As Andrew Reynolds et al (2005) note, traditionally electoral systems have rarely been consciously and deliberately chosen. Although deliberate electoral system design has become increasingly common in recent years, the choice of electoral system is often a matter of chance. The result of a combination of unusual circumstances, of passing trends, or of historical peculiarities, with the impact of colonialism and the often very strong influence of neighboring countries.
A similar view is expressed by Allen Hicken (2019), who cites three conditions that lead to the initiation of electoral system reform: systemic failure, a catalytic event and a change in incumbents’ preferences. Systemic failure occurs when the current electoral system fails to meet the public’s normative expectations for responsive, accountable and effective government.
Meanwhile, the catalytic event that prompts electoral system change is generally a crisis that makes the connection between political and/or economic woes and the electoral system, resulting in a demand for reform. System reform can also occur because an incumbent politician feels that he or she will benefit by pushing for system change (or at least by not opposing it), with the incumbent believing that there will be long-term electoral benefits from having the new electoral system in place. Alternatively, the incumbent expects short-term electoral gains from choosing to act as a reformer (known as ‘action motivation’).
Judicialization of politics
In Indonesia, the electoral system, in addition to being a product of the struggle of lawmakers as a reflection of the history of the organization of previous elections (especially the New Order elections), is influenced by the role of court decisions through judicial review, or the settlement of disputes over election results in the Constitutional Court (MK).
The existence of the Constitutional Court in order to strengthen the separation of powers and control between branches of power (checks and balances) does allow the parties to assess and take legal action against legal norms that are considered unconstitutional, or contrary to the provisions of the 1945 Constitution of the Republic of Indonesia. This has resulted in the strengthening of the phenomenon of judicialization of politics with judges and the judiciary being drawn in to decide political issues in Indonesia’s future electoral arrangements.
After the 1999 elections, the legislators decided to change the closed-list proportional electoral system for electing members of the DPR and DPRD so that voters could directly vote for their preferred candidates on the ballot paper. The ballot paper would not only contain the party’s serial number and image mark, but also the serial number and name of the candidate nominated by the party. However, in the 2004 General Elections through Law No. 12/2003, this was still done through the application of a relatively closed open list system where candidates would occupy the seats obtained by the party if they received a number of votes at the quota price of one seat called the voter divisor number or BPP.
BPP itself is obtained through the summation of the total valid votes in an electoral district which is then divided by the total number of seats contested in the electoral district. The result of the division is the seat price quota that must be met by candidates to sit in parliament. If there are no candidates who get a number of BPP votes, the seats will be given to candidates based on serial numbers. If a party gets two seats, the two seats will be given to the party’s number one and number two candidates.
Such a mechanism created dissatisfaction and upheaval within the party, especially for those who received more votes, but could not sit in parliament because their votes were less than the BPP. Through Law No. 10/2008, the legislators decided to reduce the seat price quota for candidates from 100% to 30% of the EMB. This was referred to as a ‘more open’ list system.
However, this gradual open proportional choice was overturned by the Constitutional Court through Decision No. 22-24/PUU-VI/2008. The Court said that every candidate should be able to become a member of the legislature at all levels in accordance with their struggle and the acquisition of vote support, so that the 30% BPP requirement that must be met by candidates to get a seat and if not, will return based on serial numbers, is seen by the Court as something that pierces the sense of justice and violates popular sovereignty in its substantive meaning.
In its decision, the Constitutional Court said that the philosophical basis of every election of people to determine the winner is based on the most votes, so the determination of elected candidates must also be based on whoever gets the most votes in sequence and not on the basis of the smallest serial number that has been determined.
In other words, every election should no longer use a double standard, i.e. using the serial number and votes of each candidate. Imposing a provision that entitles elected candidates based on serial numbers means stifling the people’s right to vote according to their choice and ignoring the level of political legitimacy of elected candidates based on the highest number of votes.
The Constitutional Court also relies on the recognition of equality and opportunity before the law, as contained in Article 27 paragraph (1) and Article 28D paragraph (3) of the 1945 Constitution, so that every candidate has the same position and opportunity before the law.
Applying an unequal legal provision to two similar circumstances is as unfair as applying the same legal provision to two unequal circumstances. Therefore, according to the Constitutional Court, the 30% BPP provision in Law 10/2008 contains a double standard so that it can be considered to apply different laws to the same situation, which is considered unfair.
Unfortunately, the decision (which could be due to the Court’s limitations in reaching technical details as well as the legislators, or it could also be due to the Court’s lack of knowledge about the electoral system) does not consider the consequences of the decision on the holistic technical operationalization of the voting method and its relation to the determination of candidates who get seats from a party.
When the Court relies entirely on the so-called “majority vote” of candidates, it fails to consider its alignment with the voting method that still allows voters to mark once in the party name column, in addition to the candidate number column or the name column of candidates for members of the DPR, provincial DPRD, and district / city DPRD.
If the Constitutional Court consistently and comprehensively understands the electoral system, the argument of “most votes” for candidates will also be followed by legal considerations, that voting is entirely done only to elect candidates. Or vice versa, if it is still possible for voters to vote in the party name column, parties are also given the right to determine the candidates they want to get seats in the event that the party name column gets the most choices from voters. However, this was not the case.
The KPU as the implementer of the law, which during the trial of case No. 22-24/PUU-VI/2008 expressed their readiness for the implications of the changes in the electoral system, also did not suggest or do that technical coherence. As a result, the Constitutional Court’s decision to require the ‘majority vote’ in the practice of the 2009 General Election and subsequent elections still works within the logic of voting in an open proportional electoral system with serial numbers as regulated by Law 10/2008 before it was canceled by the Constitutional Court.
Open legal politics
It could be that the inaccuracy of technical coverage is what makes the Constitutional Court take a different direction when deciding on a judicial review related to the supporting variables of the electoral system in the form of scheduling or the choice of election simultaneity model. In Decision No. 55/PUU-XVII/2019 petitioned by the Association for Elections and Democracy (Perludem), rather than declaring the model of simultaneous national and local elections, which Perludem requested as the only constitutional option, the Constitutional Court preferred to provide guidance in the form of principles and principles for lawmakers in deciding on the model of simultaneity to be regulated in law.
As a guideline, in deciding on the choice of model for the simultaneous holding of elections, the Constitutional Court said that lawmakers need to consider several things. These are, among others, (1) the selection of a model that has implications for changes to the law is carried out with the participation of all groups that have concerns over the holding of elections. (2) The possibility of changing the law on the choice of these models is carried out early so that there is time for simulation before the changes are actually effective.
Then, (3) the legislator carefully considers all the technical implications of the choice of model available so that its implementation remains within the limits of reasonable reasoning, especially to realize quality elections. (4) The choice of model always takes into account the ease and simplicity for voters in exercising their right to vote as a manifestation of the implementation of popular sovereignty and (5) does not often change the direct election model which is held simultaneously so as to build certainty and stability in the implementation of elections.
If we refer to the attitude of the Constitutional Court in Decision No. 55/PUU-XVII/2019 and are associated with the judicial review of the electoral system in case No. 114/PUU-XX/2022 which is currently ongoing, the direction of the Constitutional Court should be more predictable. The Constitutional Court will decide that the choice of electoral system is the territory of the legislator to regulate it (open legal policy), as well as the Constitutional Court’s decision related to the simultaneous election model.
This is based on several considerations. First, the 1945 Constitution does not explicitly regulate the choice of electoral system for elections of members of the DPR and DPRD. Although Article 22E paragraph (3) of the 1945 Constitution states that “Participants in the general election to elect members of the House of Representatives and members of the Regional Representatives Council are political parties”, but it can not necessarily be interpreted as a closed proportional electoral system because in a proportional electoral system either open or closed, the election participants are political parties and there is no room for individual candidates as is the case in the election of DPD members.
Secondly, if the minutes of the amendment of the basic law are traced, it will be found that the choice of electoral system for DPR and DPRD members is not a single choice. At the end of the 33rd PAH I BP MPR Meeting, chairman Slamet Effendy Yusuf summarized the proposals that emerged during the meeting. In relation to the electoral system for members of the DPR and DPRD, it was stated that “Then in passing, the debate also began to emerge about the electoral system. Whether proportional, district or mixed, it has also been mentioned”.
At the Fifth Plenary Meeting of the MPR on November 4, 2001, chaired by MPR Speaker M Amien Rais, the discussion on elections resumed. The MPR factions expressed their views. S Massardy Kaphat from F-KKI said, among other things, as follows: “The electoral system to elect people’s representatives should also be more advanced so that what the people choose is not only party pictures, but also people so that the better system in the future is a proportional system. An open list that the people vote for is both pictures and people or a district system. It would be even more democratic if not only party candidates were allowed to participate in elections to elect people’s representatives, but also individual candidates.
Third, although the petitioner tested nine norms relating to the unconstitutionality of the open proportional electoral system, the technical operationalization of the open proportional electoral system is not only contained in the nine norms tested. The regulatory framework of the open proportional system is also scattered in the design of the participation of political parties in the election, the campaign model, the rights of voters who move to vote, the determination of vote acquisition by the KPU (which still includes parties and candidates), and law enforcement (especially related to vote buying).
Finally, fourthly, in the future it is highly likely that there will be evaluations or modifications to the choice of electoral system. If the Constitutional Court locks itself into one system, it will make it difficult to make adjustments and improvements in future elections.
Signs
Therefore, if we look at some of the Court’s most recent decisions, the question of this system is a constitutional choice for the Court to place it in the realm of lawmaking. However, the Court needs to provide signs to the legislators regarding the principles and principles in choosing the electoral system, as the Court did in Decision No. 55/PUU-XVII/2019 regarding the choice of the simultaneous election model.
It is also important for the Constitutional Court to emphasize in their decisions the consistency of the choice of electoral system with the various technical variables that accompany it so as not to cause ambiguity in its implementation. For example, the irrelevance of the use of serial numbers and the option to vote for parties in an open proportional system with the popular vote. The decision on the electoral system will be one of the Constitutional Court’s moments to affirm their position as the guardians of the Indonesian constitution and democracy.
Therefore, the Constitutional Court must be able to prove their independence and not be mired in partisan politics that could actually make the Constitutional Court slump and lose public trust. Of course the Court is not rash. []
TITI ANGGRAINI
Perludem advisor and election lecturer at the Faculty of Law, University of Indonesia
This article has been published in Media Indonesia with the title “MK and the Choice of Election System”, Source: https://m.mediaindonesia.com/opini/555438/mk-dan-pilihan-sistem-pemilu