Executive Director of Saiful Mujani Research Center (SMRC) Djayadi Hanan explaining his statement in the follow-up hearing of the judicial review of Law No. 7/2017 on General Elections (Elections Law) on Tuesday (14/11) at the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

Implementation of the presidential election simultaneously with the legislative elections led to the impossibility of applying legislative elections as a prerequisite for presidential election through the presidential threshold. This was conveyed by the Executive Director of Saiful Mujani Research Center (SMRC) Djayadi Hanan in a follow-up judicial review hearing of the regulation on presidential threshold stipulated in Law No. 7/2017 on General Elections on Tuesday (14/11).

According to Hanan, the reason for the impossibility is that the legislative elections for the current election period have not been implemented, so the result is not yet available. He said there is no way to make legislative elections a prerequisite. "So in that context, there are two errors in the provisions regarding the presidential threshold contained in Law No. 7 of 2017.

"First, placing legislative elections as a prerequisite for presidential election. Secondly, even worse, legislative elections placed as prerequisite are those that occurred in the previous elections, which in terms of political configuration will likely not be the same as the elections that will or is running," said Hanan before the Panel of Justices led by Chief Justice Arief Hidayat.

Furthermore, Hanan explained that the presidential threshold in the simultaneous elections will lead to consequences that are contrary to the constitution. The enactment of the presidential threshold is potentially contradictory to Article 6A paragraph (2) of the 1945 Constitution, which states that the presidential and vice presidential candidates are proposed by political parties or coalitions of political parties participating in the elections prior to the elections. The consequences are for example, Hanan said, a number of political parties who have no seats in the House of Representatives (DPR) or new participants during the current elections period cannot nominate presidential and vice-presidential candidates. "Or they are forced to support the presidential and vice presidential candidates without having the political power to convey their will or aspiration due to their unfamiliar and non-fulfilling positions. There is potential unawareness of electoral participants in this case," he explained.

Hanan also revealed that it is difficult to find empirical examples of the application of presidential threshold in simultaneous elections in countries that embrace the presidential system.

"The United States, the country with the most established presidential system, has no regulation regarding presidential threshold. Countries in Latin America that mostly embrace multiparty presidency system like Indonesia also do not impose presidential threshold in its presidential election. Generally, the presidential and legislative elections in Latin America also take place simultaneously," he said.

Meanwhile, the House, represented by Arsul Sani, explained that Article 222 of the Elections Law is not discriminatory. This is because the provisions on presidential threshold in the a quo article do not limit and restrict the emergence of the nation\'s best individuals. Therefore, Arsul continued, it is not true that setting presidential threshold in the proposal of presidential or vice presidential candidates will reduce and hinder the quality and democracy of cadres of the nation.

"The House believes that the argument of the Petitioners is their own assumptions and interpretations because, in truth, this article neither limits, undermines, nor impedes a person\'s constitutional right to be nominated as a candidate as long as they are proposed by a political party or a coalition of eligible political parties under the terms in the Elections Law," he explained.

The Petitioners from various backgrounds question Article 222 and Article 173 paragraphs (1) and (3) of the Elections Law. The trial was held for five petitions, namely Case No. 44/PUU-XV/2017, 53/PUU-XV/2017, 70/PUU-XV/2017, 71/PUU-XV/ 2017, and 72/PUU-XV/2017. (ARS/LA/Yuniar Widiastuti)