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Legal counsel Unoto Dwi Yulianto reading the arguments of the petition in the preliminary hearing of the Election Law in the Courtroom of the Constitutional Court on Thursday (12/7). Photo by Humas/Ifa.

The provision on presidential threshold as stipulated in Law No. 7 of 2017 on General Elections was petitioned in the Constitutional Court (MK). The preliminary hearing of case No. 58/PUU-XVI/2018 took place on Thursday (12/7) afternoon. Petitioner Muhammad Dandy felt that his constitutional rights were violated due to the enactment of Article 222 of the Election Law.

Legal counsel Unoto Dwi Yulianto said that the 20-year-old Petitioner was a first-time voter. In the 2014 General Election, the Petitioner could not use his voting right because he had been under 17 years and unmarried.

Unoto argued that the political parties passing the 2014 General Election had not received mandate from first-time voters, who in the 2019 General Elections would vote for the first time, to endorse certain presidential and vice presidential candidates, resulting in the potential loss of constitutional rights of first-time voters to be given multiple choices of leaders.

“The presidential and vice presidential threshold passed into law by the legislators with the mechanism of election based on the results of the previous election is harmful and reducing the constitutional rights of first-time voters in casu including the Petitioner, because the Petitioner never gave a mandate or vote to any political party in the 2014 General Election,” he said.

Unoto said that if political parties used the argument that the political parties resulting from the 2014 Elections represented the voters of the 2014 General Election in endorsing presidential and vice presidential candidates, it affirmed that the political parties resulting from the 2014 Elections undermined the constitutional rights of the Petitioner in the 2019 General Elections to receive equality before the government as stipulated in Article 27 paragraph (1) of the 1945 Constitution.

Unoto added, because the 2019 General Elections would be held simultaneously, legislators would not need to set a presidential threshold by referring to the results of previous general elections. This has the potential to violate the constitutional rights of first-time or millennial voters, especially the Petitioner. 

"The provision on the presidential threshold is against the Constitution because it reduces and limits the Petitioner in obtaining alternative candidates for president and vice president because of the potential for a single candidate," said Unoto. 

He also said that the Election Law stated that a single candidate was not regulated in details and firmly, so that it might cause various consequences and riot if, for example, a single candidate was against a blank column. Moreover, blank column is not clearly stipulated in the General Election Law, contrary to the Regional Election Law. 

"Then, what if the winner is an empty column? What if a re-election is held and the same thing happens? If the empty column wins again, Indonesia will certainly be in the world\'s spotlight in a negative way," he added. 

According to the Petitioner, presidential and vice presidential election must be regarded highly important, so it must be regulated in law, not by regulations of the General Elections Commission (KPU) related to single candidate, as regional head elections governing single candidate versus blank column is regulated in law, not only in KPU regulations (PKPU). The Petitioner believes that the provision on the presidential threshold is not an open legal policy but a closed, even limited one. Thus, it clearly contradicts the provision of Article 6A paragraph (2) of the 1945 Constitution, which only requires nomination of president and vice president by political parties or political party coalitions.

Therefore, the Petitioner requested that the panel of justices declare Article 222 of the Election Law along the phrase "that fulfills the requirement of seats of at least 20% (twenty percent) of the Hosue seats or obtains 25% (twenty five percent) of legitimate votes nationally in the previous House member election" contrary to the 1945 Constitution and not have binding legal force. 

Different Argument 

Deputy Chief Justice Aswanto said that the Constitutional Court had passed decisions on the judicial review of Article 222 of the Election Law. He advised the Petitioner to make a different argument from the previous petitions. “You have a hope that what you requested is granted. If you have such a hope, our hope is so that you build an argument different from what the previous petitioners did,” he said.

Constitutional Justice I Dewa Gede Palguna touched on the Petitioner’s constitutional loss. “Why do you feel your constitutional right is harmed due to the enactment of the law that you mentioned? So, [what] is the logic? Causal verband it will show the constitutional right that is harmed,” he said. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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