Deputy Chief Justice Saldi Isra witnessing the oath-taking of the relevant parties to testify at the judicial review hearing of Law No. 7 of 2017 on General Elections, Tuesday (5/23/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The judicial review hearing of the electoral system in Article 168 Law No. 7 of 2017 on General Elections was held by the Constitutional Court (MK) on Tuesday, May 23, 2023. The sixteenth hearing presented experts for the Garuda and the Nasdem Parties, Relevant Parties for the case No. 114/PUU-XX/2022.
The Garuda Party presented Abdul Chair Ramadhan, a law lecturer at As-Syafi’iyah Islamic University, who said that in a democracy, election is vital since one of the measure of a state’s democracy is its elections.
“The principles of popular sovereignty (democratie) and legal sovereignty (nomocratie) should be applied hand in hand. This shows a democratic rule of law (democratische rechtsstaat) and a democracy based on law (constitutional democracy) that are inseparable as the real manifestation of all Indonesian nation of the principle of God’s divinity,” he said at the plenary session presided over by Chief Justice Anwar Usman and seven other constitutional justices.
Abdul Chair said that the proportional system allows for an emotional and responsibility connection between elected legislative candidates and their voters. Such a condition will strengthen representatives’ political and moral commitment. This commitment to realize substantive popular sovereignty into their power is guaranteed and accommodated.
Public participation in election is absolutely necessary. The people’s right to vote and be voted for is a basic and human right, as is enshrined in Article 43 paragraph (1) of Law No. 39 of 1999, which reads, “Every citizen has the right to vote and be voted for in general elections and has equal rights to a direct, free, secret, fair, and just vote, in accordance with prevailing law.”
Open-List Proportional System
Abdul Chair argued that the open-list proportional system is in line with truth and justice, which, according to Sisworo, are a unity and legitimize one another.
Truth and justice are an inseparable unity. A just act is based on truth. In this case, the open-list proportional system is aimed at preventing loss and prioritizing good.
In Line with MUI’s Fatwa
Abdul Chair further explained that the obligation to elect candidates who are faithful and pious, honest (shiddîq), trusted (amânah), active and aspirational (tablîgh), capable (fathânah), and fight for the interests of Muslims, requires the open-list proportional system. With its absence, this obligation cannot be carried out. Based on the fiqh rule, “mâ lâ yatimmu al-wâjib illâ bihî fa huwa wâjib,” the open-list proportional system is mandatory.
In relation to the petition for the closed-list proportional system, if it is argued in reverse (mafhüm mukhâlafah/argumentum a contrario), then it is haram. It is so because Muslims as constituents cannot choose candidates directly as intended in point 4 of the MUI fatwa: leaders who are faithful and pious, honest (shiddîq), trusted (amânah), active and aspirational (tablîgh), capable (fathânah), and fight for the interests of Muslims.
These criteria can only be achieved by directly electing legislative candidates, and which necessitates the open-list proportional system. The closed-list one cannot fulfill the election requirements as intended in the MUI fatwa.
Thus, he emphasized, the open-list proportional system is identical to the principle of majority voting. Majority voting is a consequence of the principles of freedom and equality as intended in the 1945 Constitution. Thus, the 1945 Constitution, which adheres to the two essential principles of democracy, also adheres to majority voting as a way of realizing the two principles.
“The norms in 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, and Article 426 paragraph (3) of Law No. 7 of 2017 on General Elections are not contrary to Article 22E paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. In other words, the open-list proportional system affirms popular sovereignty and is in line with the axiology of constitutional law,” Abdul Chair emphasized.
Meanwhile, Wibi Andrino of the Nasdem Party presented I Gusti Putu Artha, who testified that the open-list proportional system with majority voting intends to position political parties constitutionally based on the Constitution’s mandate. “I’m not refuting that DPR, provincial and regency/city DPRD election participants are political parties. However, it must be noted that Article 1 of the Constitution (the most important and earliest article) stresses that sovereignty is vested in the people,” he emphasized.
Putu believes that Law No. 7 of 2017 emphasizes that in DPR, provincial and regency/city DPRD election, political parties receive the mandate to select and filter best candidates in the electoral district and bring them to all levels of the KPU (General Elections Commission). Article 1 of the Constitution leaves the candidates to the people. In the parliament, representatives congregate in their factions to aggregate the people’s interests that the House members and political parties represent in the electoral districts. In this explanation, there is no basis for de-partying because since the candidates register until their tenures end, these representatives remained tied to political parties although they are elected through the open-list proportional system.
Putu argued that both the open- and closed-list proportional systems are constitutional, only different in the level of constitutionality. In this context, based on the Constitution, decision-making for the system is in the hands of the House and the president as legislatures.
“The open- and closed-list proportional systems are both constitutional but the open- one has more value. Technically, the change to the electoral system to adopt in 2024 election could potentially lead to political upheaval within the parties and challenges in the administrative verification and logistics supply by the KPU,” he explained.
In addition, the open-list proportional system has been proven to build political regeneration that promotes local leaders who have good rapport with the people and the capability to cater to the people, budgets that side with the people, and women politicians.
He also emphasized that both systems could potentially lead to money politics and costly campaign if there is no strict regulation and law enforcement.
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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.
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.