (e-voting) in the perspective of constitutional law as a legal certainty to realize one aspect of the rule of law in Indonesia, namely the existence of legal certainty. Which can be seen and obtained by every citizen as part of human rights regulated and limited by the Indonesian constitution, the 1945 Constitution is following constitutional law and the principle of legal certainty one of the consequences of realizing the rule of law in Indonesia?
II. Methods
The research method used to describe the implementation of e-voting according to the perspective of constitutional law is a normative juridical research method. Normative research requires statutory and conceptual approaches [17]. This research is expected to be descriptive as Marzuki. The research method used to describe the implementation of e-voting according to the perspective of constitutional law is a normative juridical research method. Normative research requires a statutory and conceptual approach [3].
This study uses data collection techniques document research, and literature study. Document study examines laws and regulations related to the problem. Literature study is a way of collecting data through identifying reference books and mass media such as newspapers, the internet, and other materials relevant to the problem being studied, as well as laws and regulations, books, and archives related to the problem under study. The data is then processed to produce a descriptive analysis.
III. Result and Discussion
A. Election System Electronically Voting (E-Voting)
Electronic voting (from now on abbreviated as e-voting) in the election process is an innovation to speed up the election process, speed up the calculation of vote recapitulation results, and save costs to save time, connection, and shortening distances. The essence of all this is that technology exists to facilitate human work and facilitate government. E-voting is a voting system using technology as a collection medium [9]. E-voting combines technology with the democratic process to make voting more efficient and convenient for voters. Voting allows voters to vote by computer from their homes or at the polling station [28].
From the above understanding, it can be concluded that e-voting is a way for voters to exercise their political rights by using innovation and renewal in the electoral system, which combines technological developments and the basic principles of democracy [14]. The renewal referred to here is in the process of recapitulation, and the media for voting previously used ballots by voting or checking to use a computer and only by clicking on the image of the candidate listed. The primary purpose of the presence of e-voting innovation is to simplify and speed up the vote recapitulation process and the accuracy of election results [12].
Technological developments, supported by the shift from industrial systems to technology, make technology an unavoidable thing in various aspects of life and nation, one of which is its use in the election process [1]. In Era 5.0, the e-voting system can run successfully; due to routines that require speed and data accuracy, electronic lifestyle (lifestyle) has become part of life, so that in everyday life, no activity does not include activities by clicking [26]. Therefore, the primary considerations for implementing e-voting are accuracy and speed. The following are the advantages of e-voting, namely:
a) Minimizing the Use of Human Resources (HR). A large number of human resources has proven not to make the process in the general election effective. Reflecting on the 2019 election left the worst impression on the implementation of the election ever. This is due to the number of officers who fell ill and died.
b) Easy in Vote Counting In E-voting, the voting process is recorded, stored, and processed through technology in the form of digital information. That way, the process can run faster, more precisely, and accurately than the manual counting system by opening the ballot papers and taking notes which takes quite a lot of time and effort.
c) The legality of Electronic Documents Law (UU) Number 11 of 2008 concerning Electronic Information and Transactions (ITE), where in Article 5 it is stated that electronic information and electronic documents or their printed results are legal evidence. This means that, in terms of legality, Electronic documents and all published results in the election with the E-voting mechanism have been recognized as legal documents, can be legally accounted for, and have the exact legality as ballots in general elections.
d) Accessible in the Implementation of General Elections With e-voting, it can eliminate the paradigm of the white group (golput), especially vulnerable voters (such as illiterate or elderly voters). This is in line with a survey conducted by the Indonesian Institute of Sciences (LIPI) regarding implementing the 2019 simultaneous elections. Of 1500 respondents, 74% stated that the 2019 simultaneous general elections made it difficult for voters, and only 24% indicated that they were not difficult. This is due to the merging of the presidential and legislative elections [19].
e) Preventing fraud The e-voting system must be integrated with e-KTP so that fraud in elections by voting more than once will be detected more quickly. India's Election Commission stated that the e-voting system combats problems such as adding to polls at polling stations and stealing ballot boxes. However, it is possible that using e-voting can lead to new fraud that is certainly more sophisticated. However, this can be prevented and overcome using a sophisticated and professional security system.
f) Reducing Costs The implementation of simultaneous elections that were held in 2019 required high costs, which it was used for the cost of establishing Inter-Time Substitutes (PAW). When compared with conventional methods, the costs spent can reach 4 times.
g) Increasing Voter Participation The development of the era, along with the development of information technology, especially in increasing voter participation through e-voting, makes it easier for people to observe the government than the government follows its citizens through cyberspace.
B. Implementation of E-Voting
The e-voting preparation process requires various cross-aspects, including budget readiness, human resources, the superstructure of the use of e-voting in elections, and implementation of the e- voting system; each voter must take several steps, namely:
a) In the first step, the selector goes to the verification terminal. Voters who have been registered with the DPT will display their NIK, name, and photo on the monitor screen because, in the e- KTP, there is already a chip that stores the Population Identification Number; it's just that a witness from the candidate is still needed to confirm whether the person carrying the card is the same as the one having the card. Appears on the screen.
b) Furthermore, when it has been verified, the voter will go to a closed voting booth and have the right to vote. In the voting booth will appear the candidate to be elected. With the emergence of this candidate, voters touch the monitor screen on the candidate's photo. After the candidate's image appears, the "Select" and "Cancel" options will be displayed. If the voter presses "Cancel,"
it will return to the home screen, namely photos of all pairs of candidates; if the voter presses
"Select," then the election process is complete.
c) In the final stage, when the voter has finished voting, the proof of the voter having voted is the issuance of a printout in the form of a receipt, and it can be put into the ballot box as proof of having voted or will be stored when a dispute occurs and then it is opened.
To strengthen transparency and accountability in elections through the e-voting system, a monitor screen will display the percentage of those who have voted and those who have not. This will be shown continuously until the selection is complete. If it is finished, the committee will click the "result" button at the time that has been set, and the result will be seen on the screen who gets the most votes [24].
Compared to the conventional electoral system, you have to go through several stages, such as taking the ballots from the ballot box, opening the franchises, showing them to witnesses, and counting the votes one by one by writing them down in the record of the vote count results. The e- voting system does not allow a voter to vote more than once. This is because, in the data collection process, prospective voters no longer use the traditional approach of sending invitations or registering voters with voters showing their ID cards [7].
Using e-KTP so that the method of marking prospective voters can be precise, efficient, acceptable, efficient, accurate, and accountable. This is used to prevent voters from voting more than once. Usually, if the voter has made another election, there will be a warning or warning that the person concerned has made a choice.
In addition to the above method, the organizers of the e-voting process can also carry out the initial process of voting, namely with registered voters only showing the voter's signature and then logging in using their respective id and password, after which voters select candidates by simply clicking on the options provided by the system. , then the system will calculate the selection digitally. The total calculation is also carried out by design digitally [2].
C. Implementation of E-Voting according to the perspective of constitutional law
Elections in Indonesia have always been a big polemic; after the country experienced the fall of the New Order, the existence of an election supervisory agency was always debated. Because the bureaucracy in Indonesia has been sick from the beginning of independence. The written law source of Indonesian constitutional law is the 1945 Constitution.
Due to the rapid development of technology, election administrators, observers, international organizations, vendors, and standardization bodies are continually updating their methodologies and approaches. Electronic voting solutions, when properly implemented, have the potential to reduce some of the most common types of election fraud, speed up the processing of results, improve accessibility, and make voting more convenient for citizens. Additionally, when utilized over a series of elections, the cost of an election or referendum might potentially be reduced in the long run. This is something that could be a possibility in certain circumstances. Unfortunately, not all projects involving electronic voting are successful in bringing the promises of heaven to fruition in the form of tangible benefits for voters. The technology that is currently available for electronic voting has not been developed to the point where it is problem-free.
The first time that the thought of using electronic voting in elections was given serious consideration was in 2009. It was denoted by the Constitutional Court of the Republic of Ukraine issuing its decision no. 147/PUU-VII/2009 at that time. The decision regarding the constitutionality of Article from the case involving it.
Article 28 C paragraphs (1) and (2) serve as a touchstone in the Constitutional Court's decision,
"Everyone has the right to develop themselves through the fulfillment of their basic needs, the right to education and to benefit from science and technology, arts and culture, to improve the quality of their lives and for the welfare of mankind."
"Everyone has the right to collectively advance himself in fighting for his rights to build his community, nation, and country."
In that decision, the Constitutional Court emphasized two conditions that must be met before electronic voting can take place. These conditions are that electronic voting must not violate the principles of natural, general, free, confidential, honest, and fair voting, and the area that implements electronic voting must be ready in terms of technology, financing, human resources, or equipment that is not equipment soft. The Constitutional Court also emphasized the importance of determining whether or not the residents of the area in question are willing, in addition to meeting any other prerequisites.
The decision rendered by the Constitutional Court has been incorporated into Article 85 in regard to the Pilkada. According to the information presented in the article, voting in elections can be done using electronic voting equipment.
Article 85(1) Voting for Elections can be done by:
a) put a mark once on the ballot; or
b) vote through electronic voting equipment.
In the Election Law, it has not been explicitly regulated related to E-Voting voting. Still, the Constitutional Court's Decision related to E-Voting can be used as a reference or jurisprudence on the Election Law itself, mainly since this has been accommodated in the Pilkada Law. Article 353 of the Election Law requires that elections be conducted based on facilitating voters, accuracy in counting, and efficiency in organizing elections.
Article 353 number (2) Voting, as referred to in paragraph (1), is carried out based on facilitating voters, accuracy in counting votes, and efficiency in the Election Administration.
One of the essential starting points for developing the legal basis for the implementation of e- voting in elections is the Constitutional Court (MK) decision. To follow up on the conclusion of the Constitutional Court (MK) so that e-voting can be implemented in elections and future elections, clear and firm policies, as well as rules and regulations governing the use of e-voting in elections, are needed.
The decision of the Constitutional Court Number 147/PUU-VII/2009 is further legitimized in Law Number 10 of 2016 concerning Regional Head Elections Article 85 Paragraph (1), namely:
voting for elections can be done by:
a) Put a mark once on the ballot; or
b) Vote through electronic voting equipment. Article 85 Paragraph (2) marking once on ballots electronically. Article 85 Paragraph (2) The one-time marking, as referred to in paragraph (1) letter a, is carried out based on the principles of facilitating voters, accuracy in vote counting, and efficiency in election administration;
c) (2a) Voting electronically, as defined in paragraph (1) letter b, is carried out by observing aspects of the readiness of the regional government in terms of infrastructure and community readiness based on the principles of efficiency and ease;
d) (2b) If there is only 1 (one) pair of candidates who register and based on the results of the research, the pair of candidates is declared eligible, the voting for the election as referred to in paragraph (1) is carried out employing voting as referred to in Article 54C paragraph (3). In Law Number 7 of 2017 concerning Elections Article 64 Letter g, only one article regulates electronics in collections and even then in connection with the recapitulation of vote counting results abroad.
The birth of the Constitutional Court Decision illustrates that using the E-voting system in the Pilkada and General Elections is an advancement in the process of Indonesian administration towards the importance of direct, general, free, confidential, honest, and fair principles. And also follows the fundamental rights of every person guaranteed by the 1945 Constitution article 28C
paragraph (1), namely, "Everyone has the right to develop themselves through fulfilling their basic needs, has the right to get an education, and to benefit from science and technology, art, and culture to improve the quality of their life." and for the welfare of humankind." so that from the perspective of the constitution the E-voting system is a system that is not contradictory and effective to create an election that is Luber Jurdil [8].
Implementing elections using the e-voting system mustn't violate the principles of elections in the Indonesian constitution, namely direct, general, accessible, confidential, and honest and fair. It is said to be straightforward because the e-voting system election of each individual directly distributes their voting rights without any obstacles and cannot be represented. It is said to fulfill the general principle because the e-voting system is general for all Indonesian citizens with a residence certificate as an e-KTP. Free because every voter can freely choose in the election, without any intervention from any party. Secret because the election voting system can maintain the confidentiality of the election results. This means that every voter can freely exercise their right to vote without anyone knowing about their choice because it is the voter's right.
Elections with an e-voting system can minimize dishonesty because the potential for fraud contained in the conventional approach was previously believed to be minimized by this electronic system. So the number of fraud in elections can be minimized and can produce general elections that are satisfactory and trusted by the Indonesian people themselves. It is fair because the e-voting system can accommodate everyone with the right to vote. After all, the system is integrated with population center data through e-KTP. So the potential for multiple voters or people not included in the permanent voter list in the conventional method can be appropriately handled.
IV. Conclusion
As one of the implementations of democracy, the general election functions as a filter and filtration for candidate leaders who will later become representatives and voices of citizens in parliamentary and executive institutions. In the 2024 election, it is hoped that the election with E- voting can be carried out and implemented correctly so that the upcoming General Election can take place quickly, precisely, accurately, effectively, and of course, the fulfillment of the principle of Luber Jurdil elections to produce leaders and representatives of the people who run the government.
Following the regulations of Good Government. E-voting will make elections more efficient and take place honestly because of the more advanced systems used to minimize fraud and fairness. All citizens with e-KTP can vote in elections without any more DPT chaos. From the perspective of constitutional law, the implementation of elections using the e-voting system does not violate the principles of elections in the Indonesian constitution, namely direct, general, accessible, confidential, honest, and fair. Based on the Constitutional Court Decision Number 147/PUU- VII/2009, which was further legitimized into Law Number 10 of 2016 concerning Regional Head Elections, it was stated that voting for elections could be done through electronic voting equipment.
References
[1] Alomari, M. K. (2016). E-voting adoption in a developing country. Transforming Government: People, Process and Policy, 10(4), 526-547.
[2] Dewanti, S. C. (2019). Wacana Penggunaan E-Voting Pada Pemilu. Discourse on the Use of E-Voting in General Elections), Info Singkat, XI (10).
[3] Diantha, I. M. P. (2016). Metodologi penelitian hukum normatif dalam justifikasi teori hukum.
Prenada Media.
[4] Epstein, R. A. (2011). Direct Democracy: Government of the People, by the People, and for the People. Harv. JL & Pub. Pol'y, 34, 819.
[5] Fahmi, K. (2016). Prinsip Kedaulatan Rakyat dalam Penentuan Sistem Pemilihan Umum Anggota Legislatif. Jurnal Konstitusi, 7(3), 119-160.
[6] Fajar, M. I., & Fauzin, F. (2019). Sistem E-Voting: Upaya Mewujudkan Pemilu Yang Jujur Dan Adil. Simposium Hukum Indonesia, 1(1), 587-601.
[7] Faqomi, I. S. (2018). Inovasi E-Pilkades Dalam Pemilihan Kepala Desa Di Desa Kandangan Kecamatan Duduk Sampeyan Kabupaten Gresik (Doctoral dissertation, UIN Sunan Ampel Surabaya).
[8] Firmansyah, B. (2018). Implementasi Kebijakan Electronic-Voting (E-Voting) Dalam Pemilihan Kepala Desa Di Kabupaten Pemalang Tahun 2016 (Studi Kasus Pilkades Sistem E- Voting di Desa Ujunggede 2016). Journal of Politic and Government Studies, 8(01), 41-50.
[9] Gibson, J. P., Krimmer, R., Teague, V., & Pomares, J. (2016). A review of e-voting: the past, present and future. Annals of Telecommunications, 71(7), 279-286.
[10] Habibi, M. (2018). Dinamika Implementasi E-Voting di Berbagai Negara. INA-Rxiv Papers.
[11] Ismanu, M. N. (2020). Problematik Rekrutmen Penyelenggara Pemilu di Tingkat TPS (Tempat Pemungutan Suara) Pada Pemilu Serentak 2019: Antara Regulasi dan Implementasi. Jurnal Penelitian Politik, 16(2), 191-207.
[12] Krimmer, R., Triessnig, S., & Volkamer, M. (2007, October). The development of remote e- voting around the world: A review of roads and directions. In International Conference on E- Voting and Identity (pp. 1-15). Springer, Berlin, Heidelberg.
[13] Labolo, M., & Ilham, T. (2015). Partai politik dan sistem pemilihan umum di Indonesia.
Rajawali Pers.
[14] Lauer, T. W. (2004). The risk of e-voting. Electronic Journal of E-government, 2(3), 177-186.
[15] Law Number 11 of 2008 concerning Information and Electronic Transactions (IET)
[16] Mahfud, M. D. (2009). Capaian dan proyeksi kondisi hukum Indonesia. Jurnal Hukum Ius Quia Iustum, 16(3), 291-310.
[17] Mezak, M. H. (2006). Jenis, Metode dan Pendekatan Dalam Penelitian Hukum. Law Review Universitas Pelita Harapan, 5(3).
[18] Mulyono, G. P., & Fatoni, R. (2020). Demokrasi Sebagai Wujud Nilai-Nilai Sila Keempat Pancasila Dalam Pemilihan Umum Daerah di Indonesia. Citizenship Jurnal Pancasila dan Kewarganegaraan, 7(2), 97-107.
[19] Neyman, S. N., Isnaini, M. F., & Nurdiati, S. (2013). Penerapan Sistem E-Voting pada Pemilihan Kepala Daerah di Indonesia (The Application of E-Voting Systems in the Local Elections in Indonesia). Jurnal Sains Terapan, 3(1), 35-49.
[20] Rokhman, A. (2011, July). Prospek dan tantangan penerapan e-voting di indonesia. In Seminar Nasional Peran Negara dan masyarakat dalam Pembangunan Demokrasi dan Masyarakat madani di indonesia (Vol. 7, pp. 1-11).
[21] Siregar, M. (2019). Membaca Hasil Pemilu Indonesia Tahun 2019. An1mage.
[22] Soemarsono, M. (2007). Negara Hukum Indonesia Ditinjau Dari Sudut Teori Tujuan Negara. Jurnal Hukum & Pembangunan, 37(2), 300-322.
[23] Sukriono, D. (2009). Menggagas sistem pemilihan umum di Indonesia. Konstitusi Jurnal, 2(1), 8.
[24] Suleman, Z., Hendarso, Y., Isyanawulan, G., & Adyatma, R. T. (2018). Mekanisme E-Voting dalam Pemilihan Kepala Desa. Jurnal Analisis Sosial Politik, 2(1), 73-83.
[25] Taniady, V., Arafat, B. A. P., & Disemadi, H. S. (2020). Sistem e-voting dalam pemilihan kepala daerah 2020 saat pandemi covid-19: Perbandingan Indonesia, Australia dan Brazil. EKSPOSE: Jurnal Penelitian Hukum Dan Pendidikan, 19(2), 1055-1064.
[26] Tarasov, P., & Tewari, H. (2017). The future of e-voting. IADIS International Journal on Computer Science & Information Systems, 12(2).
[27] Widodo, W. (2018). Pelaksanaan Pemilu Serentak Tahun 2019 Ditinjau Dari Perspektif Politik Dan Hukum. Jurnal Meta-Yuridis, 1(1).
[28] Zafar, C. N., & Pilkjaer, A. (2007). E-Voting in Pakistan (Dissertation). Retrieved from http://urn.kb.se/resolve?urn=urn:nbn:se:ltu:diva-4.
