Petitioners of case no. 101/PUU-XXII/2024 revising their judicial review petition of Article 222 of Law No. 7 of 2017 on General Elections (General Election Law), Thursday (22/08/2024). Photo by MKRI/Bayu.
JAKARTA, MKRI – Petitioners of case no. 101/PUU-XXII/2024 revised their petition seeking judicial review of Article 222 of Law No. 7 of 2017 on General Elections (General Election Law) regarding the implementation of the presidential threshold. Petitioners added posita or petition reason by stating that the presidential threshold determined by Article 222 of the General Election Law ignores vote distribution as stipulated in Article 6A paragraph (3) of the 1945 Constitution of the Republic of Indonesia.
“The population inequality based on the region distribution in Indonesia shows the importance of distribution in more than half of the province in Indonesia,” Petitioners’ legal counsel Ahmad Alfarizy said before the panel of justices led by Deputy Chief Justice Saldi Isra, accompanied by Justice M. Guntur Hamzah and Justice Arsul Sani on Thursday, August 22, 2024.
Alfarizy explained that Article 222 of the General Election Law has resulted in the obstruction of the representation of cultural, political, geographical, and demographical diversity as well as women's representation in the presidential election, so it contradicts Article 6A paragraph (3) and Article 22E paragraph (1) of the 1945 Constitution. In the Indonesian context, in addition to gaining the absolute vote majority of 50%+1, the presidential election winner is also determined by the distribution of votes, namely obtaining a minimum of 20% votes in more than half of the provinces.
Article 6A paragraph (3) of the 1945 Constitution of the Republic of Indonesia reads, “The pair of candidates for President and Vice President who get more than fifty percent of the total votes in the general election with at least twenty percent of the votes in each province spread across more than half of the provinces in Indonesia, are inaugurated as President and Vice President.”
Thus, the requirements for electability in presidential elections in Indonesia must accumulatively be: (1) get 50% + 1 vote; and (2) get at least 20% of the votes in half of the provinces in Indonesia. If these requirements are not met, then the two pairs of candidates who get the first and second highest number of votes participate in a second election, and the one who gets the most votes will be inaugurated as president and vice president.
The Petitioners said that the problem is that Article 222 of the Election Law has, in fact, had a major effect in hindering the fulfillment of the representation of cultural and political diversity in presidential elections in Indonesia. The enactment of the article, which limits the opportunity for political parties to nominate the president and vice president, increases and becomes a major factor in the forced marriage of candidacy, which results in the potential number of presidential and vice presidential candidates being only two pairs in an election. This is reflected in the 2014 and 2019 elections where there were only two pairs of candidates contesting.
There are at least two factors that drive the determination of the presidential threshold to the potential limitation of the number of candidate pairs to only two in a presidential election. The first factor is the high threshold of 20% of the total seats or 25% of the total valid votes, which forces parties to enter into unnatural coalitions just to reach the threshold, encouraging the strong centralization of support to only two candidates. With the logic of the threshold, the greater the number of seats and votes of a party, the stronger its position among other parties.
In a given calculation, the chances of only two candidates are very high because parties that do not have enough coalitions must be forced to join coalitions that have been formed and meet the threshold. If the threshold is removed for parliamentary parties, and non-parliamentary political parties can nominate without being tied to a parliamentary party, then the chances of more than two candidates will be greater.
The second factor is that one of the strong bases for the implementation of the presidential threshold has always been the issue of simplifying the number of political parties. So far, this rationale has been considered very relevant to Indonesia's multiparty system. However, without realizing it, the idea of simplifying the number of political parties through the presidential nomination threshold by itself also has an impact on the fewer nominating coalitions that are formed. As a result, there will be fewer candidate pairs participating in the presidential election. With this sequence, from the beginning, the presidential threshold will have a logical consequence on the limited number of presidential candidates. Thus, the opportunity for only two candidate pairs in the future, such as the 2014 and 2019 presidential elections, has great potential to be repeated in the future.
In the condition that since the beginning of the nomination, there are only two pairs of candidates determined by the KPU, the Court has emphasized that the requirement of 20% vote distribution in more than half of the provinces in Indonesia is ignored based on Decision No. 50/PUU-XII/2014 and Decision No. 39/PUU-XVII/2019. Even though in 2014 and 2019, the vote distribution requirement was still met, it does not mean that in the future, in the case of only two candidate pairs, the 20% vote distribution requirement in more than half of the provinces will not be met.
“This means that as long as the concept of the nomination threshold remains as in Article 222 of the Election Law, the chances of not fulfilling the 20% vote distribution in more than half of the provinces in Indonesia will be very high. In this condition, the focus on Java Island in the future will continue to exist and not be reduced,” Alfarizy said.
Also read: Election Observers Challenge Presidential Threshold
The Petitioners of case No. 101/PUU-XXII/2024 are the Democracy and Election Integrity Network Foundation (Netgrit), represented by Hadar Nafis Gumay (Petitioner I) and individual Titi Anggraini (Petitioner II). According to the Petitioners, there is an inconsistency between the purpose of the presidential threshold and the empirical facts in the field and the destructive impact on the presidential system, which is contrary to the 1945 Constitution of the Republic of Indonesia.
“The presidential threshold does not in fact simplify the selection of presidential candidates and in fact makes political parties forced to fulfill the requirements as determined by the law a quo,” said the Petitioners' legal counsel, Nur Fauzi Ramadhan, in the preliminary examination session on Wednesday, August 7, 2024.
In their petitum, the Petitioners request that Article 222 of the Election Law be interpreted as, “Candidate pairs are proposed by: a. Political Parties or a coalition of political parties participating in the elections that have seats in the DPR; b. A coalition of political parties participating in the elections that do not have seats in the DPR and political parties participating in the elections that do not have seats in the DPR; or c. A coalition of political parties participating in the elections that do not have seats in the DPR with at least 20% (twenty percent) of the number of political parties participating in the elections.” Alternatively, the Petitioners request the Court to declare Article 222 of the Election Law as conditionally constitutional to be applied in the 2029 General Election and subsequent elections as long as changes have been made with the following provisions: a. Candidate Pairs are proposed by Political Parties and/or coalitions of Political Parties participating in the election that have seats in the DPR; b. Candidate Pairs are proposed by coalitions of Political Parties participating in the election that have seats in the DPR and Political Parties participating in the election that do not have seats in the DPR; and c. Candidate Pairs are proposed by coalitions of Political Parties participating in the election that do not have seats in the DPR with a threshold determined by the legislator.
Before concluding the hearing, Chief Justice Suhartoyo said that this case would be brought to the Justices’ Deliberation Meeting (RPH) to be discussed further. In addition, a number of pieces of evidence submitted by the Petitioners were also validated.
Author: Mimi Kartika.
Editor: Nur R.
PR: Tiara Agustina.
Translator: Rizky Kurnia Chaesario
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, August 22, 2024 | 17:33 WIB 1896