Bawaslu ex-member Fritz Edward Siregar taking oath before testifying at the material judicial review hearing of the Election Law No. 7 of 2017, Wednesday (4/5/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Change in a constitutional democracy is part of a process that is critical to ensuring the continued protection and promotion of democratic principles. When changes are made to support the democratic process, they contribute to the resilience of the democratic system itself.

“As long as the change is made through transparent, inclusive, and participatory processes that respect constitutional norms and democratic values, it is necessary for the continued functioning and growth of our constitutional democracy. And the change I am referring to is that from an open-list proportional system to a closed-list one.”

The statement was made by Fritz Edward Siregar at the judicial review hearing of Article 168 of Law No. 7 of 2017 on General Elections on Wednesday, April 5, 2023 in the plenary courtroom of the Constitutional Court (MK). The hearing for case No. 114/PUU-XX/2022 presented two experts for the Petitioners: constitutional law instructor at the Jentera Indonesian School of Law Fritz Edward Siregar and constitutional law lecturer at Universitas Sebelas Maret (UNS) of Surakarta Agus Riewanto.

Invalid Votes

The Bawaslu (Elections Supervisory Body) ex-member of 2017-2022 explained that the voting, vote counting, and vote recapitulation process is complex, arduous, and could potentially lead to errors. The voting process, where lists of eligible voters are made, could lead to invalid votes.

In the 2019 Election, there were 17,503,953 or 11.12% invalid votes. The vote counting process was also affected by the open-list proportional system. The process was time-consuming, where the candidate number and party number must be counted, recorded, and put in the right columns.

“Vote manipulation could potentially happen during the vote counting and the recording in the candidate or party column. In the recapitulation process, the issue that frequently happens at the polling stations is the transfer of votes from one candidate to another within one party,” Siregar explained.

Eliminate Money Politics

Another widespread issue in election, Siregar revealed, is vote buying, or what is commonly referred to as money politics. In 2019, there were 69 court decisions on such violations.

Both domestic and foreign scholars have written about how money politics has sabotaged election process. “And the change to the closed-list proportional system is one of the effective ways to eliminate money politics in election process,” he emphasized before Deputy Chief Justice Saldi Isra and the other seven constitutional justices.

Weakening of Political Parties

Agus Riewanto said virtually that the open-list proportional system where the elect candidates are determined by majority votes is not in line with the constitutional mandate. “So, it can be declared unconstitutional,” he said.

He asserted that the open-list system had weakened political parties in democracy, as legislative candidates-elect are not trained to have respect for the parties, since they feel they have been elected not through the party but through majority votes.

The legislative elections of 2009, 2014, and 2019 in Indonesia were not in line with the constitutional mandate enshrined in Article 22E paragraph (3) of the 1945 Constitution as election contestants are not political parties but individual candidates. The parties have significantly lost its role in the open-list system since in Law No. 7 of 2017 on General Elections it is interpreted as legislative candidates-elect being determined based on majority votes, not order number that the parties put on ballots.

“In practice, the open-list proportional electoral system with the determination of elected candidates based on majority votes has led to elections that only depend on figures or candidates (candidate-centered politics). So, voters choose popular, financially-capable candidates. In practice, although political parties are authorized to recruit candidates and order them by numbers, it is only a formality because candidates in the numbers are not automatically elected,” Agus said.

He believes that the open-list system has encouraged political parties to compete to recruit candidates who have large financial capital and are popular in order to be elected by voters instead of recruiting candidates based on ideological ties and political party structure who have experience in managing political party organizations or sociopolitical organizations. As a result, when the candidates are elected as members of the DPR (House of Representatives) or DPRD (Regional Legislative Council), they do not represent the political parties but themselves.

In addition, the open-list system, he argued, has been the main cause of disloyal attitudes to political parties because candidates feel that parties are only means to and end and that voters, not parties, who determine their electability. This has led to a crisis in the authority of political party organizations and weakening community participation to become political party administrators. As a result, political parties do not carry out their function as ideological organizations and recruiters of prospective political leaders. 

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

Debates on Open-List Proportional Election System

Open-List System Promotes Loyalty to Party and Constituents

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 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)

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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