Constitutional Justice Saldi Isra at the ruling hearing of the judicial review of Law No. 7 of 2017 on General Elections, Tuesday (12/20/2022). Photo by MKRI/Ifa.

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Tuesday, December 20, 2022 | 19:56 WIB

JAKARTA (MKRI) — The provision on the determination of electoral districts and seat allocation as referred to in Article 187 paragraph (5) and Article 189 paragraph (5) of Law No. 7 of 2017 on General Elections (Election Law) was declared conditionally unconstitutional. The Decision No. 80/PUU-XX/2022, petitioned by the Association for Elections and Democracy (Perludem), was read out on Tuesday, December 20, 2022 in the plenary courtroom.

“[The Court] grants the Petitioner’s petition in part; declare Article 187 paragraph (5) of the Election Law unconstitutional and not legally binding if not interpreted ‘Electoral districts, as mentioned in paragraph (1), and available seats allocated to each district in an election of members of the DPR as mentioned in paragraph (2) shall be regulated in a KPU regulation,’” said Chief Justice Anwar Usman reading out the verdict.

The Court also ruled Article 189 paragraph (5) unconstitutional and not legally binding if not interpreted “Electoral district, as mentioned in paragraph (1), and the number of available seats for each district for an election of members of Provincial DPRD as mentioned in paragraph (2) shall be regulated in a KPU regulation” and declared Appendices III and IV of the Election Law unconstitutional and not legally binding.

Electoral Redistricting Part of Election Stage

In the legal considerations presented by Constitutional Justice Saldi Isra, the Court asserted that according to Article 167 paragraph (4) of the Election Law, the determination of electoral districts is one of the eleven stages of general election. In line with that, normatively, the Election Law regulates the implementation of all stages of the general election, which is the KPU’s (General Elections Commission) duty. This arrangement is a logical consequence of Article 22E paragraph (5) of the 1945 Constitution. Article 12 letter d of the Election Law states, “KPU shall bear the following tasks: coordinating, conducting, controlling, and monitoring the conduct of every stage of an election.”

“If Article 167 paragraph (4) and Article 12 of Law No. 7 of 2017 are read systematically, [it] is simply understood ‘the implementation of the general election stages in the form of electoral redistricting is the task of the KPU as the general election organizer.’ When an electoral district is determined as part of a law, it means the legislatures has taken a role in redistricting. In fact, it is a stage of general elections, which is within the KPU’s jurisdiction,” Justice Saldi said.

He added that as long as the determination of electoral districts becomes part of the appendices to the law, the KPU would lose its significant role in electoral redistricting. However, with the regulation of electoral districts stated in the appendices to the law, it is no longer part of the KPU’s jurisdiction. This reality shows that there is a contradictio in terminis between the norms governing the determination of electoral districts and the KPU’s authority to determine electoral districts with provisions governing electoral districts and the inclusion of electoral districts for members of the House and provincial DPRD. This condition is certainly not in line with the mandate of Article 28D paragraph (1) of the 1945 Constitution, which demands guarantee of legal certainty for matters adopted in laws.

Left to KPU Regulation

Justice Saldi also explained that, in order to maintain fairness in general elections as mandated by Article 22E paragraph (1) of the 1945 Constitution and to end legal uncertainty that arose due to norms that are not in sync with one another on the determination of electoral districts in the General Election Law, details of the distribution of electoral districts and seat allocations must be removed from the appendices to the Election Law and be left to the KPU through a regulation. This will be in line with the KPU’s framework and the general election stages regulated by the Election Law.

“That is, by leaving the task of electoral redistricting in casu determining electoral districts and seat allocation in each electoral district, both for members of the House and provincial DPRD, all potential conflicts between Law No. 7 of 2017 and the 1945 Constitution due to legal uncertainty will be answered and will cease,” he said.

Justice Saldi added that the Election Law had sufficiently regulated the principles for determining electoral districts, the minimum and maximum number of seats for each electoral district, as well as the total number of seats for the House and DPRD. Meanwhile, he added, the details on the distribution should be submitted to the KPU to be regulated through a regulation in accordance with Article 167 paragraph (8) of Law No. 7 of 2017, which stipulates that further provisions on the details of general elections are regulated in KPU regulations.

“By leaving this to the KPU, it will be easier and quicker to make changes to the number of residents that form the basis for electoral redistricting and to make adjustments without having to change the law. This choice is more appropriate to avoid or overcome the issue of legal uncertainty due to the inclusion of details on electoral districts in the appendices to the law,” he said.

However, Justice Saldi added, the most important thing in drafting said regulation is for the KPU to consult with the House and the Government. Relating to Article 22E paragraph (5) of the 1945 Constitution, which reads, “General election shall be held by a general election commission which is national, permanent, and independent in nature,” leaving the task of electoral redistricting to the KPU, including those of the House and provincial DPRD, can maintain the quality of general elections. As such, maintaining the KPU’s duties in all election stages is part of the effort to maintain the independence of general elections.

“Because when other parties participate in determining the stages, there is possibility of a conflict of interest. This conflict is very easy to trace from the policy of electoral redistricting, especially the electoral districts for members of the DPR. What’s more, in the development of electoral redistricting, it was discovered that some regions have distribution disproportionate of the number of seats in the DPR or an imbalance of the number of residents compared to the number of seats allocated to the DPR. Therefore, factually, some provinces have greater representation or allocation of seats in the DPR than the population (overrepresented) while others have less representation or allocation of seats in the DPR than the population (underrepresented,” he explained.

Justice Saldi asserted that if this fact was not corrected, the determination of the number of seats would even be further away from the description in the legal considerations, so for Article 187 paragraph (5) and Article 189 paragraph (5) of the Election Law in Appendices III and IV on the redistricting regulation for the election of DPR and provincial DPRD so as not to conflict with Article 1 paragraph (2), Article 1 paragraph (3), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution and for the sake of honest and fair elections, the Court had no choice but to state that the electoral districts and the number of seats in each electoral district, including those for the DPR and provincial DPRD, are regulated in KPU regulations as contained in the a quo ruling.

“Because the determination of electoral districts and seat allocations are regulated in KPU regulations, the implication is that Appendix III to Law No. 7 of 2017, which determines the electoral districts for members of DPR, and Appendix IV to Law No. 7 of 2017, which determines the electoral districts for members of the provincial DPRD, must be declared unconstitutional and not legally binding. Thus, the Petitioner’s arguments that Article 187 paragraph (5) and Article 189 paragraph (5) of Law No. 7 of 2017 including Appendix III and Appendix IV of Law No. 7 of 2017 are contradictory to the people’s sovereignty, the principle of a rule of law, the principles of general election, and fair legal certainty is legally grounded,” Justice Saldi said.

Also read:

Perludem Questions Provision on Electoral Districts of New Autonomous Regions in Election Law

Perludem Explains Their Legal Standing in Case Against Election Law

Experts Agree on Electoral Redistricting by KPU

Stipulation of Legislative Members’ Electoral Districts Follow Principles in Election Law

In the petition, the Petitioner argued that the preparation of electoral districts must fulfill the principles of people’s sovereignty and direct, public, free, confidential, honest, and fair elections. The Petitioner believed general elections are a means to embody popular sovereignty as enshrined in Article 1 paragraph (2) of the 1945 Constitution. Therefore, the preparation of electoral districts is one of the important stages at the beginning of the process of general elections. This is to ensure that representation be carried out through general elections in accordance with the principles of honest, fair, proportional, and democratic elections.

They also asserted that the preparation of electoral districts was contrary to the principles and allocation of seats for the House of Representatives (DPR) and the Provincial Regional Legislative Council (DPRD) as regulated in those norms. The main principles are equality of votes, adherence to a proportional electoral system, restriction of seat reallocation, and the formation of new electoral districts for the House and DPRD election in the New Autonomous Region. This norm regulates the number of seats and regional boundaries in an electoral district of the House election in Appendix III, but does not regulate the mechanism for forming electoral districts for new autonomous regions.

Therefore, in the petitum, the Petitioner requested that the Court grant the entire petition; declare Article 187 paragraph (1) of the Election Law unconstitutional if not interpreted as “An electoral district in an election of members of the DPR shall be a province, a regency/city, or a combination thereof whose formation was based on the provision of Article 185;” declare Article 187 paragraph (5) of the Election Law unconstitutional if not interpreted as “Electoral districts, as mentioned in paragraph (1), and available seats allocated to each district in an election of members of the DPR as mentioned in paragraph (2) shall be described in further detail by Attachment III, an inseparable part of this law” unconstitutional if not interpreted as “An electoral district as referred to in paragraph (1) and the number of available seats for each district for an election of members of DPR as referred to in paragraph (2) shall be regulated in a KPU regulation.”

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

Translation uploaded on 12/22/2022 09:25 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.

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