Open-List Proportional System Allows Freedom to Choose Representatives

The material judicial review hearing of the Election Law No. 7 of 2017 on the open-list proportional representation, Thursday (1/26/2022). Photo by MKRI/Ifa.

Thursday, January 26, 2023 | 15:12 WIB

JAKARTA (MKRI) — The open-list proportional representation in election as regulated by Article 168 paragraph (2) of Law No. 7 of 2017 on General Elections shows good representation as voters have the freedom to choose their representatives in the legislative branch directly and assert control over them, said House of Representatives (DPR) Commission III member Supriansa on behalf of the House at the fifth judicial review hearing of case No. 114/PUU-XX/2022 on Thursday, January 26, 2023 in the plenary courtroom.

He said that the system must guarantee that the people’s aspirations are channeled in a direct, public, free, confidential, honest, and fair manner as mandated by Article 22E paragraph (1) of the 1945 Constitution. He asserted that Article 168 paragraph (2) of the Election Law realizes that legal ideal and the election is expected to guarantee representation more so that Indonesian citizens are guaranteed representatives who will implement their aspirations.

“So, a direct, public, free, confidential, honest, and fair election is an absolute condition to quality, trusted representatives that can exercise legislative functions optimally,” he stressed before Chief Justice Anwar Usman and the other eight constitutional justices.

He also argued that good, quality election would lend to healthy competition, active participation, and strong and accountable representation. Through the open-list proportional representation and the phrase “the symbol of the political party, the running number of the political party, the name of candidates of members of DPR and Provincial DPRD and Regency/City DPRD” in the a quo articles of the Election Law has in fact provided clarity and opportunity for the people to participate in election.

“The enactment of the open-list proportional system has returned sovereignty to the people for them to choose legislative members directly with majority votes. This will create justice not only for legislative members but also for the people

Also read: Open Proportional System in Election Challenged

Not Depending on Party’s Policy

Supriansa said, an open proportional system would cause the winner of a member of the legislature not to depend on the policies of the political parties participating in the election. However, it is based on how much popular support is given to the candidate. He explained that the Constitutional Court through legal considerations of the Constitutional Court Decision Number 22-24/PUU-VI/2008 had strengthened the application of an open proportional system by stating that Article 22E paragraph (1) of the 1945 Constitution mandated that the holding of elections be of higher quality with the widest possible participation of the people on the principle Direct democracy, general, free, secret, honest and fair must be the main foundation in holding elections. In addition, it can be the basis for developing and implementing the Election Law so that the holding of elections can be accounted for.

“Thus, the people as the main subject in the sovereignty are not only placed as an election object in achieving victory alone. Elections to elect members of the DPR, Provincial DPR, Regency/Municipal DPRD are carried out using an open-list proportional system. The people’s desire to choose their representatives endorsed by the political parties in the election in accordance with their wishes and desires can materialize and the elected representatives are also not only concerned with political parties but are able to carry their constituents’ aspirations,” he said.

He further added that with an open-list proportional system, the people freely choose and vote for candidates for legislative members. As such, it would be simple and easy to determine who has the right to be elected, i.e. candidates with the most votes.

“By giving the people right to directly elect and choose their choice of candidates for members of the DPR, Provincial DPR, Regency/City DPRD with the most votes, in addition to making it easier for voters to make their choice, it is also fairer not only for the candidates for DPR or DPRD members but also for the people in exercising their voting right, for both members of political parties and those who are not,” he said.

Also read: Party Members Affirm Background of Petition on Election Law

Proportional Systems

Meanwhile, on behalf of the Government, the Home Affairs Ministry’s Director-General for Politics and General Administration Bahtiar said the Petitioners’ assumption that open-list proportional system had undermined political parties in determining the selection of legislative candidates, setting up running number of legislative candidates, determining legislative candidates, and determining who the elected candidates, was inaccurate because in both the closed- and open-list proportional systems, the political parties determine the list of legislative candidates in each electoral district. The difference, he added, is that in the closed-list system, the legislative candidates are not printed on the ballot papers, while in the open-list system, the symbols of political parties and the names of legislative candidates are.

“The open-list proportional system does not reduce the right of political parties to determine the selection of candidates and set up the running number of candidates. Even though a legislative candidate is an individual, they still belong to a political party as per Article 241 paragraphs (1) and (2) of Law No. 7 of 2017, which states that the political parties participating in the election select candidates for members of the DPR, Provincial DPR, Regency/City DPRD democratically and openly in accordance with the statutes, bylaws, and/or the internal regulations of the political parties participating in the election. So, political parties have full authority to determine the selection of candidates, make running numbers, and determine who is eligible to be elected as the best party cadre,” he said.

However, he added, voters’ choices directly affect the outcome since in both the open- and closed-list systems, a direct election with the principle of “one man one vote one value” applies. This, he said, reflects the direct, public, free, confidential, honest, and fair principles as per Article 22E paragraph (2) of the 1945 Constitution.

Bahtiar argued that the difference between the two systems is apparent in discussions both within and outside parliament during the discussion of the Election Law. The open-list system is the result of deliberations by legislators, taking into account the objective conditions of Indonesia’s democratic transition, where political sub-system in various aspects needs to be strengthened, including in terms of the party system, political culture, and so on.

“The substance of Article 168 paragraph (2) argued by the Petitioners is still relevant as the basis for organizing elections and does not conflict with the 1945 Constitution. However, given harmony in the concept of trias politica, the administration of state administration is dynamic,” he explained.

He asserted that, in principle, the Government respects the rights of citizens and political parties in the state administration because both are integral components of democracy to realize the ideals of the nation within the Preamble to the 1945 Constitution.

Also read: President Requests Hearing on Election Law Postponed

Constitutional Court’s Decision on Electoral Districts

Constitutional Justice Saldi Isra reminded the House of the conclusions of working meetings and hearings in their statement on electoral districts, in that Commission II and the Minister of Home Affairs, the KPU (General Elections Commission), Bawaslu (Elections Supervisory Body), and the DKPP (Election Organizer Ethics Council) agreed that the electoral districts for the House and Provincial DPRD would be the same and did not change, following Appendices III and IV of the Election Law. He added that the Court handed down Decision No. 85/PUU-XX/2022 on this.

“In the House’s statement, we found things that must be considered together on page 42, recommendations from the House and the Minister of Home Affairs, the KPU, and Bawaslu. We want to remind the House that there has been a Constitutional Court decision on electoral districts. Please reflect on the two substances, with the reasons stated in the decision. Do not let this be an issue if it ends in a dispute later on. And this is a point that the House must think about. Don’t let this be a weak point for people to question. This doesn’t need to be answered, it’s just a reminder for the House,” he said.

Chief Justice Anwar Usman also informed the litigants that 14 parties requested to become Relevant Parties in the case. Their testimonies will be presented at the next hearing on Thursday, February 9, 2023 at 10:00 WIB.

Also read: After Approving On-Site Hearing, Court Delays Hearing on Election Law

The petition was filed by Demas Brian Wicaksono (an executive of the Indonesian Democratic Party of Struggle or PDI-P), Yuwono Pintadi (a member of the National Democratic Party or Nasdem), Fahrurrozi, Ibnu Rachman Jaya, Riyanto, and Nono Marijono. They challenge Article 168 paragraph (2), Article 342 paragraph (2), Article 353 paragraph (1) letter b, 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.

At the preliminary hearing on Wednesday, November 23, 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 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. They 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.

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

Translation uploaded on 1/30/2023 13:30 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.

Thursday, January 26, 2023 | 15:12 WIB 829