Yusril Ihza Mahendra representing the Crescent Star Party (PBB) as a Relevant Party to testify at the material judicial review hearing of Article 168 of the Election Law No. 7 of 2017, Wednesday (3/8/2023). Photo by MKRI/Ifa.

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Wednesday, March 8, 2023 | 15:19 WIB

JAKARTA (MKRI) — Article 168 of Law No. 7 of 2017 on General Elections has reduced the positions of political parties as election contestants, said Yusril Ihza Mahendra at the material judicial review hearing of the a quo article on Wednesday, March 8, 2023 in the Constitutional Court’s (MK) plenary courtroom.

He represented the Crescent Star Party (PBB) as a Relevant Party in case No. 114/PUU-XX/2022, petitioned 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. The hearing had been scheduled to present the Relevant Party’s testimony.

Yusril said that the shift that prioritized candidates from political parties with majority votes was against popular sovereignty as referred to in Article 1 paragraphs (2) and (3), Article 6A paragraph (2), Article 22E paragraphs (2) and (3), and Article 28D paragraph (1) of the 1945 Constitution. This is because Article 1 paragraph (2) of the 1945 Constitution stresses that sovereignty, which is vested in the people, is not implemented by all Indonesians but pursuant to the Constitution, which is by political parties through election to choose members of parliament as well as the president and vice president, as per Article 6A paragraph (2) and Article 22E paragraphs (2) and (3) of the 1945 Constitution.

“The emphasis that political party be the main contestants in elections, when the number of votes they acquire has met the requirement, it is appropriate that political parties are given a significant role to determine which candidates will sit in elected posts,” he said.

Dark Side of Open-List Proportional System

Yusril asserted that the majority-vote system in the past four elections had shown the dark side of the open-list proportional system, which initially served to eliminate gap between voters and their representatives. However, it turns out that the system had led to gap between the two and weakened the position of political parties, who now no longer focused on its basic function as a means for education on politics and participation.

He further stated that political parties no longer strive to improve its programs that promote their ideology, but to find candidates that attract more votes. This shows the structural weakening of political parties. They no longer focus on training young cadres for sustaining the party’s ideology but on finding shortcuts by seeking popular, wealthy cadres to fund the party.

“The best idealist cadres with capacity but without popularity have slowly been eliminated from the party circle and replaced by well-known figures who, in fact, do not necessarily work well,” he stressed.

Yusril believes the victory of the majority that the open-list proportional system promotes has directly changed the electoral playing field, which should be a battlefield for ideas. The election has instead become a battle of fame and financial ability because famous and wealthy cadres attract parties, who seek to gain majority votes. So, it is not uncommon for parties to be unable or even hesitant to carry out supervision or control, or impose sanctions for violations committed by these popular and financially capable cadres, solely due to their large following. As a result, parties carry out their functions and train cadres inconsistently.

Bad Experience with Closed-List Proportional System

At this hearing, the Court also heard the testimonies of Golkar Party cadres Derek Loupatty, Achmad Taufan Soedirjo, and Martinus Anthon Werimon as another Relevant Party. Through legal counsel Heru Widodo, they stressed that they reject the Petitioners’ wish for the open-list proportional system to be canceled. They asserted that, first, the current election system is the result of a long history that reflects evaluation of the “trauma” resulting from the past election systems. It is also the result of the 1998 Reform era.

“Secondly, both the open and closed-list proportional systems have pros and cons that negate each other,” Heru said.

He further explained that the open-list proportional system had been chosen because it negated the flaws of the closed-list proportional system: restriction on participation, gap between voters and the representatives, stagnant political communication, unfair candidacy, and crisis of potential legislative members. In the closed-list system, winning candidates were predictable, thus deterring potential candidates from running in election. It also allowed the party to have complete control over who would sit in the parliament after the party’s votes were converted into seats. All these accumulated and led to the public’s disappointment.

Heru added that repealing the open-list proportional system and reviving the closed-list system would result in candidates winning by order of number, thus the people would not be able to vote for their intended candidates. It would also disregard the legitimacy of candidates who receive the most votes.

He emphasized that the open-list proportional system does not contradict Article 22E paragraph (3) of the 1945 Constitution. The norm, which reads, “Participants in a general election to elect members of DPR and members of DPRD shall be political parties,” cannot be interpreted narrowly that the only constitutional system is the closed-list system. First, the article actually restricts parliamentary (DPR, DPRD) candidacy only to endorsement by parties that contest in election, without the possibility of endorsement by CSOs or independent candidates.

“Secondly, in the open-list proportional system, the role of political parties as election contestants is not eliminated. Election participation remains the right of political parties. They have the key role in political education, recruiting prospective legislative candidates and, fundamentally, determining prospective legislative candidates to recruit. This also refutes the Petitioners’ argument that the role of political parties was distorted in a system where the candidates are determined based on the most votes.

The Relevant Party also argued that the open-list system was delegated by the legislatures’ open authority, so it should not be reviewed judicially. In addition, substantively, this policy cannot be separated from the bad experience of implementing the closed-list system in elections in the New Order. The closed-list system was seen to have been resulting in candidates who represented party elite rather than the constituents.

The experience compelled the legislatures to switch to the open-list system in 2003. Debates over the system only concerned the variant to apply, whether to determine prospective candidates based on the vote division number (BPP) or other methods.

Legislatures’ Choice

Heru added that the open-list proportional system was declared fair after the Constitutional Court Decision No. 22-24/PUU-VI/2008. It has several strengths: it allows optimum public participation by promoting direct voting of representatives, it encourages candidates to listen to people’s aspirations while campaigning, voters have many options, political parties get as many seats as the votes they get, it promotes high representation, and the legitimacy of power is strong.

Furthermore, the open-list proportional system is based on precedents, i.e. the Constitutional Court’s decisions. The Court asserted that election system variables were the legislatures’ open legal policy through Decisions No. 16/PUU-V/2007 and No. 52/PUU-X/2012 on electoral threshold, Decisions No. 55/PUU-XVII/2019 on election schedule and the design of election simultaneity, and Decision No. 16/PUU-XIX/2021. The most phenomenal was the Court’s decisions on presidential threshold, where it firmly asserted that the presidential threshold was the legislatures’ open legal policy.

Also read:

Open Proportional System in Election Challenged

Party Members Affirm Background of Petition on Election Law

Open-List Proportional System Allows Freedom to Choose Representatives

Relevant Party Explains Proportional System in Election

Garuda, Nasdem Support Open-List Proportional System

PKS, PSI Show Support for Open-List Proportional System

The Petitioners 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. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 3/9/2023 09:48 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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