The material judicial review hearing of the Election Law No. 7 of 2017 for case No. 114/PUU-XX/2022, Thursday (2/23/2023). Photo by MKRI/Ifa.
Thursday, February 23, 2023 | 15:36 WIB
JAKARTA (MKRI) — The legislators used to implement the closed-list proportional system, but later on started using the open-list system. This confirms that the election mechanism and procedure is the legislators’ open legal policy. The choice to use the open-list system was then strengthened by the Constitutional Court Decision No. 22-24/PUU-VI/2008, which settled on vote majority on the basis of protecting the human rights of voters. This is in line with the Court’s legal considerations in said decision, sub-paragraph (3.15.3 page 105).
This statement was made by Faudjan Muslim on behalf of the Prosperous Justice Party (PKS) as a Relevant Party in case No. 114/PUU-XX/2022 at the material judicial review hearing of Article 168 of Law No. 7 of 2017 on General Elections on Thursday, February 23, 2023 in the Constitutional Court’s (MK) plenary courtroom. The session was presided over by Chief Justice Anwar Usman and seven other constitutional justices.
Faudjan emphasized that the open-list proportional system needs to be maintained as it would create closeness between voters and party candidates. Thus, members of the legislatures would show more responsibility towards constituents. In addition, it would improve public participation and control. Hopefully, the performance of the parties and the parliament can also be evaluated more easily because the people directly determine their representation. The system would support party internal dynamics and promote positive competition among candidates, thus leading to optimal party function. The hope is that these dynamics can improve voter turnout and support for the candidates or parties. If their candidates of choice are no longer in line with their aspirations, they can change their choice in the next election.
Faudjan explained that the Petitioners argued that the open-list proportional system has created unhealthy competition and focused on popularity and capital strength in the general election process, which PKS believe was too pessimistic due to relative unpopularity.
“In fact, the open-list proportional system can urge healthy competition among candidates. Popular candidates who have good electability can bring voters and representatives closer after the election and facilitate supervision by the community,” he explained.
Faudjan then explained recall right, the rights inherent in party leaders, in both the open- and closed-list proportional systems. In the open-list system, the implication of recall is that voters already know who will replace the candidates with the majority votes: ones with votes directly below theirs. Meanwhile, in the closed-list system, the recall is the political parties’ prerogative, while voters do not have a choice in it. This is because the recall right cannot be separated from political parties. The Petitioners asserted that the open-list proportional system has created individualism among politicians and caused internal conflicts in the party. PKS argued that in the closed-list proportional system, voters do not have a role in determining candidates nominated by political parties.
Legislators’ Original Intent
The next Relevant Party to testify was the Indonesian Solidarity Party (PSI). Anthony Winza Prabowo emphasized that with the open-list proportional system, the people freely choose and determine the candidates for the legislatures. It would be simpler and easier to determine who have the right to be elected, i.e. candidates who receive the most votes and the people’s support.
Anthony said the legislators’ original intent refers to the open-list proportional system. “Why do I say that? Because in a material judicial review, the emphasis is not solely the material of the law being reviewed, but more importantly the touchstone(s). How to interpret the Constitution, the meaning implied and stated in the words of the Constitution. So, not only do we have to look at the legislative intent of the legislators, but also explore their original intent and the amendments. The Constitutional Court has interpreted the Constitution by placing original intent as the main factor in interpreting the Constitution,” he explained.
He asserted that this can be seen clearly in the Court’s considerations for Decision No. 1-2/PUU-XII/2014, on page 106. At that time, the Court stated it must use a rigid approach as the 1945 Constitution clearly regulates the attributive authority of each agency. In the event that the Constitutional Court is forced to interpret provisions on any state institution, it must apply a comprehensive, textual, and grammatical interpretation of the original intent and not deviate from what is clearly stated in the Constitution.
“So, prioritizing the original intent before the textual and grammatical approach is the judicial intent of the Constitutional Court to state that this original intent has the highest priority in interpretation,” he emphasized.
M. Sholeh, another Relevant Party, said that the open-list proportional system would make the election healthy, because candidates approach constituents long before the election take place. In contrast, in the closed-list system, candidates do not approach constituents, so there is no competition. In addition, no legislative candidates convey their ideas or programs and approach constituents.
“Many candidates don’t have large capital but successfully [entered] parliament, for example PDI-P candidate former KPK Commissioner Johan Budi. Where did he get money? In fact, he was elected after beating incumbent Budiman Sujatmiko. An incumbent can lose in an electoral district to a new candidate who really want to approach the community and have high social capital,” M. Sholeh said refuting the Petitioners’ argument that candidates must be rich.
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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, 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 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 : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/27/2023 14:40 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.
Thursday, February 23, 2023 | 15:36 WIB 205