The legal counsel of one of the Relevant Parties, Ade Septiawan Putra, testifying at the material judicial review hearing of the Election Law No. 7 of 2017, Thursday (2/9/2023). Photo by MKRI/Ifa.
Thursday, February 9, 2023 | 13:38 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of the open-list proportional representation in election as regulated by Article 168 paragraph (2) of Law No. 7 of 2017 on General Elections on Thursday, February 9, 2023 in the plenary courtroom and virtually. The sixth hearing for case No. 114/PUU-XX/2022, presided over by Chief Justice Anwar Usman and the other seven constitutional justices, presented M. Fathurrahman, Sharlota, Asnawi as Relevant Parties.
M. Fathurrahman’s legal counsel Ade Septiawan Putra said in his testimony that the open-list proportional system in the Election Law is the implementation of the Constitutional Court Decision Number 22-24/PUU-VI/2008 dated December 3, 2008 relating to the election of members of the House of Representatives (DPR), Provincial Regional Legislative Council (DPRD), and Regency/Municipal DPRD so that the people’s votes for representatives, who are endorsed by political parties contesting in the election, can be implemented.
“With the open-list proportional system, the people are free to choose and determine legislative candidates. It makes for simpler and easier selection, in that candidates with the most votes are elected. The people’s right to directly choose and determine their choice of members of the House, Provincial DPRD, and Regency/City DPRD not only makes it easier for voters to choose but is also fair for House and DPRD member candidates and for the people to use their vote as members of political parties or not. The candidates’ victory not only relies on the parties contesting in the election, but on the size of the people’s support for them,” he explained.
As such, based on the Court’s decision, the system was seen to be the best one where the principle of one man, one vote, one value prevails.
The Petitioners believe that the 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. Ade argued that the assertion was inaccurate because in both closed- and open-list proportional representation, the political parties determine the list of legislative candidates in all electoral districts. The difference is that in the closed-list system, the candidates’ names do not show up on the ballots while in the open-list system, the parties’ symbols and the legislative candidates’ names do.
Ade asserted that the open-list system does not reduce the parties’ right to determine their legislative candidates and create the order of their candidates. While the candidates are individuals, they are affiliated with the parties, as per Article 241 paragraphs (1) and (2) of the Election Law, which asserts that the political parties contesting in an election select those who they will nominate as candidates of members of the DPR, Provincial DPRD, or Regency/City DPRD and that the selection process shall be conducted in a democratic and open manner, in accordance to the political party’s statutes, bylaws, and/or internal regulation.
“The choice to implement the open-list proportional system in the Law was the results of lawmaking deliberations taking into account the objective conditions of the Indonesian democratic transition process, which required the strengthening of the political sub-systems in various aspects including of the party system, political culture, voter behavior culture, rights to freedom of expression and opinion, ideological pluralism, interests and aspirations the political community represented by political parties, and so on. In addition, the 2024 Election process has been ongoing so fundamental changes such as the election system […] could potentially cause socio-political upheaval for both the political parties and society,” he emphasized.
Ade added that the enactment of the a quo article does not necessarily impede the Petitioners’ constitutional rights and/or authorities because they still have guarantee of protection and fair legal certainty and can still carry out activities as citizens to vote or be elected in elections.
As such, he stressed, the Petitioners’ constitutional rights and/or authorities had not been violated by the enactment of the a quo article and, thus, it is certain that they do not have legal standing.
No Reduction to People’s Sovereignty
Meanwhile, Sharlota, represented by La Ode Risman, revealed that the open-list proportional system had been implemented three times in the 2009, 2014, and 2019 Elections without any upheaval.
“There was no integration issue in the 2019 General Election that the Petitioners assume. The 2019 Election was very democratic and the Petitioners’ misinterpretation of the role of political parties in the election as a constitutional mandate was very ambiguous,” he said.
He also said that political parties in the government system is important, but they do not necessarily reduce people’s sovereignty.
“Members of the DPR, Provincial DPRD, or Regency/City DPRD are elected through general elections, which means elections are held based on the people’s choices to determine who they choose constitutionally, because the sovereign voters are the people, not political parties in previous elections. [Thus] the open-list proportional system is the best and democratic choice,” he said. He also said that political parties are means to and end, but that does not mean that absolute sovereignty is in the hands of political parties.
Potentially Creating Oligarchy
Meanwhile, other Relevant Parties, Asnawi and peers, represented by Yudi Rijali Muslim, emphasized that the Election Law’s goal is so that the legislative members could optimally present their vision and mission to voters and to encourage the parties to endorse their best candidates, so that the electorates can vote the candidates who really represent them. “It also serves to implement the people’s aspirations in government,” he added.
The believe the closed-list proportional system would potentially discourage competition between fellow party cadres and give rise to oligarchy within political parties. Parties that have a strong, authoritarian, and dynastic-based tradition of command would prefer this system. On the other hand, the movement of political party oligarchy is relatively constrained in an open-list proportional system.
“The absence of competition between cadres also encourages competition that is more rooted upwards than downwards, so we are worried that a closed-list proportional system will also be used by political parties that are opportunistic, elitist, and unable to communicate well with the people,” Yudi explained.
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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 2/10/2023 19:40 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.