Chief Justice Anwar Usman reading out the verdict for the material judicial review hearing of Law No. 7 of 2017 on General Elections, Thursday (6/15/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) finally rejected the judicial review petition of Law No. 7 of 2017 on General Elections on Thursday, June 15, 2023 in the plenary courtroom. “[The Court], relating to the provision, rejects the Petitioners’ provisional petition; relating to the subject matter, rejects the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman alongside seven other constitutional justices while reading out the verdict in Decision No. 114/PUU-XX/2022.

The petition was filed by Riyanto, Nono Marijono, Ibnu Rachman Jaya, Yuwono Pintadi, Demas Brian Wicaksono, and Fahrurrozi. They challenged 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 relating to the open-list proportional system for the election. They alleged that the open-list proportional system had distorted the role of political parties.

As the Court rejected the petition, the open-list proportional system remains for the election for DPR (House of Representatives) and DPRD (Regional Legislative Council) members in 2024.

Parties’ Central Role

In its legal considerations delivered by Deputy Chief Justice Saldi Isra, the Court asserted that to this day, political parties have a central role and full authority in the selection and determination of prospective candidates, including the order number of legislative candidates. Moreover, facts show that since the amendment to the 1945 Constitution, political parties has been the only way for eligible citizens to run as DPR/DPRD members.

Political parties also have a central role in overseeing elected DPR/DPRD members. They have the authority to evaluate its members who sit in the DPR/DPRD through intertemporal substitution or recall. “Through intertemporal substitution, DPR/DPRD members are expected to be loyal and committed to their party’s policies,” Justice Saldi said.

Change of Electoral System

The Court believes the open-list proportional system is closer to the ideals of the 1945 Constitution. However, conceptually and practically, any system, closed or open and even district-based, have their strengths and weaknesses. Therefore, this open-list system, which the legislatures chose, could still be adjusted to the election’s needs.

Any improvement to the current system must take into account several things: it should not be too frequent, it should be done to improve on the system, it should be done prior to the commencement of the election stages, maintain balance and continuity of the role of political parties as stipulated in Article 22E paragraph (3) of the 1945 Constitution and the principle of popular sovereignty as stipulated in Article 1 paragraph (2) of the 1945 Constitution, and involve all groups that have an interest in the organization of elections by allowing for meaningful public participation.

Strengths and Weaknesses of Open-List Proportional System

Constitutional Justice Suhartoyo took turns to read the Court’s legal opinion that both the open- and closed-list proportional systems have strengths and weaknesses. One of the strengths of the open-list system is encouraging competition for votes among candidates in order to obtain a seat. This promotes healthy competition and boost the quality of the candidates’ campaign and work program. This system also allows for a close relationship between the candidates elect and their voters.

“This system allows voters to have direct freedom to choose legislative candidates who they deem most able to represent their interests and aspirations. This creates a closer relationship between the voters and their candidates elect, since they had a direct role in determining their representatives in the parliament. In addition, the open-list proportional system allows voters to choose their candidates directly. They have the freedom to choose candidates from a certain political parties without being bound by the candidates’ list order that the parties determined,” Justice Suhartoyo read.

Another strength is that voters can directly monitor their representatives and be involved in monitoring their selected representatives’ conduct and decisions, thus improving accountability and transparency.

Lastly, the open-list proportional system is seen to be more democratic as political representation is based on the party’s or candidate’s votes, thus is more fair to the party or candidate that amasses significant public following. This encourages political inclusiveness, accommodates society’s interests, and prevents domination by any certain group or party.

On the other hand, it also has downsides, as it allows money politics, where candidates with stronger financial capital could use their strength to manipulate voters. It also requires a lot of money to run for the election. 

Strengths and Weaknesses of Closed-List Proportional System

Justice Suhartoyo also laid out the Court’s opinion on the closed-list proportional system. One of its strengths, among others, is that it would allow political parties to monitor their representatives’ conduct, thus allowing them to ensure that their members behave according to the party’s intent and collective interests that they represent. It would also allow parties to promote their best members.

This system would allow parties to have more authority in determining their candidates. Strict selection can improve the quality and competency of elected representatives. It would also encourage parties to promote regeneration and political education among their members.

It also could potentially minimize money politics and black campaign. Strict internal selection within the party would allow them to ensure that their candidates were not too dependent on external financial support and were not involved in negative campaigns that distort democracy.

On the other hand, the closed-list proportional system would not allow voters much freedom in choosing DPR/DPRD candidates. They would not have the opportunity to directly vote for certain candidates.

This system could also potentially allow nepotism as political parties tend to show support for candidates within their closest circles without objective consideration for the candidates’ quality and competency. This practice could harm democracy and lessen legislative members’ quality. Another weakness is that it would lessen closeness between DPR/DPRD members and their constituents, who did not vote for them directly. In addition, this could lead to party oligarchy if the parties did not have transparent candidate recruitment. The candidates could focus on the party’s interests without any regard to the people’s aspirations and interests. The lack of transparency in the recruitment and candidacy process could allow for unhealthy political practice and reduce public trust in political parties and politics in general.

Both systems’ upsides and downsides are irrefutable facts. In fact, they are almost always closely related to their implications and application in organizing elections. That is, whatever the system is, there will always be advantages and disadvantages.

Dissenting Opinion

Constitutional Justice Arief Hidayat expressed his dissent to the decision. He asserted that there needs to be evaluation, improvement, and changes to the open-list proportional system, which has been implemented four times in 2004, 2009, 2014, and 2019.

There needs to be a limit to the open-list system, he argued, since the existing system has been based on fragile democracy, in both philosophical and sociological perspectives. The case ended in the Constitutional Court because legislative candidates competed with disregard of ethics and tried to justify all means, which has led to conflicts in society, and the parties could not resolve them on their own.

“To prevent any disturbance to the already commencing stages of the 2024 Election and to prepare for sufficient instrument and regulation, the limited open-list proportional electoral system should be implemented in 2029. I believe the Petitioner’s petition was legally grounded in part and, thus, must be granted in part,” Justice Arief said.

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 

Expert Talks Bad Experience of Closed-List Proportional System 

Open-List Proportional System in Line with Truth and Justice 

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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