Yance Arizona testifying as an expert for the Petitioners at a material judicial review hearing of the Election Law, Wednesday (11/13/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Presidential threshold is no longer in line with the principle of open legal policy, said law lecturer of Gadjah Mada University Yance Arizona at a material judicial review hearing of Law No. 7 of 2017 on General Elections (Election Law) on Wednesday, November 13, 2024 in the plenary courtroom. The session took place for three petitions: No. 62, 87, 101/PUU-XXII/2024.
As an expert for the Petitioners of case No. 62/PUU-XXII/2024, Yance explained that in several decisions, the Constitutional Court has determined at least 11 criteria for an open legal policy including not violating morality, not violating rationality, and not causing intolerable injustice. In terms of the presidential nomination threshold, the Court has observed that the provision is contrary to the principle of open legal policy permitted by the 1945 Constitution.
Next, Yance mentioned that in Decision No. 116/PUU-XXI/2023 on the parliamentary threshold, the Court held that the determination of a 4-percent threshold was not based on methods and arguments that can be adequately proven, so it does not fulfill the principle of rationality.
“For example, in Decision Number 116/PUU-XXI/2023 related to the review of the parliamentary threshold provision, the Court considered that the determination of the 4% parliamentary threshold was not based on adequate methods and arguments that could be proven. And the parliamentary threshold provision also caused vote disproportionality in the implementation of a proportional electoral system. In addition, the number of votes that cannot be converted into seats has harmed the principle of popular sovereignty guaranteed in the Constitution,” Yance explained.
Furthermore, he continued, a threshold of 20% of the number of seats or 25% of valid votes for the nomination of president and vice president is also considered not based on rational methods and arguments. This raised questions about how these provisions can be considered appropriate bases for an effective presidential system.
“Similarly, in Constitutional Court Decision No. 60 of 2022, which changed the threshold for regional head candidacy, the Court considered that Article 40 paragraphs (1) and (3) of the Election Law were not in accordance with the principles of democratic elections and caused intolerable injustice for political parties in proposing regional head candidate pairs. The provision of the presidential and vice-presidential nomination threshold, which is based on the results of the previous election, is also considered eliminating the rights of new political parties participating in the simultaneous legislative- presidential election,” Yance explained.
PKN’s and Perindo’s Testimonies
At the same hearing, two political parties testified: Nusantara Awakening Party (PKN) and United Indonesian Party (Perindo). Both considered the presidential threshold unconstitutional. Moin Tualeka, representing PKN, emphasized that the acquisition of seats from at least 20 percent of the total number of DPR seats or 20 percent of the national valid votes in the previous DPRD elections is very contrary to Article 6A paragraph (2), Article 22E paragraph (1), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution and does not have binding legal force to the extent that it does not protect and provide equal rights for election participants including parties participating in the presidential election.
Meanwhile, Perindo, represented by Ferry Kurnia, said that in the history of our legal politics since the 2004 general election, 2009 general election, and even the 2024 general election, there has been a tug of war related to the presidential threshold. Therefore, the determination of this threshold should not be a short-term bargain between parties, but should be interpreted as a mechanism that we must produce long-term, including how we build a coalition of political parties.
“And I think it is very important that political parties organize the coalition naturally and strategically according to their interests without any strengthening of the structural mechanism,” he explained.
He argued that the presidential threshold inhibits the nomination process. This should encourage the consistency of presidential nominations with the Constitution and respect for political parties that have struggled to become election participants. What is indeed important in the context of the electoral process or its electoral dimension is that every political party undergoes administrative and factual verification process.
Also read:
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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, November 13, 2024 | 17:36 WIB 57