Head of the Law and Human Rights Body of the central executive board of PKB Anwar Rachman testifying on behalf of PKB as a Relevant Party at a judicial review hearing of the Election Law, Wednesday (10/23/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — The Great Movement Party (Gerindra) and the National Awakening Party (PKB) refuted the material judicial review petitions No. 62, 87, 101/PUU-XXII/2024 on the presidential threshold. At the fourth hearing for the case on Law No. 7 of 2017 on General Elections (Election Law), Gerindra and PKB testified as Relevant Parties. Head of the Law and Human Rights Body of PKB’s central executive board (DPP) Anwar Rachman testified on behalf of PKB while legal counsel Munathsir Mustaman did so for Gerindra.
Anwar Rachman stressed that the petition requesting the Court to annul the entire Article 222 of the Election Law is groundless. It would lead to legal uncertainty because there is no provision regulating the procedure for nominating presidential tickets. In reference to Article 221 of the Election Law, there is no clear criteria on the legitimacy of political parties to nominate presidential tickets.
“The Petitioners’ request to the Court to annul Article 222 of the Election Law, [which stipulates] that presidential tickets be nominated by political parties or coalitions thereof that meets the requirement of DPR seats, must be rejected because they did not offer an alternative to replace the threshold, and this would lead to legal uncertainty in every presidential election,” Anwar said at the hearing on Wednesday, October 23, 2024 in the plenary courtroom.
He argued that the petition does not have clear theory and rationale and the Petitioners also did not provide a concrete alternative to resolve the issue.
“PKB is of the opinion that if the Petitioners’ a quo was granted by the Court, in the 2029 presidential election there would be more presidential candidates, even more than 17, because each political party would nominate their own. This would of course need a lot of energy, mental effort, time, and expenses, and could potentially lead to chaos and disturbances in the community,” Anwar emphasized.
“As such, the Petitioners’ arguments are baseless and that the Petitioners’ a quo petition should be rejected or at least dismissed,” he stressed. The presidential threshold is the legislatures’ jurisdiction, and PKB leaves is to them to decide.
Strengthening Government Stability
Meanwhile, Gerindra’s legal counsel Munathsir Mustaman testified that Gerindra—which participated in the general election—has complied with the presidential threshold provisions from 2009 to 2024. Parties benefit from the threshold, as it serves as a guideline in determining the minimum percentage of votes required for the election of a presidential candidate. It encourages parties to try harder to meet the specified percentage in order to support their best presidential and/or vice presidential candidates in the general election.
Regarding the prerequisite of political party support in parliament, the presidential threshold is to strengthen the stability of the presidential government in a multiparty system. This provision is designed to maintain checks and balances between the parliament and the President. In governance, balance between the legislative and executive branches is very important so that no one power dominates completely. This principle of checks and balances is an essential element set out in the Constitution to ensure an effective separation of powers.
Munathsir also emphasized that Article 222 of the Election Law on the presidential threshold is not discriminatory. The addition of this threshold does not potentially eliminate alternative presidential and vice presidential candidates. The article is a concrete norm elaborating Article 6A paragraph (2) of the 1945 Constitution, and is an open legal policy delegated by Article 6A paragraph (5) of the 1945 Constitution.
“Therefore, the provision does not conflict with Article 28J paragraph (2) of the 1945 Constitution, because it substantially does not violate the principles of morality, rationality, or intolerable injustice as stipulated in Article 28J paragraph (2) of the 1945 Constitution,” said Munathsir.
Meanwhile, the Government, represented by Subcoordinator for Political, Legal, and Security Affairs I Syarmadani, stated that the presidential threshold is a requirement for the nomination of the president and vice president. The urgency of the presidential threshold is to strengthen the presidential system. The application of the presidential threshold in general elections can produce up presidential and vice-presidential candidates with strong support. President and vice president with a large support in parliament means a stable and effective government, which strengthens the presidential system.
The Government asserted that the presidential threshold is for effective governance. If it is not applied, it is possible that the elected president and vice president would only have support from a party or coalition of parties with few seats in parliament.
“If that happened, the president and vice president as the executive would likely experience difficulties in running the government because they could potentially face challenge from the majority coalition in parliament,” Syarmadani said.
The presidential threshold as stipulated in Article 222 of Law No. 7 of 2017 stipulates that the presidential tickets be endorsed by a political party of coalition thereof that participates in the election that has at least 20% of the total seats in the DPR or obtaining 25% of the valid national votes in the previous democratic, direct, public, free, confidential, honest, and fair DPR election, thus the party’s achievement of these requirements is obtained through a democratic process left to the sovereign voters.
Syarmadani explained that this proves whether the party that proposes the presidential tickets has broad support from voters, after all, the requirement for party support is an initial support. Meanwhile, the actual support will be determined by the results of the presidential election.
Open Legal Policy
Syarmadani also stated that the norm being reviewed is substantially no different from that the Court have previously reviewed and decided. The Court has affirmed its view that Article 222 of Law No. 7 of 2017 on the presidential threshold percentage is the legislatures’ open policy.
“Article 6A paragraphs (2) and (5), as well as Article 22E paragraphs (2) and (6) of the 1945 Constitution states that the implementation of the presidential election and the general election shall be further regulated by Law, thus the regulation of the presidential election in the Law is an open legal policy,” he explained.
He also mentioned that the legal bases used in this petition, i.e. Article 1 paragraphs (2) and (3), Article 6A paragraphs (2) and (3), Article 22E paragraph (1), Article 27 paragraph (1), Article 28C paragraph (2), and Article 28D paragraphs (1) and (3) of the 1945 Constitution, have been the touchstones in previous petitions that have been decided by the Court. Therefore, in accordance with Article 60 paragraph (2) of the Constitutional Court Law and Article 78 paragraph (2) of the Constitutional Court Regulation No. 2 of 2021 on the Procedure in Judicial Review of Laws.
Also read:
Four Students Challenge Limits of Open Legal Policy and Presidential Threshold
Four Students Revise Petition on Open Legal Policy and Presidential Threshold
In case No. 62/PUU-XXII/2024, Enika Maya Oktavia and several other students of the Sharia and Law Faculty of the State Islamic University (UIN) Sunan Kalijaga argue that they have suffered constitutional impairment due to the enforcement of the provision on the presidential threshold, which requires presidential tickets to rally support from political parties. They believe this has harmed democracy as it restricts their right to elect a president whose political views align with theirs or restricts their political support for a presidential ticket.
Also read:
Lecturers Request to Review Presidential Threshold Requirements
Four Lecturers Propose New Interpretations of Presidential Threshold
Meanwhile, in case No. 87/PUU-XXII/2024, former Bawaslu (Elections Supervisory Body) chairman Muhammad, Dian Fitri Sabrina, S. Muchtadin Al Attas, and Muhammad Saad—who are all lecturers and election activists—argue that the provisions on threshold makes only the election elite who secured high number of votes in the previous election have the right to nominate presidential and vice-presidential candidates. These provisions have restricted political parties participating in the election who do not want form any coalition but did not win a high percentage of votes.
Also read:
Election Observers Challenge Presidential Threshold
Presidential Threshold Considered Ignoring Vote Distribution
The Petitioners of case No. 101/PUU-XXII/2024)—the Network for Democracy and Electoral Integrity (Netgrit) represented by Hadar Nafis Gumay as well as Titi Anggraini (Petitioners I and II)— believe the purpose of the presidential threshold is inconsistent with the empirical facts and its destructive impacts on the presidential system, which is against Article 22E paragraph (1) of the 1945 Constitution.
In their petitum, the Petitioners request that the Court interpret Article 222 of the Election Law as, “A Presidential Candidate Ticket shall be nominated by a Political Party or a Coalition Contesting in an Election that has seats in the DPR and/or a Coalition of Political Parties Contesting in the Election that does not have any seat in the DPR consisting of at least 20% (twenty percent) of all the Political Parties Contesting in the Election of members of the DPR” or to declare it conditionally constitutional to apply on the 2029 election and the elections after as long as the following changes to the provision have been made: “a. A Presidential Candidate Ticket shall be nominated by a Political Party or a Coalition Contesting in an Election that has seats in the DPR; and b. A Presidential Candidate Ticket shall be nominated by a Coalition of Political Parties Contesting in the Election that do not have any seat in the DPR; and c. A Presidential Candidate Ticket shall be nominated by a Coalition of Political Parties Contesting in the Election that do not have any seat in the DPR with a threshold set by the legislatures.”
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Raisa Ayuditha Marsaulina
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.
Wednesday, October 23, 2024 | 14:20 WIB 124