Agus Riewanto Fakultas Hukum UNS
By : AGUS RIEWANTO l 16 Mei 2023
The Constitutional Court is convening to decide the application for judicial review on Article 168 paragraph (2) of Law Number 7 of 2017 on General Elections.
The Election Law regulates the open proportional election system by determining elected candidates based on the most votes, which are allegedly contrary to the provisions of Article 22e paragraph (3) of the 1945 Constitution. For the 2024 Election, the Constitutional Court (MK) justices are asked to change the election system into a closed proportional election system by determining selected candidates based on the serial number.
Consistency test
These days, the MK justices are being tested by the public on whether they will be consistent with their old decision, namely the MK’s decision number 22-24/PUU-VI/2008 dated 23 December 2008, which stated that the constitutional election system was an open proportional election system by determining elected candidates based on the most votes.
If examined in depth from the perspective of the constitution, there is not a single norm (article, paragraph, or part of the paragraph) in the 1945 Constitution which regulates the election system. That means the election system is not constitutional. That is why the MK’s decision will be very possible in various forms, depending on the critical power and creativity of the MK justices who are influenced by the reality of the trial and the latest political dynamics.
Watching the hearing at the MK that has presented the parties, namely the petitioner, the respondent and the related parties coupled with the presence of the state administrative laws, political sciences and election experts, and both the pros and cons, convey the equally strong and logical arguments before the MK justices (Kompas, 8/3/2023). So, it seems that it will be difficult for the MK justices to make a decision that is able to accommodate all interests and according to the will of the constitution.
In this case, the Indonesian Democratic Party of Struggle (PDI-P) supports a closed proportional system. The eight political parties, through the general chairmen of their respective political parties, reject the closed election system and still maintain the open proportional election system such as the previous year’s elections. The attitude of these eight political parties is an open resistance aimed at political opponents who are operating to change the 2024 election system (Kompas, 9/1/2023).
More than that, the political reality shows that the current House of Representatives (DPR) is powerful in controlling the performance of the MK justices. The MK justices who made the verdict, which was not the same as the will of the parties in the DPR, certainly would suffer a fate like MK justice Aswanto who was evaluated and removed from his position. This reality will increase the burden and make the MK justices think again if the decision is not in line with the will of the eight political parties. So, if not careful, this MK’s decision could be a disaster for the MK justices.
Meanwhile, from the technical stage of the election, it is currently entering the stage of nominating members of the DPR and Regional Legislative Councils (DPRD) in the General Elections Commission (KPU). This will make the MK justices more careful in making decisions related to changes in the election system because it will potentially disrupt the stages of nomination and determination of candidates by the KPU. If the implementation of the stages of the election is chaotic, or fails, it is certain that the MK justices will be accused of being the culprit.
Hybrid election system
It is probable that the MK’s decision on the request for a judicial review of the Election Law will have a happy ending. So, it could be that the MK’s decision will be the result of creative MK justices, namely the application of the hybrid election system, a la MK justices for the 2024 Election.
Therefore, for the election of the DPR members, the MK could have decided to use a closed proportional election system by determining elected candidates based on the serial number. As for the election of Provincial DPRD and Regency/City DPRD members, the MK may make a decision using an open proportional election system by determining elected candidates based on the most votes.
The verdict saves the Constitutional Court
The MK decision model with the application of the hybrid proportional election system is a decision that is able to accommodate many interests; among others, the MK’s decision using the hybrid election system will make political parties in the DPR certainly happy and benefiting. The MK’s decision will provide an opportunity for central political party administrators to be re-elected. This is because automatically the leadership of the central political party administrators will be placed in the “hat number” (a small serial number); no need to pay for expensive campaigns.
This closed system no longer requires a personal campaign, survey costs, or the cost of political consultants to promote themselves. This closed system only campaigns for political party pictures because the names and photos of the candidate no longer are listed on the ballot paper.
Thus, it is likely that the practice of money politics will decrease dramatically, so there is no more elbowing between candidates in one political party or between different political parties.
The MK’s decision using the hybrid election system will benefit political party administrators in the regions because it still provides free and liberal competition space to compete for seats in the provincial DPRD and regency/city DPRD. Even popular figures, local authorities and local elite relatives will still survive with this system.
The MK’s decision to use the hybrid election system will later contribute to a trial of the hybrid election system in Indonesia so that the public will be able to evaluate what systems are best applied in Indonesia. This is because the MK’s decision will implement these two election systems in the DPR and in the DPRD so that later this decision will become a political laboratory in Indonesia.
The MK’s decision to use the hybrid election system will later save the MK justices from the assumptions, scorn and accusations from many parties that the Court Justices are timid and doubtful, and not independent due to psychological pressures. Conversely, the MK’s decision will show that the MK justices have high political sensitivity and are reformist because they are able to accommodate the will of the constitution, the political elite, the applicant, the respondent and the improvement of the future of democratic elections in Indonesia.
Let’s wait for the MK’s decision!
