Open Proportional System in Election Challenged

Constitutional Justice Saldi Isra chairing the judicial review hearing for the Election Law for case No. 114/PUU-XX/2022, Wednesday (11/23/2022). Photo by MKRI/Panji.

Wednesday, November 23, 2022 | 21:26 WIB

JAKARTA (MKRI) — The provision on the election system as regulated in Law No. 7 of 2017 on General Elections was challenged materially to the Constitutional Court (MK). Two political party members—Demas Brian Wicaksono (an executive of the Indonesian Democratic Party of Struggle (PDI-P)), Yuwono Pintadi (a member of the National Democratic Party (Nasdem))—and four individual citizens—Fahrurrozi, Ibnu Rachman Jaya, Riyanto, and Nono Marijono—filed the petition No. 114/PUU-XX/2022. They challenged Article 386 paragraph (2) letter b, Article 420 letters c and d, Article 422, Article 424 paragraph (2), and Article 426 paragraph (3) of the Election Law. The Petitioners’ legal counsel Sururudin conveyed the petition at the preliminary hearing on Wednesday, November 23, 2022.

The Petitioners argued that the norms, relating to the proportional representation based on majority votes has been misused by popular pragmatic electoral candidates without ideological connection, political party affiliation, and experience in managing any political party organization or socio-politics-based organizations. As a result, when elected as members of the House of Representatives (DPR) or the Regional Legislative Council (DPRD), they tend to act for their own interest instead of representing their part. As such, there should be a party authority that determines who is eligible to become a party representative in parliament after attending political training.

In addition, the Petitioners asserted, the a quo articles have cultivated individualism among politicians, resulting in internal conflicts within the parties. This is because the proportional representation is seen to have resulted in political liberalism or free competition that prioritizes individual victory in elections. This competition should instead exist among political parties because election participants are affiliated with political parties, not individuals, as stated in Article 22E paragraph (3) of the 1945 Constitution.

“The proportional representation with majority votes will weaken the party system. In practice, legislative candidates elected in elections based on the majority vote system do not show respect for the party institutions, instead lack loyalty to political parties and do not follow the command line of the political party. This will result in a political party institutional crisis in the nation and state,” Sururudin explained at the hearing chaired by Constitutional Justice Saldi Isra.

Costs Excessive

Sururudin also argued that the Petitioners were harmed because these articles regulated the system for determining elected candidates based on the majority votes because it had made elections costs excessive and led to complex issues, such as unhealthy competition between candidates because it encourages candidates to commit fraud by bribing election organizers. Therefore, he added, if those articles were annulled, it would reduce vote buying and lead to clean, honest, and fair elections. In addition, the proportional representation based on majority votes is costly and hurt the state budget, for example for the printing of ballots for the election of the House, provincial and regency/city DPRD.

“The proportional representation is based on the Constitutional Court Decision No. 22-24/PUU-VI/2008 dated December 23, 2008. The decision applied a double standard on the order of priority and the majority votes, so the Court decided to grant the a quo [petition]. In the history of elections in Indonesia, before Law No. 10 of 2008 on General Elections was enacted, the proportional election system was used where voters only voted for political parties because, based on the 1945 Constitution, legislative election contestants were political parties, who then appointed their members to sit in the House and provincial/regency/city DPRD. Therefore, under the abovementioned reasons, we request that the Constitutional Court grant the Petitioners’ petition in its entirety,” Sururudin said.

The Petitioners also requested in their petitum that the Court declare the word ‘open’ in Article 168 paragraph (2) of the Election Law unconstitutional and not legally binding.

“[The Petitioners request that the Court] declare the [word] ‘proportional’ in Article 168 paragraph (2) of Law No. 7 of 2017 on General Elections contrary to the 1945 Constitution of the Republic of Indonesia and not legally binding as long as it is not interpreted as ‘the closed proportional system,’” he added.

Justices’ Advice

Constitutional Justice Arief Hidayat suggested that the Petitioners describe their legal standing, especially factual and concrete loss of their constitutional rights, because they only explained philosophical losses due to the implementation of the Election Law.

“In addition, the Petitioners can also make a comparison matrix of open and closed election systems, for example, are high costs, the emergence of liberalists, party sovereignty, and so on. It can be explained more clearly in the revised petition,” he said.

Next, Constitutional Justice Wahiduddin Adams asked the Petitioners—six Indonesian citizens—the losses they had suffered from the application of the norms being petitioned. “What are the impacts of these norms on the Petitioners, so the constitutional losses are visible,” he said.

Meanwhile, Constitutional Justice Saldi Isra asked the Petitioners to build arguments about the absence of an electoral system in the Constitution, which might lead to an open law policy. The Petitioners must explain the reasons for the open and closed proportional system so that the Court feels the need to make a decision. “Look for an argument for this open and closed proportional system to see the implications,” he said.

Before concluding the hearing, Justice Saldi informed the Petitioners that they could revise the petition until before Tuesday, 6 December 2022 at 10:00 WIB and they will be notified of the next hearing’s schedule by the Registrar’s Office at a later date.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/28/2022 10:03 WIB

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

Wednesday, November 23, 2022 | 21:26 WIB 369
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