Debating the Electoral Threshold in the General Elections Law

The Constitutional Court conducted judicial review of Law No. 12 Year 2003 regarding General Elections of Members of the People’s Legislative Assembly (DPR), the Regional Representative Council (DPD), the Regional Legislative Assembly (DPRD) (the General Election Law) against the 1945 Constitution, on Tuesday (4/9), scheduled for Hearing the Statements of the Government, DPR and Experts presented by the Petitioners.


The petition of case No. 16/PUU-V/2007 was filed by 13 political parties, among others, the Regional United Party (PPD), the New Indonesian Alliance Party (PPIB), the Reform Star Party (PBR), the Prosperous Peace Party (PDS), the Crescent Star Party (PBB), the Indonesian Justice and Unity Party (PKPI), the National Democratic Unity Party (PPDK), the National Freedom Bull Party (PNBK), the Vanguard Party (PP), the Indonesian Democratic Vanguard Party (PPDI), the Democratic Social Labor Party (PBSD), the United Indonesian Party (PSI), and the Concern for the Nation Functional Party (PKPB).


Whereas with the application of the electoral threshold provision in Article 9 Paragraph (1) and Paragraph (2) of the General Elections Law, the Petitioners in this case deem that their constitutional rights have been impaired because they can not participate in the upcoming 2009 Elections, since in the last 2004 Elections, they obtained the average votes of less than 3% of the total number of seats of DPR members. In their petition, the Petitioners also explain that their main objective in establishing political parties has been to be able to participate in the next elections.


For that purpose, in the statement of claims (petitum), the Petitioners request the Panel of the Constitutional Court Justices to declare Article 9 Paragraph (1) and Paragraph (2) of the General Election Law contradictory to Article 27 Paragraph (1), Article 28A, Article 28C, Article 28D, Article 28G, and Article 28I of the 1945 Constitution, as well as to declare that Article 9 Paragraph (1) and Paragraph (2) the General Election Law shall have no binding legal effect.


In its statement read aloud by Ramli Hutabarat, Expert Staff of the Minister of Law and Human Rights of the Republic of Indonesia, the government states that the General Election Law has been created as an effort to simplify parties. “This simplification shall not be immediately interpreted as a discriminatory limitation because it has been based on the considerations of ethnicities, religions, races as well as languages as set forth in the Human Rights Law,” said Ramli.


In tune with the Government, the Attorney-in-Fact of the People’s legislative Assembly of the Republic of Indonesia (DPR RI), Nursyahbani Katjasungkana, stated that during its history, Indonesia has once applied the multiparty system. However, the system was, continued Nursyahbani, not compatible with the presidential state system. ”For that purpose, efforts need to be made to gradually make simplification of political parties through this law,” said Nursyahbani.


Whereas the Principal Petitioner, Adi Masardi, stated that in principle, it is impossible for these small parties to merge themselves into or to join big parties because they have different platform. Adi gave an example that it is impossible for the Prosperous Peace Party (PDS) which upholds certain Christian values to join the Crescent Star Party (PBB) striving for the Piagam Jakarta values.


Meanwhile, Expert presented by the Petitioners, Indra J. Piliang explained that so far there have been no such electoral threshold provisions in other countries. ”The existing electoral threshold, as applied in Germany or example, is parliamentary threshold with the purpose of limiting the presence of political parties in the parliament without eliminating the rights of political parties to participate in elections,” said this observer as well as expert in political science.


Indra continued that the simplification of the multiparty system can be sought by other ways such as by using the open proportional system in elections or by narrowing the electoral districts. ”We need political parties that can be strongly embedded in the community. The existence of electoral threshold has in fact impeded it,” explained Indra.


In response to the foregoing expert statement, Ramli Hutabarat was consistent with his opinion that the operation of a democratic system can be separated from the restrictions in the form of legislations. ”Absence of restriction will in fact trap us in political liberalization,” said Ramli.


Meanwhile, in response to the question of the Panel of Constitutional Court Justices as to which is better between the electoral threshold system and the parliamentary threshold system, Indra J. Piliang answered that both systems are not suitable to be applied in Indonesia because Indonesia has an extremely plural political life just like its social condition of the people, such that all political aspirations, majority or minority, are made in such a way that the state can accommodate them. However, although both systems are considered unsuitable, Indra did not explain which electoral system is better for political parties other than the abovementioned two systems. (Wiwik Budi Wasito)

Tuesday, September 11, 2007 | 12:36 WIB 251
  • Budi Wibowo Halim (Pemohon) menyampaikan pokok-pokok perbaikan atas permohonan Perkara Nomor 117/PUU-XXI/2023. Foto Humas/Ifa

    Image 1
  • Majelis Sidang Panel yang di ketuai oleh Hakim Konstitusi Enny Nurbaningsih. Foto Humas/Fauzan

    Image 2