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Petitioner Rizal Ramli delivering the subjects of the judicial review petition of the Election Law virtually, Monday (21/9) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—For the 14^th time, the presidential threshold in Article 222 of Law No. 7 of 2017 on General Elections was challenged at the Constitutional Court (MK). The preliminary hearing of case No. 74/PUU-XVIII/2020 was held on Monday, September 21, 2020. Rizal Ramli and Abdulrachim Kresno challenge Article 222, which reads, “A presidential candidate ticket shall be nominated by a political party (or a coalition thereof) contesting in an election that has managed to win at least 20% (twenty percent) of DPR seats or 25% (twenty-five percent) of national valid votes in the previous election of members of the DPR.”

At the hearing presided over by Constitutional Justice Arief Hidayat, Principal Petitioner Rizal Ramli said that the article has raised the candidacy buying phenomenon. He revealed that in the 2009 presidential election, he was courted by several political parties to run for president at the cost of 1.5 trillion rupiah. He said the 20 percent presidential threshold only benefits the wealthy.

“The basis of this criminal democracy is a threshold at 20 percent. This has happened in elections of regents, where [regent candidates] must pay the party 20-40 billion rupiah. For gubernatorial elections, 100 billion. For presidential elections, even higher. Of course, those without money aren’t selected. After elected, they forget their responsibility to the people and submit to the sponsors that have financed them,” he said. He believed the presidential threshold only benefit those in the executive and legislative positions. He also said that the provision restricted talents who have the abilities and integrity to enter the competition.

Four Parties’ Loss

The Petitioners’ attorney Refly Harun said that Article 222 of the Election Law violates Article 6A paragraph (2) of the 1945 Constitution as the latter has given election contesting political parties the constitutional right to nominate a presidential/vice presidential ticket by themselves or other parties.

However, the requirement of 20 percent seats or 25 percent votes in the previous elections (2014) led four parties contesting in the 2019 Elections to lose their nomination right as they hadn’t participated in a previous election and didn’t have seats or votes in the 2014 Elections. Those parties are the Indonesian Solidarity Party (PSI), the United Indonesia Party (Perindo), the Berkarya Party, and the Change Movement Party of Indonesia (Garuda).

“We understand that there have been many petitions regarding this presidential threshold and some were rejected by the Constitutional Court. [Our] new argument is the factual basis post-2019 presidential election. The most argumentative is the loss of constitutional right of four political parties—PSI, the Berkarya Party, PSI, and Perindo, to nominate a presidential/vice presidential candidate pair,” Refly explained.

Election Procedure

Refly added that Article 222 of the Election Law requires a presidential candidate ticket to “be nominated by a political party (or a coalition thereof) contesting in an election that has managed to win at least 20 percent of DPR seats or 25 percent of national valid votes” violates Article 6 paragraph (2), Article 6A paragraph (2), and Article 28D paragraph (1) of the 1945 Constitution. He said the Constitutional Court Decisions No. 51-52-59/PUU-VI/2008 and No. 53/PUU-XV/2017 state that the presidential threshold is the mandate of Article 6 paragraph (5) of the 1945 Constitution. He disagreed with the interpretation as the provision regulates procedure while threshold is a requirement, not a procedure, in the presidential election.

He stressed that the threshold shouldn’t be an open legal policy, but a closed one because the 1945 Constitution stipulates the nomination requirements. Based on the Constitutional Court decisions, a provision is an open legal policy under the conditions that: (1) the norm isn’t formulated explicitly (expressis verbis) in the 1945 Constitution; or (2) the norm is delegated to be further regulated in a law. The presidential threshold provision doesn’t meet these requirements because Article 6A paragraph (2) of the 1945 Constitution clearly regulates the requirements for nominating presidential-vice presidential candidates.

Refly also said that the Constitutional Court in several of its decisions has had a change of mind regarding the validity of the contents of paragraphs, articles and/or sections in laws. For these reasons, the Petitioners requested that the Constitutional Court change its stance in its previous decisions and declare Article 222 of the Election Law unconstitutional and not legally binding.

Justices’ Advice

Constitutional Justices Suhartoyo and Daniel Yusmic P. Foekh offered their advice for the petition revision. Justice Suhartoyo reminded the Petitioners to include the law being petitioned in the elaboration of the Court’s authorities. “It would be error in objecto if the article and law being petitioned is not included,” he said.

He also reminded the Petitioners of the requirements to file a judicial review petition, one of which having their constitutional right violated by the enactment of a law. “(The argument) to build to convince the Court is sufficient evidence that the Petitioners were going to run for president because a contrario, Mr. Refly mentioned four political parties disadvantaged by the a quo provision. Who is more harmed? The two petitioners who are running for president or the four parties? To avoid ambiguity, elaborate [this] in the legal standing section,” he said.

Justice Foekh said that the Court has decided on 13 material review petitions on presidential threshold. He reminded the Petitioners to form arguments that set their petition apart from those previous ones. “To avoid nebis in idem,” he advised.

The justices gave Petitioners 14 workdays to revise the petition and submit it by October 5, 2020 at 10:00 WIB to the Registrar’s Office.

Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 9/23/2020 21:28 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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