Commission II of the House of Representatives together with the Ministry of Home Affairs, KPU, Bawaslu, and DKPP agreed that the electoral districts for the DPR and Provincial DPRD will remain unchanged. This means that the electoral districts for the 2024 elections remain in accordance with Appendix III and IV of Law 7/2017 on Elections. This agreement was outlined in the conclusion of a working meeting and hearing conducted on January 11, 2023.
The agreement is not in accordance with the Constitutional Court Decision 80/PUU-XX/2022. If we re-read this decision, the discrepancy between the DPR and the Election Organizer’s agreement relates to a number of decision points. First, the Constitutional Court states that Article 187 paragraph (5) of Law 7/2017 is contrary to the 1945 Constitution and has no binding legal force as long as it is not interpreted as “electoral districts as referred to in paragraph (1) and the number of seats for each DPR member electoral district as referred to in paragraph (2) are regulated in PKPU”. Second, the Constitutional Court stated that Article 189 paragraph (5) of Law 7/2017 is contrary to the 1945 Constitution and has no binding legal force as long as it is not interpreted as “electoral districts as referred to in paragraph (1) and the number of seats for each electoral district for members of the Provincial DPRD as referred to in paragraph (2) are regulated in PKPU”. Third, the Constitutional Court states that appendix III and appendix IV of Law 7/2017 are contrary to the 1945 Constitution and have no binding legal force.
Constitutional Court Decision 80/2022 is the constitutional judges’ response to the judicial review request from the Association for Elections and Democracy (Perludem). Perludem raised a number of arguments in this petition. First, the urgency of preparing electoral districts that fulfill the principles of popular sovereignty and honest, fair, direct, general, free and secret elections.
Dapil is one of the three main components of the electoral system apart from the electoral formula and voting method (Douglas W Rae, 1967). For this reason, there are principles that must be met in forming electoral districts. Thomas L Brunell (2008) mentions these principles, namely; (1) electoral districts must be contiguous; (2) equality of population value so that the price of seats for each electoral district is equal to other electoral districts; (3) paying attention to community interests, in this case electoral districts must pay attention to the similarity of social conditions of residents in the electoral district; (4) paying attention to administrative and political divisions; (5) electoral districts must be compact.
Second, there is inconsistency and legal uncertainty in the arrangement of electoral districts. Article 185 of Law 7/2017 regulates 7 principles of constituency preparation. These seven principles become cumulative things that must be fulfilled in preparing electoral districts and seat allocations. The seven principles are; (1) equality of vote value; (2) adherence to a proportional electoral system; (3) proportionality; (4) regional integrality; (5) being in the same area coverage; (6) cohesiveness; and (7) continuity.
However, in fact, the electoral district appendix is unable to ensure that the preparation of electoral districts and the allocation of seats for the DPR, Provincial DPRD, and Regency/City DPRD elections have fulfilled the regulated principles. Law 7/2017 regulates that the electoral districts for the DPR and Provincial DPRD elections become an inseparable attachment to the law. This means that the KPU only has the authority to formulate electoral districts for Regency/City DPRD elections.
Third, there is constituency delineation that contradicts the principle of constituency delineation. The contradiction between the principle of constituency delineation and the constituency attachment in Law 7/2017 is very visible in five main principles, namely; equality of vote value, observance of proportional electoral system, proportionality, area integrality, and being in the same area coverage. The contradiction in the principle of equal value of votes can be seen from the gap in the price of seats from 80 electoral districts.
The second conflicting principle is the principle of proportionality. Practices in a number of countries show that to maintain the proportionality of seat allocation, a standard deviation or tolerance limit is used as an indicator to minimize the number of excessive seat allocations or less seats with the aim of maintaining proportionality or balance between seat allocation and population. Law 7/2017 does not apply standard deviation in the preparation of electoral districts.
Fourth, it limits the space for seat reallocation and the formation of new electoral districts for DPR and Provincial DPRD elections in new autonomous regions. Law 7/2017 has set seat allocations and constituency boundaries in appendix III and appendix IV. Therefore, KPU only has the authority to formulate electoral districts for Regency/City DPRD elections. Meanwhile, there are conditions for the expansion of new provinces for Papua and West Papua. There are three new provinces in Papua Province, namely South Papua, Central Papua, and Papua Mountains. While there is one new province in West Papua, namely Southwest Papua Province.
The existence of these four new autonomous regions will certainly greatly affect the allocation of seats and electoral districts. These four new autonomous regions are required to be recalculated proportionally according to the population in these four new provinces. However, because Law 7/2017 already stipulates the allocation of seats and electoral districts in the appendix of the law, this recalculation cannot be done.
From the arguments presented by Perludem, the Constitutional Court considered a number of legal considerations in deciding this petition. First, the Court reaffirms the “principles” of constituency delineation as stated in Article 185 of Law 7/2017. The seven principles of constituency delineation are intended to strengthen the principles of direct, general, free, secret, honest, and fair elections. Therefore, this principle must be applied in preparing electoral districts starting from the DPR, Provincial DPRD, and Regency/City DPRD electoral districts.
Second, the Constitutional Court reaffirms that a series of electoral contestations must be subject to the electoral stages as stated in Article 164 paragraph (4). The determination of seats and the preparation of electoral districts must be an inseparable part of the electoral stage. Therefore, there should be no distinction between the preparation of constituencies for the DPR, Provincial DPRD, and Regency/City DPRD. All stages of constituency preparation should be part of the electoral stage which is the authority of the KPU. Therefore, if the constituencies for the DPR and provincial DRPD become an appendix to the law, it means that there is a significant takeover of the KPU’s authority.
Third, the Constitutional Court emphasized legal certainty in the preparation of electoral districts. Article 28 paragraph (1) of the 1945 Constitution includes clarity of arrangements that are not multi-interpretive, not contradictory, and also able to guarantee the absence of conflicts of interest. The preparation of DPR and Provincial DPRD constituencies that have become part of the appendix of the electoral law shows a potential conflict of interest because constituencies, which are the arena of competition in elections, are prepared by the parties that will compete, namely political parties.
Fourth, the development of the determination of seats and electoral districts. Since the 1999-2004 elections, the determination of seat allocations and the preparation of electoral districts were carried out entirely by the KPU. Since the 2009-2014 elections, the KPU’s authority in formulating seat allocations and electoral districts has been reduced to only the Provincial DPRD and Regency/City DPRD elections. In fact, in the 2019 elections, the KPU is only authorized to arrange seats and electoral districts for the Regency/City DPRD elections. Since the 2009 elections when the allocation of seats and electoral districts became an appendix to the election law, there has never been an evaluation unless there is expansion accompanied by an increase in the number of seats and electoral districts.
Fifth, the electoral district attachment in Law 7/2017 is not in line with the principle of electoral district formation stated in Article 185. This is because there has been a significant imbalance in the price of votes between electoral districts, disproportionality, and there are electoral districts that are not integral.
Sixth, population and the existence of autonomous regions are factors that determine electoral districts. The target of seat allocation and electoral districts is determined by population and region. The population is dynamic, so the inclusion of electoral districts in the appendix of the electoral law will cause uncertainty, because an area may experience an increase or decrease in population that can affect the electoral district map.
Seventh, the determination of electoral districts is the authority of the KPU. The preparation of electoral districts is one of the stages of the election. Therefore, as with other election stages, the determination of electoral districts must also be the authority of the KPU and its determination is contained in the KPU Regulation (PKPU).
Eighth, the decision in case 80/PUU-XX/2022 will be implemented for the 2024 General Election and beyond. The stage of constituency preparation starts from October 14, 2022 to February 9, 2023. This means that when this decision is read, the constituency formation stage has not ended and there is still time to organize the constituencies.
If we re-read the Constitutional Court’s decision, it is actually quite clear that it is necessary to reorganize the electoral districts. Based on this Constitutional Court Decision, the KPU should reorganize the allocation of seats and electoral districts because the Constitutional Court has returned the authority of the KPU that was previously taken by the legislators. The Constitutional Court’s decision is also a momentum for evaluation of various problems in seat allocation and constituency arrangement that continue to recur. The Constitutional Court’s decision also opens space for public participation to provide input on the allocation of seats and electoral districts, which has not been done so far because the electoral districts for the DPR and Provincial DPRD have become an attachment to the Election Law.
KPU does have an obligation to consult with the Government and DPR in making PKPU. However, this does not mean that KPU decides the substance of PKPU together with the Government and DPR because KPU is an independent institution. It is unfortunate if there is an agreement between the KPU, the Government, and the DPR not to change or reorganize the electoral districts. The KPU should independently take this momentum to reorganize the electoral districts. []
KHOIRUNNISA NUR AGUSTYATI
Executive Director of Perludem Foundation
This article was published on rumahpemilu.org on January 21, 2023 with the title “Re-reading Constitutional Court Decision 80/2022 on Dapil”, https://rumahpemilu.org/membaca-kembali-putusan-mk-80-2022-tentang-dapil/