A judicial review hearing of Law No. 7 of 2017 on General Elections to hear the Relevant Party’s experts, Monday (5/15/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — After the 1999 election, the legislators decided to change the closed-list proportional electoral system for electing members of the DPR (House of Representatives) and DPRD (Regional Legislative Council) so that voters could directly vote for their preferred candidates on the ballot. The ballot would not only contain the party’s serial number and logo, but also the serial number and name of the candidate nominated by the party. However, in the 2004 election, through Law No. 12 of 2003, this was still done through the implementation of a relatively closed open-list system, where candidates will occupy the seats obtained by the party if they get a number of votes for the quota of one seat, called the voter division number (BPP).

This statement was made by election activist and practitioner Titi Anggraini as an expert at the judicial review hearing of Law No. 7 of 2017 on General Elections on Monday, May 15, 2023 in the plenary courtroom. The hearing presented experts for Derek Loupatty, a Relevant Party for the case No. 114/PUU-XX/2022. These experts were election activist and practitioner Titi Anggraini, Zainal Arifin Mochtar (head of the Constitutional Law Department of Gadjah Mada University, Yogyakarta), and Khairul Fahmi (constitutional law and electoral law lecturer of Andalas University).

Titi, who attended the hearing on site, said the open-list proportional system was gradually annulled by the Constitutional Court through Decision No. 22-24/PUU-VI/2008, in which the Court asserted that legislative candidates can be legislative members at all levels corresponding to the votes they received.

“So, the requirement of 30% of BPP must be fulfilled by the candidates in order to get a seat. If they did not, it came down to order number, which the Court felt was unfair and in violation of the popular sovereignty,” Titi said.

She hoped there would be evaluation or modification of the electoral system since any one system would make it hard to make adjustments and improvement in upcoming elections.

Therefore, Titi added, judging from the latest Constitutional Court decisions, the Court should defer the election system to the legislatures. However, it should remind the legislatures of the principles in choosing the electoral system, as it did in Decision No. 55/PUU-XVII/2019 on the simultaneity of election.

The Constitutional Court also should emphasis in its decisions that the consistence choice of the electoral system alongside its technical variables in order to prevent any ambiguity in implementation. For example, the use of serial number and the option to vote for the party in the open-list proportional system with the popular vote (pure majority) is irrelevant. If punching on a party’s logo is still allowed, it is reasonable for the party to be allowed to determine its candidates if it gets the most votes. This applies in Australia, whose electoral system recognizes the concepts “below the line” and “above the line.” In the first, voters fully choose the ranking of candidates according to their will, while in the latter voters give candidates authority to determine who will get votes. Of course, the technical details must be further regulated in laws and KPU (General Elections Commission) regulations.

In the future, any review of the electoral system by the legislators should be open and accountable. First, the electoral objectives to be achieved should be formulated clearly. It must be ensured that the choice of electoral system be coherent with the party system, the representation system, and the government system so that democracy is consolidated.

In addition, to prevent the political opportunists, any choice of system must be accompanied by a requirement that candidates be party members for a certain period of time. For example, a minimum of three years before they are registered.

Then, what about the 2024 election? According to Titi, the current conditions has made it impossible to change the electoral system, especially with regard to voting methods. “Because the election stages are already underway and entering crucial phases. It is better for all parties to focus on preparing all stages optimally and preventing and anticipating various potential problems that can arise. Especially when reflecting on the organizing of the 2019 simultaneous election,” she explained. 

Bad Experience

Meanwhile, Khairul Fahmi explained the brief history of the open-list proportional system. First, it was a legal policy choice made by the legislators.

“The choosing of the open-list proportional system cannot be separated from the bad experience of implementing the closed-list proportional system during the New Order elections. The closed-list proportional system applied at that time was considered to have produced representatives who represented the interests of political party elites more than the interests of the people they represented. This bad experience led the legislators in 2003 to choose the open-list proportional system,” he explained.

Second, since the beginning of the Reform, the legislators have agreed on the open-list proportional system, not the closed-list one. The debate that occurred regarding the choice of this system was only on the variant to be applied, whether the method of determining elected candidates would be based on the percentage of BPP figures or not.

Third, the Constitutional Court took a position to strengthen and emphasize the choice of the open-list proportional system by eliminating the requirement for the acquisition of BPP in determining elected candidates. This step was taken because it was considered more in line with the principle of majority vote as one of the procedural principles of democracy adopted in Article 1 paragraph (2) and Article 22E paragraph (1) of the 1945 Constitution.

According to Khairul, the open-list proportional system had been legitimized by the Constitutional Court through Decision No. 22-24/PUU-VI/2008. Until today, there is absolutely no strong constitutional reason for the Court to change its stance. Even if it were to change its stance, it would not be appropriate for the Court to try to reverse or replace the open-list proportional system with the closed-list proportional system. This is because the open-list system was originally a policy by legislators, where the Constitutional Court was more inclined to shift to a variant that is more in accordance with the principle of majority vote as one of the principles of democracy. This means that the Court was not in a position to replace one system with another. 

Popular Sovereignty

Meanwhile, Zainal Arifin Muchtar said virtually that elections with all their systems and features are an open legal policy of the legislators. That is, the legislators may choose an electoral system that is more suitable and compatible with a country and the objectives to be achieved. Both the open- and closed-list proportional systems are very likely to be used because they are tailored to the circumstances and objectives to be achieved from an election. However, in practice, the objectives will rarely be the main guide, because there are many rather political reasons behind the selection of the electoral system.

In this regard, the override of open legal policy by the Constitutional Court can be seen in Decision No. 22-24/PUU-VI/2008 on the Election of Members of the DPR, DPD, and DPRD Based on the Most Votes. The Court argued that elections with the open-list proportional system provide freedom to the people to determine the legislative candidates to be elected. This system is an easy way to determine who is elected by looking at the most votes. The main reason is because the Court wants to uphold the principle of popular sovereignty, which guarantees more justice.

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

Experts Say Open-List Proportional System Unconstitutional

Expert: Open-List Proportional System Reduces Party Institutionally 

Positive Impacts of Open-List Proportional System on Political Parties 

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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