Chief Justice Anwar Usman pounding the gavel after reading out the verdict for the judicial review of the presidential threshold in the Election Law, Thursday (9/14/2023). Photo by MKRI/Ilham W.M.
JAKARTA (MKRI) — The Decision No. 80/PUU-XXI/2023 on the judicial review of provisions on the presidential threshold as stipulated in Article 222 of Law No. 7 of 2017 on General Elections (Election Law) was delivered on Thursday, September 15, 2023 in the plenary courtroom. The petition was filed by the Labor Party—represented by president Said Iqbal and secretary-general Ferri Nuzarli—as well as journalist Mahardhikka Prakasha Shatya and private employee Wiratno Hadi (Petitioners I-III, respectively) was dismissed by the Constitutional Court (MK).
In its legal opinion, read out by Constitutional Justice Arief Hidayat, the Court argued that the Labor Party is a political party that did not participate in the previous election, while Article 222 of Law No. 7 of 2017 applies to political parties that have participated in the previous election of the House of Representatives (DPR) members and obtained votes. Therefore, the provisions on the minimum threshold of votes acquired by a political party or a coalition of political parties in proposing a pair of presidential and vice-presidential candidates did not apply to Petitioner I.
In relation to the legal standing of Petitioners II and III Mahardhikka Prakasha Shatya and Wiratno Hadi, the Court also emphasized that it had explained its opinion on the legal standing of individual citizens who challenged the constitutionality of Article 222 of the Election Law in Decisions No. 74/PUU-XVIII/2020 and No. 66/PUU-XIX/2012. The Court had held that only political parties or a coalition thereof that participate in the election; individual citizens who have the right to be elected and are nominated by political parties or a coalition thereof that participate in the election as presidential tickets—alone or with the nominating party—can file a petition on the norm.
“In this context, there is no evidence that convinced the Court that Petitioners II and III are individual citizens who have met the requirements to be nominated as presidential and vice-presidential candidates in the 2024 Presidential Election. The Court believes Petitioners I, II, and III had no legal standing to file the petition,” Justice Arief said at the hearing chaired by Chief Justice Anwar Usman.
Petitioners Could Endorse Presidential Tickets
The Court did not grant the Petitioners’ request that political parties that had not participated in the previous election can nominate presidential and vice-presidential candidates. It held that, based on Article 222 of the Election Law, such nomination is based on the acquisition of House (DPR) seats or national valid votes in the previous election of House members.
Justice Arief continued that this does not obstruct the Petitioners’ constitutional rights as political parties to participate in nominating presidential tickets because they can still join a political party or a coalition thereof that have met the presidential threshold. “[The Court] declares the Petitioners’ petition inadmissible,” said Chief Justice Anwar Usman reading out the verdict.
Concurring, Dissenting Opinions
Deputy Chief Justice Saldi Isra reaffirmed his legal opinion on the judicial review of the presidential threshold in previous decisions. In his dissenting opinion, he stated that the Court should be able to protect the constitutional rights of political parties participating in the general election to propose a pair of presidential and vice-presidential candidates.
He also considered several things related to the subject matter of the petition. First, the Petitioners’ perspective was inconsistent with Article 6A paragraph (2) of the 1945 Constitution, which does not require a presidential threshold. Second, the Petitioners can justify the threshold of at least 20% of the total House seats or 25% of the nationally valid votes as long as it continues to provide opportunities to political parties or party coalitions that the KPU have certified as participants in the general election. Third, the Petitioners also continued to justify or accept that the percentage is derived from the results of the previous general election.
Considering those three points, Justice Saldi believed the Petitioners was trying to find a loophole so that they could still propose presidential tickets in the 2024 Election. Given that similar petitions had been rejected by the Court, the attempt to find a loophole was understandable. However, because some of the interpretations they requested could be contradictory to Article 6A paragraph (2) of the 1945 Constitution, the Petitioners’ petition could only be granted or be declared legally reasonable in part, as long as the norm was interpreted as “The presidential and vice-presidential candidate are proposed by a political party or a coalition of political parties participating in the general election before the implementation of the general election.” For this reason, he believed the Court should have granted the Petitioners’ petition in part.
Meanwhile, Constitutional Justice Suhartoyo held a concurring opinion that the requirement to participate in the previous election is not related to the determination of the threshold but is necessary to fulfill the principles of existence, accessibility, and recognition as well as approval of the party concerned by the community as one of the instruments in endorsing presidential tickets, which can only be measured by the quality of the party in the previous elections. Based on these reasons, he argued that Petitioner I did not have legal standing and therefore the constitutionality issue of the norm was not relevant to consider. However, he believed that Petitioner II and Petitioner III had legal standing in the case, being eligible voters.
Labor Party Challenges Provisions on Presidential Threshold
Labor Party Affirms Reason behind Petition against Presidential Threshold
At the preliminary hearing on Wednesday, August 23, Petitioner I alleged that the Labor Party had been disadvantaged by the threshold imposed on political parties or coalition of political parties when proposing presidential tickets. They also alleged that no political party or party coalition participating in the election that had fulfilled the provision of Article 222 of the Election Law reflected, fought for, or had goals in line with their ideas. As a political party that focuses on the issues of labor, agriculture, environment, indigenous peoples, the Labor Party aspires to realize a welfare state, which is based on people’s sovereignty, employment, eradication of corruption, and social security.
To meet the threshold, a party or coalition must have obtained at least 20% of the total number of House of Representatives (DPR) seats or 25% of the national valid votes. Based on the previous legislative elections, the Prosperous Justice Party (PKS) only obtained 8.21%, while the Democratic Party only 7.77%, and even the two combined did not meet the provisions of Article 222 of the Election Law.
Meanwhile, Petitioner II was once appointed by the Labor Party as a House legislative candidate from the Central Kalimantan electoral district for the 2024 Election. As a result of the election system under the provisions of Article 222 of the Election Law, he would potentially suffer losses if residents in his electoral district, his supporters, and his potential constituents asked why his party joined a coalition that supports the Job Creation Law. Meanwhile, Petitioner III had to drop out of legislative race for the 2024 Election because it would be impossible for the Labor Party to join any coalition of parties that support the Job Creation Law, which it rejects.
The Petitioners also requested that the Court be able to hand down a decision before October 19 to provide sufficient time for the Petitioner, the KPU (General Elections Commission), and relevant agencies to make the necessary adjustments to the results of the a quo decision. Meanwhile, in their petitum, they requested that the Court declare Article 222 of the Election Law unconstitutional and not legally binding if not interpreted as “The requirement to propose Candidate Pairs does not apply to Political Parties Participating in Election that have never participated in the previous elections for House members.”
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
Translator : Tahlitha Laela/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.
Thursday, September 14, 2023 | 15:23 WIB 24