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Ruling hearing of the judicial review of the Elections Law, Thursday (12/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) partially granted the judicial review of the provisions of verification of political parties in Law No. 7/2017 on General Elections (Elections Law) on Thursday (11/1). The Court declared the phrase "have been declared" in Article 173 paragraph 1 and Article 173 paragraph 3 of the Elections Law to have no binding legal force.

"Grants the Petitioner\'s petition in part. Grants the Petitioner\'s petition in part. Declares the phrase "has been declared" in Article 173 paragraph (1) of Law No. 7/2017 on General Elections contrary to the 1945 Constitution of the State of the Republic of Indonesia and having no binding legal force. Declares that Article 173 paragraph (3) of Law No. 7/2017 on General Elections contradictory to the 1945 Constitution of the State of the Republic of Indonesia and having no binding legal force," said Chief Justice Arief Hidayat in the presence of the eight other judges.

Partai Islam Damai dan Aman (IDAMAN party), led by Rhoma Irama as the Petitioner, claimed Article 173 paragraph (1) and (3) of the Elections Law discriminative because the provisions give different treatment to old parties and new parties. In other words, the provisions have double standards. According to the Petitioner, with the enactment of these provisions, political parties participating in the 2014 General Elections can directly join the 2019 Elections without any verification process. Meanwhile, new political parties must follow factual verification process to become a participant of the grand event of democracy to take place in 2019.

In the opinion of the Court, Vice Chief Justice of the Constitutional Court Anwar Usman explained that the Court had once decided a case regulating different treatment of political parties participating in the elections although in different laws, namely Article 8 paragraph (1) No. 8/2012 on Elections of Members of the House of Representatives, Regional Representatives Council, and Regional Legislative Council. Decision of the Constitutional Court No. 52/PUU-X/2012 dated August 29, 2012, has stated the norm of Article 8 paragraph (1) of the a quo law contradictory to the 1945 Constitution.

Anwar revealed that based on the consideration in the examination of the provisions of Law 8/2012, which contains different treatment to political parties of candidates for the General Elections, there found guidelines for legislators in determining and applying the requirements to every candidate participating in the General Elections. The guidelines are that the Elections Law should not contain norms that essentially include different treatment of election participants, because different treatment is contrary to the equal right of opportunity in law and government. Then, different treatment to political parties of the candidates of the General Elections may be avoided by requiring every political party to go through verification.

According to the Court, different treatment to election candidates is contrary to the Constitution. This is not only because it is contrary to the right to equal opportunity in government as regulated in Article 27 paragraph (1) and Article 28D paragraph (3) of the 1945 Constitution, but also because different treatment becomes the cause of election injustice.

"That in order to ensure that there is no different treatment for each candidate in the Elections, there are two possible ways that can be reached as stated in the a quo Decision, the Court has determined how, that is by verifying all political parties participating in the 2014 elections. Meanwhile, legislators of the Election Law, in formulating Article 173 paragraph (3) of the Elections Law, actually give different treatment to political parties that have seats in the House of Representatives based on the results of the 2014 Elections," said Anwar reading the Decision No. 53/PUU-XV/2017.

Political Parties Must Be Verified

Anwar continued that even in the Decision of the Constitutional Court No. 52/PUU-X/2012, the Court declared the verification to be conducted on all political parties of 2014 election candidates, but in order to avoid the different treatment of political parties to participate in the 2019 elections, the consideration is also relevant and must be applied to every political party participating in the 2019 elections. In fact, not only for the 2019 elections, but also for the future elections of members of the House of Representatives and the Regional Legislative Council.

"Another fundamental reason for maintaining verification is to limit the number of political parties participating in the General Elections. Within reasonable reasoning, if in any elections no verification is applied to the political parties participating in the General Elections, the number of political parties will tend to continue to grow," said Anwar.

In addition, Anwar stated that when associated with the Decision of the Constitutional Court No. 52/PUU-X/2012, Article 173 paragraph (3) of the Elections Law clearly revives the norm in Article 8 paragraph (1) of Law 8/2012 that has been declared unconstitutional by the Court through the a quo Constitutional Court Decision. Legislators has no more constitutional reasons to revive the norm or substance of Law 8/2012 that has been declared unconstitutional by the Decision of the Constitutional Court No. 52/PUU-X/2012. A norm of law is declared contradictory to the 1945 Constitution by the Court is due to its content or substance.

"Based on the earlier explanation, the Petitioner’s argument that the phrase "has been declared" in Article 173 paragraph (1) and all the norms in Article 173 paragraph (3) of the Elections Law is contradictory to the 1945 Constitution and has no binding legal force is reasonable according to law," Anwar said.

Legislators’ Policies

In this case, the Petitioner also reviewed Article 222 on Presidential Threshold (PT) related to the proposition of president and vice president, which requires a seat of at least 20% (twenty percent) of the total seats of the House or 25% (twenty five percent) of valid national votes in the previous House of Representatives election. With regard to the Petitioner’s argument for Article 222 of the Elections Law, the Court declared it unreasonable under the law.

Constitutional Justice I Dewa Gede Palguna, who read the opinion of the Court explained that in relation to the Petitioner\'s argument that the provisions were manipulation and political tug-of-war (between the parties supporting the government, opposition parties, and the government), the Court is not authorized to assess the political practice and dynamics. Justice Palguna explained that the Court has no authority to evaluate the lawmaking process as long as the procedure does not conflict with the procedures specified in the 1945 Constitution, particularly those regulated in Article 20 paragraphs (2), (3), (4), and paragraph (5) of the 1945 Constitution.

Meanwhile, about the Petitioner’s argument that the provision of presidential threshold in Article 222 of the Elections Law is contradictory to the logic of the simultaneity of the 2019 General Elections, the Court in Decision of the Constitutional Court No. 51-52-59/PUU-VI/2008 dated February 18, 2009 had confirmed that the determination of the minimum threshold of vote acquisition of a political party (or a coalition of political parties) to be able to nominate a candidate for president and vice president is the policy of the legislators.

"Therefore, the Court has actually stated its stance regarding presidential threshold or minimum voting requirement of political parties (or coalition of political parties) to be able to propose candidate pairs of president and vice president," Justice Palguna said.

Dissenting Opinions

On the decision, two constitutional justices—Justices Saldi Isra and Suhartoyo—had dissenting opinions regarding the review of Article 222 of the Elections Law. Both considered threshold in nominating a potential president and vice president sever one of the functions of a political party, namely to provide and select future leaders. Justice Saldi who read the dissenting opinions revealed that in a presidential threshold regime, the public would not have the opportunity to know and assess the candidate leaders of the nation proposed by the political parties participating in the elections.

"By allowing all political parties participating in the elections to nominate candidates for president (and vice president), the public can see the availability of future leaders. In addition, the public is also provided with diverse options for the highest leaders in the executive ranks," Justice Saldi explained.

No less important, he continued, considering the previous situation especially after the Presidential (and Vice Presidential 2014) Election, removed the threshold, the number of presidential (and vice presidential) candidates will potentially be higher than that in the 2014 election. With more and more diverse candidates, the tensions in society can be reduced by the availability of many options in the 2019 Presidential (and Vice Presidential) Election.

"Above all, with the implementation of presidential (and vice presidential) elections simultaneously with parliamentary elections, the legislators have lost the basis of constitutional argumentation to continue to maintain presidential threshold that has been practiced since the 2004 elections," Justice Saldi said.

For the Constitutional Court itself, Justice Saldi continued, as an institution whose spirit of formation intends to protect the constitutional rights of citizens, with the combination of presidential (and vice presidential) election and the legislative (DPR) election, the Constitutional Court must also abandon the view that has so far justified the threshold.

"That due to the above considerations and considering the reasons for constitutional review submitted by the Petitioner to declare Article 222 of the Elections Law stating "The presidential and/or vice presidential candidate pairs shall be nominated by the eligible political that have at least 20 percent of the total seats of the House of Representatives or 25 percent of the national valid votes in the previous House election" unconstitutional and having no binding force as per the Petitioner’s petition is lawful and the Constitutional Court should have granted the a quo petition," Justice Saldi said.

Similar cases were also filed by the other Petitioners, namely Gerindra politician Habiburokhman (No. 44/PUU-XV/2016), political communication expert Efendy Ghazali (No. 59/PUU-XV/2017), the Indonesian Solidarity Party (PSI) (No. 60/PUU-XV/2017), the United Indonesia Party (Perindo) (No. 62/PUU-XV/2017), the Indonesian Employers and Workers Party (No. 67/PUU-XV/2017), the Crescent Star Party (PBB) (No. 70/PUU-XV/2017), Perludem etc. (No. 71/PUU-XV/2017), Mas Soeroso (No. 72/PUU-XV/2017), and Partai Pekerja Indonesia (PIKA) (No.  73/PUU-XV/2017). All of the cases were denied by the Constitutional Court because they are mutatis mutandis (the substances of the petitions had been decided before) with Decision No. 53/PUU-XV/2017.

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