Chief Justice Suhartoyo delivering the verdict of the judicial review of the provision on parliamentary threshold, Thursday (2/29/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) is of the opinion that the parliamentary threshold set at four percent of valid national votes in Law No. 7 of 2017 on General Elections (Election Law) is not in line with the principles of popular sovereignty and election justice, and in violation of legal certainty guaranteed by the Constitution. Therefore, it is constitutional as long as it applies in the 2024 DPR (House of Representatives) election and conditionally constitutional for the 2029 DPR election and subsequent DPR elections.
Such is the Decision No. 116/PUU-XXI/2023 for the case filed by the Association for Elections and Democracy (Perludem), delivered on Thursday, February 29, 2024 in the plenary courtroom.
“[The Court] grants the Petitioners’ petition in part; declare Article 414 paragraph (1) of Law No. 7 of 2017 on General Elections constitutional as long as it remains to apply for the 2024 DPR election and conditionally constitutional for the 2029 DPR election and subsequent elections if the provision on parliamentary threshold and its percentage have been amended based on the determined requirements,” said Chief Justice Suhartoyo delivering the verdict.
Perludem challenged Article 414 paragraph (1) of the Election Law, especially the phrase “which is 4% (four percent) of the national number of valid votes.” The article reads in full, “A political party contesting in a legislative election must reach the electoral threshold, which is 4% (four percent) of the national number of valid votes, in order to be included in the seat allocation for DPR members.” The Petitioner had explained the relationship between the parliamentary threshold and the proportional electoral system. The Petitioner argued that the parliamentary threshold is one of the important variables of the electoral system that would have a direct impact on the conversion of votes into seats. The association asserted that the provision of the parliamentary threshold should not be associated with Article 168 paragraph (2) of the Election Law, which stipulates that elections to elect members of the House, both at the provincial and regency/city levels, shall be conducted with the open-list proportional system. It asserted that the inconsistency had led to uncertainty and the failure to reach the proportional electoral system because the election results were not proportional.
In its legal considerations, delivered by Deputy Chief Justice Saldi Isra, the Court did not find the basis of adequate methods and arguments in determining the percentage number of the parliamentary threshold, including those used in determining at least 4% (four percent) of the total national valid votes as specified in Article 414 paragraph (1) of the Election Law. In fact, referring to the legislatures’ (president and the House) testimonies, the Court did not find a rational basis in determining the percentage number.
Disproportionality
Justice Saldi alsa said the parliamentary threshold clearly has an impact on the conversion of valid votes into the number of DPR seats, which is related to the proportionality of the election results. This means that for the basis of the proportional electoral system, the number of votes obtained by political parties participating in the election is in line with the seats won in parliament, so the election results is proportional. For this reason, the proportional electoral system should minimize wasted votes so that the election results are not categorized as disproportionate.
In its legal considerations, the Court explained that to fulfill the principle of proportionality, for example, in the 2004 election, the wasted votes or votes that could not be converted into seats were 19,047,481 valid votes or around 18% of the national valid votes. Similarly, in the 2019 election, there were 13,595,842 votes that could not be converted into DPR seats or around 9.7% of the national valid votes. Although in the 2014 election there were “only” 2,964,975 votes that could not be converted into DPR seats, or around 2.4% of the national valid votes, factually the number of political parties in the DPR is more than the results of the 2009 and 2019 elections: 10 (ten) political parties.
Justice Saldi added that the empirical fact confirms that there has been disproportionality between votes and the number of political parties in the DPR during the implementation of the parliamentary threshold in the DPR elections. This fact proves that the constitutional rights of voters were not counted on the grounds of simplifying political parties in order to create a strong presidential system supported by effective representative institutions.
“Whereas democracy places the people as the owners of sovereignty as referred to in Article 1 paragraph (2) of the 1945 Constitution, but the parliamentary threshold policy has apparently reduced the people’s rights as voters. The people’s right to be elected is also reduced when they get more votes but do not become members of the DPR because their party does not reach the parliamentary threshold,” Justice Saldi said.
According to the Court, Justice Saldi continued, the determination of the parliamentary threshold percentage, which is not based on adequate methods and arguments, has clearly led to the disproportionality of the election results because the number of seats in the DPR is not proportional to the national valid votes. In fact, in accordance with the legal considerations of the Constitutional Court Decision No. 3/PUU-VII/2009, the legislatures’ authority in determining the parliamentary threshold including its percentage can be justified as long as it does not conflict with political rights, popular sovereignty, and rationality.
“However, factually, these principles have been violated because they have resulted in many votes not being converted into seats in the DPR, thus creating disproportionality in the proportional electoral system. This, whether realized or not, has directly or indirectly harmed popular sovereignty, electoral justice, and fair legal certainty for all election contestants including voters who exercise their right to vote. Based on this, the Court understands the Petitioner’s argument that the parliamentary threshold and/or its percentage were not prepared on the basis of adequate methods and arguments,” Justice Saldi explained.
Also read:
Ummat Party Challenges Parliamentary Threshold
Ummat Party Affirms Petition on Parliamentary Threshold
Parliamentary Threshold Serves to Simplify the Party System
Expert: Parliamentary Threshold Should Be Reviewed
Open Legal Policy
Then, Justice Saldi explained that the Court insists that the parliamentary threshold and/or its percentage are the legislatures’ open legal policy as long as the determination uses adequate methods and arguments. To minimize the disproportionality between valid votes and number of DPR seats, as well as to strengthen the simplification of political parties. This means that the idea of simplifying political parties in the DPR should not clash with the need to maintain proportionality between the election results and the determination of the number of DPR seats.
Therefore, the Court is of the opinion that changes need to be made immediately to the parliamentary threshold as determined by Article 414 paragraph (1) of the Election Law, by taking into account several things. First, it is designed to be used on an ongoing basis; second, changes to the parliamentary threshold including the percentage are still for maintaining the proportionality of the proportional electoral system, especially to prevent large number of votes not converted into DPR seats; third, changes must be for simplifying political parties; fourth, changes have been completed before the start of the 2029 election stages; and fifth, changes involve all groups that are concerned with the general elections by applying the principle of meaningful public participation including involving political parties participating in the elections that do not have representation in the DPR.
Furthermore, Justice Saldi stated that the Petitioner’s argument of the unconstitutionality of Article 414 paragraph (1) of Law No. 7 of 2017 relating to the procedure for determining the parliamentary threshold and its percentage not being based on adequate methods and arguments can be proven. However, the Petitioner’s petitum for the a quo norm to read “Political parties participating in the election must meet a threshold of valid national votes to be included in determining the vote acquisition of DPR members with the following provisions: a. the number 75% (seventy-five percent) is divided by the average electoral district, plus one, and multiplied by the root of the total 127 electoral districts; and b. in the event that the quotient of the parliamentary threshold as referred to in letter a produces a decimal number, it shall be rounded” cannot be granted. This is because it is the legislatures’ policy to further formulate the parliamentary threshold including its percentage. “Thus, the Petitioner’s petition is reasonable according to law in part,” said Justice Saldi.
Also read:
Ummat Party Challenges Parliamentary Threshold
Ummat Party Affirms Petition on Parliamentary Threshold
Inadmissible
At the hearing, the Court also stated that it could not accept the petition by the UMMAT Party, who also challenged the same norm as in Case No. 116/PUU-XXI/2023: Article 414 paragraph (1) of the Election Law. In its opinion read out by Constitutional Justice Daniel Yusmic P. Foekh, the Court stated that based on Decision No. 116/PUU-XXI/2023, Article 414 paragraph (1) of the Election Law has had a new meaning that has been in effect since the pronouncement of the Decision No. 116/PUU-XXI/2023. Therefore, although editorially it is still the same, the meaning of Article 414 paragraph (1) of the Election Law is no longer as stated in the Petitioner’s petition.
“This means that the a quo norm still applies to the 2024 DPR election, but in substance it has undergone a change in meaning based on the Constitutional Court Decision No. 116/PUUXXI/2023. Thus, regardless of whether or not Article 60 of the Constitutional Court Law and Article 78 of the Constitutional Court Regulation No. 2 of 2021 on the procedural law for judicial review of laws were fulfilled by the Petitioner’s petition, the Petitioner’s argument relating to the conditional unconstitutionality of Article 414 paragraph (1) of Law No. 7 of 2017 has lost its object,” said Justice Foekh delivering the legal considerations for Decision No. 124/PUU-XXI/2023.
Author : Utami Argawati/L.A.P.
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.
Thursday, February 29, 2024 | 16:51 WIB 355