An expert from the Constitutional Court (MK), Didik Supriyanto, while attending the hearing to hear Witness/Expert Testimony for the 2024 Gorontalo Legislative Election Results Dispute (PHPU) on Monday (05/27) in Panel 2 Courtroom. MKRI/Teguh.
JAKARTA (MKRI) — The Constitutional Court (MK) held another hearing on the 2024 Election Results Dispute (PHPU) for Members of DPR (House of Representatives), Provincial and Regency/City DPRD (Regional Legislative Council) filed by the Prosperous Justice Party (PKS) on Monday (5/27/2024). In connection with case no. 125-01-08-29/PHPU.DPR-DPRD-XXII/2024, the Court presented Didik Supriyanto as an expert to explain the basis for calculating the 30% women's representation requirement in political party seats in the 2024 elections.
Before Panel 2 Justices, presided over by Deputy Chief Justice Saldi Isra, along with Constitutional Justices Ridwan Mansyur and Arsul Sani, Didik stated that universal suffrage necessitates public space for women in politics through gender-based quotas. This ensures full equality among citizens. Article 245 of Law 7/2017 mandates that candidate lists include at least 30% women, reinforcing the need for consistent compliance to increase female representation in parliament.
However, according to Didik, the legislative election results still fall short of descriptive representation, as the number of female parliamentarians does not match the proportion of women in the population. Since the 1999 elections, efforts have been made through various laws, such as Article 13(3) of Law 31/2002 and Articles 2(2) and 2(5) of Law 2/2008. Additional provisions are found in Law 12/2003, Law 10/2008, Law 8/2012, and Law 7/2017.
"All these regulations consistently emphasize the 30% women's representation requirement. However, in the 2024 elections, the General Elections Commission Regulation (PKPU) interpreted the 'at least 30% women's representation' clause as allowing for more or less than 30%. Consequently, in districts with 4, 7, 8, or 11 seats, this interpretation prevents achieving the 30% threshold. This discrepancy causes problems for political parties, as it does not align with the Election Law. The implementation of PKPU 10/2023 has led to numerous violations and neglect. This is evidenced by the Supreme Court's approval of a judicial review and Bawaslu's declaration that KPU (General Election Commission) committed administrative violations," said Didik.
Electoral Legal Certainty Implications
"Meanwhile, Agus Riwanto, a lecturer from the Faculty of Law at Sebelas Maret University (UNS) and an expert witness for the Respondent (KPU), addressed Supreme Court Decision No. 24 of 2023 on the Material Review of PKPU 10/2023 (Nomination of 30% Women in Each Electoral District for DPR/DPRD), impacting election scheduling and its legal certainty.
Article 8(2) of PKPU 10/2023 states, 'In the event that the calculation of 30% (thirty percent) of the number of Female Prospective Candidates in each Electoral District yields a fractional number, if the two decimal places after the comma are valued: a. less than 50 (fifty), the calculation result shall be rounded down; or b. 50 (fifty) or more, the calculation result shall be rounded up.' Agus added that this provision incorporates a new norm as decided by the Supreme Court, eliminating the need for authorized officials to revise PKPU 10/2023. Therefore, the KPU only needs to enforce it through its authority.
Based on the KPU's compliance with affirmative action for women's representation, the KPU has sent letters to several parties, including political party leaders, urging compliance with the Supreme Court's decision on the requirement for female representation in the 2024 legislative elections; sent letters to the Director-General of Legislation at the Ministry of Law and Human Rights to harmonize the draft PKPU; sent letters to the leaders of the House of Representatives Commission II to schedule a hearing for the new PKPU draft; and sent a letter to the Supreme Court requesting a fatwa regarding the Supreme Court's decision.
"Based on these four legal actions, the KPU has exercised its authority in the candidate nomination process for members of the DPR and provided political parties with the opportunity to rectify the representation requirements of their party members as per the Supreme Court's decision," said Agus.
Incomplete as Legal Norm
Agus also noted that the KPU did not violate the provision requiring 30% female representation, as stipulated in Article 245 of Law 7/2017. This norm, in reality, did not consider the essence of affirmative action in the context of tight election scheduling. In other words, the scheduling cannot be advanced or postponed, especially concerning the subsequent inauguration of elected council members.
"Article 245 constitutes an incomplete legal norm, as it merely commands without specifying sanctions for political parties failing to meet its requirements. Thus, the political injustice against women was inherently present in the minds of electoral lawmakers, rendering this provision legally flawed from its inception. Furthermore, the implementation of this Supreme Court Decision cannot be retroactive. It was issued on August 29, 2023, and received by the KPU only on September 11, 2023, coinciding with the nomination period and public response to the Temporary Voter List (DCS). Here, the KPU had already established the DCS, a phase integral to the nomination process, inseparable from the announcement and stipulation of the Final Candidate List (DCT). Therefore, the Supreme Court's Decision poses challenges for the KPU's compliance. If reversed, it would disrupt other electoral stages and interfere with polling schedules, the inauguration of the DPR, and even the inauguration of the President. This could result in serious constitutional violations," said Agus.
Political Party Testimony
During this hearing, PKS presented two witnesses, Upik P. Nadjamuddin and Nur Entin Lasabuda. Upik's testimony described the objection process their party underwent during the national-level recapitulation on March 9, 2024.
"I appeared as a mandated witness and raised objections regarding the 30% female representation, specifically for the Gorontalo 6 Electoral District, as that was the only available data. We were questioned why the objection was raised at the central level instead of the provincial level. We met with the Chairperson of the Central KPU and expressed the longstanding issue of the lack of clarity from the Provincial KPU regarding parties not meeting the 30% quota. The Chairperson of the Central KPU received our objection positively and noted it in the minutes. Our objection statement was signed by witnesses and the Chairperson of the Central KPU," said Upik.
“Pada bahasan terakhir tidak ada penyelesaian, apakah putusan MA ini akan dilaksanakan untuk penyelenggaraan pemilihan saat ini atau nanti? Jawaban mereka, belum bisa mengambil kebijakan karena belum ada Putusan KPU. Pada diujung pertemuan, hanya disebutkan sebaiknya parpol mengikuti ketentuan yang telah diputuskan oleh MA tersebut. sehingga kami awalnya belum memenuhi syarat keterwakilan itu, awalnya anggota kami ada 8 anggota laki-laki dan 2 perempuan, kemudian kami lakukan perbaikan sehingga ada anggota laki-laki sejumlah 7 orang dan perempuan sejumlah 3 orang. Adapun verifikasi ini dijadwalkan per partai, jadi tidak ada informasi apakah partai lainnya memenuhi atau tidak syarat dari afirmasi ini,” sampai Nur.
"In the final discussion, there was no resolution on whether this Supreme Court Decision would be implemented for the current or future elections. Their response was that they could not make a decision until there was a decision from the KPU. At the end of the meeting, it was only mentioned that parties should adhere to the Supreme Court's decision. Initially, we did not meet the representation requirement; our party had 8 male members and 2 female members. We then made adjustments so that there were 7 male members and 3 female members. Verification was scheduled per party, so there is no information on whether other parties met the requirements of this affirmative action," said Nur.
Also read: KPU Clarifies Issues Regarding Women's Representation in Gorontalo 6
In the Preliminary Hearing on Friday (5/3/2024), PKS stated that based on the comparison of vote counts and the number of seats, considering at least 30% female representation, the National Awakening Party (PKB), the Great Movement Party (Gerindra), the National Democratic Party (NasDem), and the Democratic Party were among the political parties not meeting the 30% female representation in the Gorontalo 6 Electoral District. Thus, the Petitioner deemed the party's vote counts and legislative candidate nominations contrary to Article 248 of the Election Law. Moreover, the Supreme Court, in Decision No. 24P/HUM/2023, affirmed the same. However, the Respondent failed to enforce this decision by still approving the political parties alongside the administrative documents of legislative candidates who did not meet the at least 30% female representation. To address this, the Petition lodged objections during the Open Plenary Meeting for the National-Level Vote Count Recapitulation using a special Model D form. Out of 18 political parties, 5 met the 30% female representation requirement in the Gorontalo 6 Electoral District, namely the Indonesian Democratic Party of Struggle (PDI-P), the Party of Functional Groups (Golkar), the United Development Party (PPP), and PKS at 36.36%; and the National Mandate Party (PAN) at 45.45%. Thus, the presence of 4 parties not meeting the 30% female representation requirement affected the Petition’s seat allocation.
Consequently, the Petitioner requests the Court to disqualify the 4 political parties failing to meet the at least 30% female representation quota across the Gorontalo 6 Electoral District for membership in the Gorontalo Provincial DPRD Gorontalo 6 Electoral District. Furthermore, the Court is also asked to stipulate the correct vote counts and number of seats meeting the at least 30% female representation for the Petitioner to fill the membership in the Gorontalo Provincial DPRD Gorontalo 6 Electoral District, with the Prosperous Justice Party (PJS) securing 7,343 votes or 36.36% and acquiring 1 seat.
Also read:
PKS Challenges the 30% Requirement for Women's Representation in Gorontalo 6
Author: Sri Pujianti.
Editor: Nur R.
Translator: Naomi Andrea Zebua
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.
Monday, May 27, 2024 | 14:17 WIB 65