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Principal Petitioners Hadar Nafis Gumay and Titi Anggraini in the panel preliminary examination hearing of the judicial review of the Election Law, Tuesday (3/7) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

Once again, the presidential threshold as stipulated in Law No. 7 of 2017 on General Elections is challenged in the Constitutional Court (MK) on Tuesday (3/7/2018) in the Plenary Courtroom of the Constitutional Court. The cases No. 49/PUU-XVI/2018 and 50/PUU-XVI/2018 were filed by democracy activists and individual citizens.

Democracy activists Muhammad Busyro Muqoddas, Hadar Nafis Gumay, Bambang Widjojanto, and partners, the central coordinating executive of Pemuda Muhammadiyah (Islamic dakwah movement for youth), as well as the Association for Elections and Democracy (Perludem) represented by Titi Anggraini challenge Article 222 of the Election Law. In the hearing, Hadar explained that the presidential threshold is basically a "condition" for presidential candidates while the provision delegated by the 1945 Constitution as regulated in Article 6A paragraph (5) is the "procedure" for the election of the president and vice president. "Whereas grammatically, ‘condition’ and ‘procedure’ are different," he explained in a hearing chaired by Constitutional Justice Saldi Isra.

Hadar said that the 25% threshold based on Article 222 of the Election Law clearly added a new restriction, which does not exist in Article 6A paragraph (2) of the 1945 Constitution: the results of votes and seats of "the previous election of House members." It is contrary to Article 6A paragraph (2) of the 1945 Constitution, which only regulates political parties or coalitions of political parties participating in the general elections in accordance with the original intent or formulation of the norm, in accordance with the election in that period.

"Based on the Comprehensive Manuscript of the Amendment to the 1945 Constitution, especially Book V on General Elections, there is no discussion of the original intent related to the presidential threshold requirements. There is no limit on the presidential threshold, especially based on the number of seats and the national legitimate votes of the House member election based on the results of the election five previous years," he said.

Hadar also mentioned the previous Constitutional Court ruling that the article related to the presidential threshold was constitutional because the requirement for presidential candidates was an open legal policy. According to him, the provisions of the law related to the presidential threshold (including Article 222 of the Election Law) are not the application of the concept of open legal policy because the 1945 Constitution clearly provides restrictions on the terms and procedures for the presidential election.

Lastly, Hadar added that Article 222 of the Election Law that bases the calculation of the presidential threshold on the results of the House election 5 (five) years before clearly deprived the people\'s right to renew their five-year mandate. This is because the presidential election is still based on the past election and it is very likely that they are no longer in line with the aspirations of the voters. "Presidential threshold eliminates the essence of presidential election because it has the potential to present a single candidate, and so contradicts Article 6A paragraph (1), paragraph (3), and paragraph (4) of the 1945 Constitution," he explained.

Petitioner of Case No. 50/PUU-XVI/2018 Nugroho Prasetyo through attorney Heriyanto said that he is an individual citizen who would have run for president in 2018. He is the founder of the organizations Front Pembela Rakyat and Garda Indonesia. However, the presidential threshold had restricted his constitutional right to ally with a political party contesting in the 2014 Election even though he had had the opportunity to approach the Beringin Karya (Berkarya) Party, the Indonesian Solidarity Party (PSI), the Change Movement Party of Indonesia (Garuda), and the United Indonesia Party (Perindo) to nominate him as a presidential candidate.

"The Petitioner has great potential to be nominated as a presidential candidate by new parties because [he] has [the backing of] Front Pembela Rakyat (FPR) and Garda Indonesia movements that have been formed in 517 regencies and cities throughout Indonesia. These mass organizations can increase the votes of political parties. New political parties need the Petitioner as a presidential candidate to increase votes in the 2019 elections," he stressed.

Therefore, in his petitum, the Petitioners requested that the constitutional justices annul the enactment of Article 222 of the Election Law regarding the presidential threshold.

Justices’ Advice

Constitutional Justice I Dewa Gede Palguna requested that the Petitioners\' legal standing be revised especially regarding who has the right to represent Perludem and PP Muhammadiyah. "It is necessary to attach formal evidence that the Petitioners do indeed represent the two organizations," he explained.

Justice Palguna asked for a new reason related to the constitutional loss suffered by the Petitioners because a similar case had been decided by the Court. Meanwhile, for case No. 50/PUU-XVI/2018, he requested that the presupposition be removed from the elaboration of legal standing. Constitutional Justice Wahiduddin Adams asked the Petitioner of Case No. 50/PUU-XVI/2018 to revise his legal standing as a taxpayer. (ARS/LA)

Translated by: Yuniar Widiastuti

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