Sarip, a constitutional law lecturer at Muhammadiyah University of Cirebon, taking oath before testifying as the Petitioner’s expert at a judicial review of the Election Law, Tuesday (1/23/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The inclusion of an upper threshold for political parties who intend to propose presidential tickets in Article 222 of Law No. 7 of 2017 on General Elections (Election Law) is necessary. It serves as a form of preventive justice in the presidential election when there is an empty column or an effort to reach acclamation.

This statement was made by Sarip, a constitutional law lecturer at Muhammadiyah University of Cirebon, who was presented by the Petitioner of case No. 129/PUU-XXI/2023, advocate Gugum Ridho Putra, at another material judicial review hearing of the Election Law on Tuesday, January 23, 2024 in the plenary courtroom. The hearing was chaired by Chief Justice Suhartoyo.

Sarip revealed as an example what happened during the 2018 of the regional election (pilkada) in Makassar, where an empty column won the mayoral election of Makassar City.

“(The incident) can be a lesson for taking into account provisions on coalition in presidential candidacy by using the law as a tool to predict future events,” he said.

He also said that party coalitions in Indonesia had determined a presidential threshold nearing the minimum threshold, i.e. 20% of the seats in the House of Representatives (DPR) or 25% of valid national votes in the previous election of House members. “There has not been any provision on the upper presidential threshold. This could possibly be the cause for why empty columns exist in elections,” he added.

Sarip further added that, from the perspective of constitutional law theories, Indonesia’s Constitution implements constitutionalism, which promotes limitation of power in the rule of law in order to prevent abuse of power. On that basis, the office of the president and vice president is limited to a fixed five-year term, which can only be extended for 1 (one) term. With the enactment of this principle, the power of party coalitions to endorse presidential tickets in the election must not be without limits. Therefore, the imposition of a minimum threshold of 20% without an upper threshold clearly violates the principle of limitation of power (constitutionalism).

“No difficulties in the practice of coalitions endorsing presidential tickets with an upper threshold have been discovered by experts. Criminal law can be a strong basis for an upper coalition threshold to maintain the sovereignty and justice of Indonesian democracy at the national level,” Sarip explained.

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At the preliminary hearing, the Petitioner conveyed that Article 222 is contrary to Article 1 paragraph (2); Article 6A paragraphs (1), (2), (3), (4), and (5); and Article 28D paragraph (1) of the 1945 Constitution. Article 222 could potentially cause legal uncertainty and allows for a super-dominant coalition that can lock the presidential election to only two candidate pairs or a single candidate pair. Based on this provision, every party or coalition of parties that wants to endorse a presidential ticket must have 20% of DPR seats or have acquired 25% of votes in the previous legislative election. Political parties might form coalitions only to fulfill this minimum requirement for the nomination of president and vice president.

“Article 222 of the Election Law only regulates the lower threshold for [presidential] nomination without regulating the upper limit, which allows parties to form coalition and gathering as many seats and votes as possible without limit. As a result, it could potentially cause two conditions: a coalition of political parties that potentially forms a super-dominant coalition and leaves minority coalitions of smaller parties, so the presidential election is only joined by two pairs of candidates; or the presidential and vice-presidential election could be joined by only a single candidate pair or presidential ticket if one of the two candidate pairs, especially the minority coalition, is disqualified for not meeting the KPU requirements,” the Petitioner explained.

Moreover, he also emphasized that the enforcement of Article 222 of the Election Law, which does not regulate restriction on the presidential ticket nomination, is contrary to the principle of constitutionalism or limitation of power. This is because the lack of a limit means that a party coalition can collect as many seats and votes as possible without any restrictions. The greater the number of seats or votes collected, the greater the coalition’s potential power to form a super-dominant coalition, so there is higher potential of abuse.

For this reason, in his petitum, the Petitioner requests the Court to declare Article 222 of the Election Law unconstitutional and not legally binding if it is not interpreted to mean “A presidential candidate ticket nominated by a coalition of political parties shall not exceed 40% (forty percent) of DPR seats or 50% (fifty percent) of national valid votes in the previous election of members of the DPR.”

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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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