Ahead of the 2024 General Election, various groups, including political parties, have begun to discuss the threshold for presidential candidacy. Among the groups are political parties, including the Prosperous Justice Party (PKS), the Democratic Party, and a number of new parties, such as the Ummat Party (Partai Ummat) and the Labor Party (Partai Buruh). A number of citizens had also challenged the threshold law at the Constitutional Court (MK), including Busyro Muqoddas, Hadar Nafis Gumay, Rizal Ramli, and Bambang Widjojanto. Requesting for a judicial review to the court, they firmly rejected the 20 percent threshold because the percentage is considered too high and hinders the emergence of alternative leaders.
On Wednesday, January 26, 2022, the Ummat Party filed a request for a judicial review regarding the presidential threshold to the Constitutional Court. Previously, the Court had rejected the same 15 requests. “Our request for a judicial review has been registered with the Constitutional Court and we are completing the administrative requirements needed,” Deputy Chairperson of the Ummat Party, Nazarudin, told Jaring.id, on Wednesday, January 27, 2022.
Provisions related to the requirements for candidacy were initially regulated in the Law Number 3 of 1999 concerning General Elections and was later amended in Law Number 12 of 2003 concerning General Elections of Members of the House of Representative, Regional Representative Council, and Regional Legislative Council. Based on the 1999 and 2004 General Election, the electoral threshold was used as a requirement for participation in the 2004 and 2009 election. However, in the 2009 election, this provision was no longer applied as a requirement for participation in the 2014 election.
The provisions of Law Number 7 of 2017 concerning General Elections state that pairs of candidates are proposed by a political party or coalition of political parties participating in the election. The political parties should meet the requirements for obtaining at least 20 percent of the total seats in the House of Representatives or obtaining 25 percent of the valid national votes in the previous election for the House of Representatives (legislative elections). This means that the number of seats acquired in the House and the valid national votes resulted from the previous legislative elections are very impactful for political parties.
Despite being overshadowed by the fact that the court had rejected previous similar requests, the Ummat Party is optimistic that its request for the judicial review can be accepted by the Constitutional Court. According to Nazarudin, there are three reasons that prompted his party to file this lawsuit. The first is related to legal standing, where in the previous similar lawsuits, there was no plaintiff that represented a political party. Secondly, the Ummat Party considers that the threshold provisions violate human rights and are contrary to Article 22E paragraph 1 of the 1945 Constitution. The high threshold for the nomination of president and deputy is also considered to benefit the few parties that have already secured the most seats in parliament. “It’s not fair. Whoever becomes the president, experience has shown that it is an extension of the oligarchy,” said Nazarudin.
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The Constitutional Court previously stated that it was still open to changing the presidential election threshold from 20 percent to 0 percent. Deputy Chief Justice of the Constitutional Court, Aswanto, suggested that the applicants should strengthen their legal standing and study the previous rulings. “My suggestion can be further elaborated on this legal standing, in which individuals should be given legal standing. It seems that this has not appeared,” Aswanto said during a trial at the Constitutional Court, which was broadcasted via the court’s YouTube account on Monday, January 17, 2022.
The lawsuit that is currently being processed at the Constitutional Court strengthens the hopes of new parties to nominate their figures as the candidates for president and vice president. Spokesman for the Fair and Prosperous Party (Prima), Farhan Abdillah Dalimunthe, hopes that constitutional judges will grant the threshold to zero percent. “We want to restore democracy. The 20 percent threshold violates democratic principles,” Farhan emphasized.
According to Farhan, the provisions of the threshold for presidential nomination by the government and the House of Representatives is similar to authoritarianism, which limits the political rights of citizens. In addition, the implementation of the threshold is feared to cause the rampant practice of money politics. The big parties will greatly rule and determine the system of candidacy for the nation’s leadership in 2024. On the other hand, new parties will be losing ground in this battle. They will find it difficult from the start to pass the nomination system. “This will result in big money politics. The oligarchs are playing to determine the figures they will nominate for the presidency,” he said.
The Labor Party expressed a similar opinion. The party’s Head of the Election Division, Ilhamsyah, stated that the threshold was nothing more than a trick of the parties that currently have seats in the parliament. “The elections, which are expected to present new figures from the people’s movement, will be difficult for the smaller new parties. Again, the figures that will appear are those who are supported by oligarchs and big investors,” said Ilhamsyah on Friday, February 4, 2022.
Member of Commission II of the House of Representatives, Guspardi Gaus, admitted that the presidential nomination with a limit of 20 percent was quite a difficult requirement. With this provision, the parties that are currently in the parliament have no other choice than to establish a coalition. “Obviously, 20 percent is burdensome,” he told Jaring.id on Friday, February 4, 2022.
The implementation of the 20 percent threshold requirement will likely limit the number of presidential candidates as happened in the 2014 and 2019 elections, in which there were only two candidates. In 2014, Joko Widodo partnered with Jusuf Kalla, while Prabowo Subianto coupled with Hatta Rajasa. In 2019, the incumbent Joko Widodo ran for the second term by teaming up with Ma’ruf Amin, while Prabowo partnered with Sandiaga Uno.
As a result, according to Guspardi, the contest has led to prolonged polarization between the supporters of the two candidates. In fact, it still happens until recently. “Political situation during the presidential election in 2014 and 2019 has sparked schism within the society. This is not good for the unity of our nation,” said the member of the Council from the National Mandate Party (F-PAN) Faction.
Therefore, F-PAN had suggested that the presidential nomination threshold be lowered to 4 percent. “That way, at least there might be opportunities for the nomination of three to four candidates for the 2024 presidential election,” he said. However, these efforts failed after the House of Representatives and the government agreed not to revise the Law Number 7 of 2017 concerning Elections. “PAN Faction once suggested that political parties should be given space to nominate a president because they have representatives in the parliament. Basically, there are no restrictions in the Constitution, then why should there be the threshold provisions? Don’t let it be a head-to-head election, because it can cause disintegration in the society, ” said Guspardi.
Even so, PAN will not stay still in this situation. It will be exploring potential candidates for the 2024 presidential elections. According to Guspardi, his party has approached several names with high electability, such as Anies Baswedan, Erick Thohir, and Ridwan Kamil. “The General Chairperson of PAN has delivered a national speech. That’s part of the introduction and exploration of candidates who meet the expectations of the people,” said Guspardi on Friday, February 4, 2022.
The Prosperous Justice Party (PKS) also shared similar views. According to Hidayat Nur Wahid, until now, the party is still encouraging its Head of Syuro Council, Salim Segaf Al Jufri, to be the candidate, while reviewing the electability of several other names. “But PKS has not yet determined the presidential and vice presidential candidates. We will open our eyes and ears for cooperation. We are ready to establish a coalition. It is impossible for PKS to stand alone,” he said. Approaching the 2024 election, according to him, PKS must be able to increase its electability. “The main thing at this time is to improve the quality of the party,” he added.
This is because the current 20 percent threshold does not only make it difficult for non-parliamentary parties. Even the parliamentary parties were nervous about the results of the previous election. Currently, PKS only has 49 seats or 8.54 percent in the House of Representatives. This means that PKS needs to form a coalition with other parties to nominate a president. “It has always been proven that the threshold provisions always bring controversy,” he said.
According to Hidayat, the threshold in presidential elections has eliminated the people’s right to determine the candidates that they can elect. The 20 percent threshold will only present a limited number of presidential candidates. “This reduces the meaning of people’s rights, which are actually more diverse,” Hidayat told Jaring.id on Thursday, February 3, 2022.
For this reason, PKS supports judicial reviews carried out by civil society groups to political parties at the Constitutional Court. PKS hopes that the presidential nomination mechanism will follow the old pattern of the 2004 election. At that time, the presidential election that involved five pairs of candidates did not result in polarization in the community. “This must be corrected. Should there be a threshold and other certain provisions, we propose that the threshold follow the old pattern,” he said.
No Balancer
Constitutional law observer from Andalas University, Ferry Amsari, said that the threshold provisions were not stated in the 1945 Constitution. The mechanism for selecting presidential and vice presidential candidates is generally regulated in Article 6A of the 1945 Constitution of the Republic of Indonesia. Elections are carried out in one pair of presidential and vice presidential candidates and directly elected by the people. The pairs of presidential and vice presidential candidates are proposed by political parties or a combination of political parties participating in the election, before the election is held. However, the government and the House of Representatives inserted additional requirements, namely a threshold of 20 percent of seats or 25 percent of the national valid votes in the previous election.
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The Director of PUSaKO (Constitutional Studies Center) at the Faculty of Law of Andalas University, said that the threshold was the game of the big parties. As a result, the small and medium parties cannot be the balancer for the system. “Implementing the threshold is their way to ease them to stay in power,” said Ferry to Jaring.id on Wednesday, February 2, 2022.
On the other hand, he also regretted the ruling of the Constitutional Court. According to him, the judges of the Constitutional Court did not analyze the implementation of the 20 percent threshold sharply. He hoped that the Constitutional Court would not be carried away by political currents by strengthening the implementation of the threshold requirements. “There is negligence that should be addressed by the Court for the sake of democracy in the future. The Constitutional Court as the protector of the Constitution failed to protect the purpose of the constitution,” he said.
Election observer, Titi Anggraini, said that she was surprised by the reasons that the Court rejected the Lawsuit Number 49/PUU-XVII/2018 related to the presidential election threshold. In its considerations, the Constitutional Court always uses the argument that the threshold policy is determined by the makers of the law, namely the government and the House of Representatives. The Constitutional Court also claimed that the nomination requirements could strengthen the presidential system. “Actually, the presidential system does not depend on the power of the parliament, because the president’s legitimacy is obtained through direct elections. It should not be held hostage by parliamentary forces,” Titi Anggraini shared her opinions to Jaring.id on Friday, January 28, 2022.
In fact, the provisions in the Article 222 of the Election Law does not only discriminate against parties, but also closes the opportunity for young people, indigenous peoples, women, and people with disabilities to have greater participation, more than just casting their votes in the elections. “Instead of strengthening the debates on the program of ideas, what actually happens is that the society is disunited, trapped in the identity politics, and the existence of identity hegemony that can lead to issues like race, religion and ethnic groups,” said Titi.
Meanwhile, an observer of regional democracy in Asia, Ichal Supriadi, said that the threshold in Indonesia is too high. The determination of this threshold, he said, was aimed at controlling the power. “Besides, parties are afraid of competition. If the parties dare to compete, why should the threshold be limited to 20 percent?” Ichal queried the mechanism when interviewed by Jaring.id on Saturday, February 5, 2022.
In Southeast Asia, according to Ichal, there are three countries that apply the presidential election threshold, namely Nepal, the Philippines and Indonesia. Of the three countries, the proportion of votes or seats in Indonesia is the highest. “In the Philippines and Nepal the threshold only applies to local elections,” said Ichal. That way, no strong party can rule in Nepal and the Philippines respectively. “Meanwhile in Indonesia, the last four periods were controlled by the Democratic Party and the coalition of the PDIP. Therefore, the dominance of political parties in Indonesia is quite strong,” said Ichal.
According to Ichal, who is also the Director of the Asia Democracy Network, the application of the 20 percent threshold has ruled out the opposition, so that it has a negative impact on the democracy system in Indonesia. “This has to be stopped or changed. If not, it is going to kill democracy. Democracy develops because there is an opposition and political equality,” he said. (Abdus Somad)
