The Labor Party’s proxy Said Salahudin testifying as a Relevant Party at a judicial review hearing of the Election Law virtually, Wednesday (10/30/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — Three political parties contesting in the 2024 general election—Golkar (Party of Functional Groups), Hanura (People’s Conscience Party), and the Labor Party—testified at a hearing on the provision on presidential threshold under Article 222 of Law No. 7 of 2017 on General Elections (Election Law). The norm is being challenged in three material judicial review petitions: No. 62, 87, 101/PUU-XXII/2024. The hearing took place on Wednesday, October 30, 2024 in the plenary courtroom.
Before Chief Justice Suhartoyo and the other eight constitutional justices, the Labor Party’s proxy Said Salahudin stated that Article 222 of the Election Law is against electoral justice as it does not give all parties participating in the election an equal right to nominate candidates.
“The Labor Party’s opinion is in line with the constitutional justices’ dissenting opinion in Decision No. 53/PUU-XV/2017, which emphasizes that the a quo article is clearly harmful and far removed from the sense of justice for political parties that are not given the opportunity to nominate presidential and vice-presidential candidates simply for not having seats or votes in the previous election,” Said remarked.
The Labor Party believes that the threshold should be reconstructed due to three reasons. First, it must be interpreted as a condition for the election of presidential tickets, not a requirement for nomination. This is based on the common constitutional practice in countries that applies a presidential threshold.
Second, Said added, the Labor Party argues that the president threshold, which is based on votes or House of Representatives (DPR) seats, is an anomalous practice. Theoretically, a president’s legitimacy in a presidential system is not determined by the parliament’s political formation resulting from the legislative elections. The presidential and parliamentary institutions in the presidential system are two separate institutions that have different bases of legitimacy.
Third, Said continued, the Labor Party also believes that the presidential threshold, which is interpreted as a requirement for nominating the president, is no longer be needed because its purpose to present a simple party system and garner majority support from the parliament for the elected president and vice president would automatically be implemented by the results of the simultaneous election, which serves to strengthen the presidential system.
“Therefore, based on the above elaboration, the Labor Party believes the presidential threshold for the Indonesian context should refer to the provision of Article 6A paragraphs (3) and (4) of the 1945 Constitution of the Republic of Indonesia, which stipulates that the president and vice-presidential candidates who get more than fifty percent of the total votes in a general election, and 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,” Said emphasized.
Chance for Parties to Nominate Presidential Candidates
Meanwhile, Hanura’s proxy Steven Alves Tes Mau argued that this threshold clearly limits the fulfillment of the constitutional rights of political parties participating in the election that have obtained valid votes in the elections even though they do not get seats in the House. It also reduces the value of democratic elections because valid votes of political parties are wasted.
Tes Mau argued that a democratic election system should allow all political parties participating in the election—both those that have seats in the House and those that do not—to propose presidential and vice-presidential candidates. This is in order to respect the purity of the electoral votes. There should also be alternative options for the community.
Open Legal Policy
Golkar presented a different view. Its legal counsel, Daniel Febrian Karunia Herpas, said the open-list proportional system is the legislatures’ open legal policy. Citing Constitutional Court Decision No. 51, 52, and 59/PUU-VI/2008, Daniel argued that the Constitutional Court does not have the authority to annul provisions that are open legal policies, unless they violate the principles of morality, rationality, or reflect intolerable injustice.
He added that the threshold for nominating the president and vice president is also an open legal policy based on Article 22E paragraph (6) of the 1945 Constitution. He referred to previous Constitutional Court decisions that viewed the threshold as part of the legislatures’ political policy, such as Decisions No. 16/PUU-V/2007 and No. 52/PUU-X/2012 on parliamentary threshold as well as Decisions No. 55/PUU-XVII/2019 and No. 16/PUU-XIX/2021 on election simultaneity. Golkar believes the threshold encourages the formation of strong coalitions in parliament, which in turn supports the president to carry out programs without excessive conflict with the legislatures. With political stability and effective governance, the resulting policies can be more consistent in reflecting public aspirations. So, although it limits the number of candidates, this threshold can create a pathway for a more stable, effective government, where the people are able to fight for their interests. Thus, based on these arguments, Golkar appealed to the constitutional justices to reject the entire petition.
Presidential Candidates Screening
At the hearing, the House also presented its testimony through House Commission III member Martin Daniel Tumbelaka. He emphasized that the purpose of the presidential threshold is to get qualified presidential and vice-presidential candidates where political parties and a coalition of political parties that are responsible for the candidates they nominate make the endorsement. The threshold is applied to ensure that the candidates have significant party or public support.
The threshold requirement for presidential candidates are there to filter candidates who have minimal support and to ensure that qualified candidates with significant support can advance.
In addition, the presidential threshold will force political parties to consolidate politically, thus strengthening the government and building an effective one.
“Therefore, political stability can be realized through strong support, so presidential candidates are expected to run the government and state policies more effectively,” Tumbelaka said.
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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.
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.
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 30, 2024 | 14:40 WIB 644