The Constitutional Court held a judicial review of Law Number 12 Year 2003 on the General Election of the members of the People’s Legislative Assembly, the Regional Representative Council and the Regional People’s Legislative Assembly (the General Election Law) against the 1945 Constitution on Tuesday (3/7). This hearing was scheduled for preliminary examination.

The petition with the case number 16/PUU-V/2007 was filed by the United Regional Party (PPD), the New Indonesian Assembly Party (PPIB), the Star Reform Party, the Prosperous Peace Party, the Crescent Star Party, Indonesian Justice and Unity Party (PKPI), the United Democratic Nationhood Party (PPDK), the Freedom Bull National Party (PNBK), the Vanguard Party (PP), the Indonesian Democratic Vanguard Party (PPDI), the Democratic Social Labor Party (PBSD), the Indonesian Association Party (PSI), and the Concern for the Nation Functional Party (PKPB).

In the petitum, the Petitioners requested the Panel of Constitutional Justices to declare Article 9 Paragraph (1) and Article (2) of the General Election Law contradictory to Article 6A Paragraph (2), Article 22E Paragraph (3), Article 27 Paragraph (1), Article 28, Article 28C, Article 28D, Article 28E, Article 28H, and Article 28I of the 1945 Constitution as well as to declare that those articles do not have any binding legal force.

The attorney Syaiful Ahmad explained that by the coming into effect of the electoral threshold provision in Article 9 Paragraph (1) and Paragraph (2) of the General Election Law, the petitioners of this case felt that their constitutional rights have been impaired as they cannot be nominated in the next 2009 General Election because in the 2004 General Election, this parties have acquired the average number of votes being less than 3% of the number of seats in the House.

Article 9 of the General Election Law states: (1) In order to participate in subsequent elections a Participating Political Party has to: a. obtain at least 3% (three percent) of the number of seats in the DPR; b. obtain at least 4% (four percent) of the number of seats in the People’s Legislative Assembly (Level 1 Region) throughout at least ½ (one half) of the total number of provinces in Indonesia; or c. obtain at least 4% (four percent) of the number of seats in the People’s Legislative Assembly (Level II Region) throughout at least ½ (one half) of the total number of regencies/cities in Indonesia.

(2) A Participating Political Party which does not meet the requirements as referred to in paragraph (1) shall not be allowed to participate in subsequent elections unless such Participating Political Party: a. coalesces with another political party which meets the requirements as referred to in paragraph (1); b. coalesces with another Participating Political Party which does not meet the requirements as referred to in paragraph (1) to form a new political party under the name and symbol of either one of such political parties, thus obtaining the minimum required number of seats; or c. coalesces with another Participating Political Party which does not meet the requirements as referred to in paragraph (1) to form a new political party under a new name and symbol, thus obtaining the minimum required number of seats.

In the petition, the Petitioners also explained that their main purpose in establishing a political party is to participate in the next elections. With their participation in the election, they expect to be able to put their representatives in the legislative institutions to strive for the Petitioners’ rights collectively and to decide the direction of the public policies to build the society, nation, and state.

In the hearing, the Chairperson of the Panel of Justices Prof. Abdul Mukthie Fadjar S.H., M.S. raised a question about the fact that previously the Petitioners decided to obey the General Election Law. “It should not go so far as to let the citizens consider the Petitioners to be irresponsible since in the beginning the Petitioners complied with the provision on age limitation but then asked the Constitutional Court to abolish the provision after being impaired by the limitation,” described Constitutional Justice H. Achmad Roestandi, S.H. following Mukthie Fadjar question.

Answering the question, Syaiful explained that when the 2004 General Election was held, the Petitioners had not have a strong legal standing to file a petition because their constitutional rights had not been impaired. “Aside from that, the general election should be followed not only by the parties having majority voters. The parties with minority constituents should also be given the same opportunity to participate in the general election provided that they meet the formal requirements,” Syaiful said.

The attorney Dr. A. Muhammad Asrun, S.H., M.H., also added that these 13 political parties also have loyal voters in the community. “Therefore, we filed this petition for the sake of the interest of these political parties and also to exercise our constitutional rights,” Asrun said. Before adjourning the hearing, Mukthie Fadjar asked the Petitioners to elaborate and describe their legal standing as legal entities because in the petition, the Petitioners have positioned themselves as legal entities not as individuals. “The Petitioners cannot simply take the constitutional rights of individuals provided for in the constitution to be the constitutional rights of legal entities although there are some similarities between individual rights and those of a legal entity,” Mukthie described.

The Panel of Justices gave 14-day maximum period for the Petitioners to revise their petition. (Wiwik Budi Wasito)