MK also recognized the equality and opportunity before the law as provided by Article 27.1 and Article 28D.3 of the 1945 Constitution. Imposing an unequal legal provision on two similar circumstances is as unfair as imposing an unequal legal provision on two dissimilar circumstances. Therefore, according to MK, the provision of 30 percent BPP in Law 10/2008 is akin to a double standard.
Unfortunately, the decision failed to take into account the consequences on the technical, operational aspects of the voting method and the corresponding seat awarding system by the party. This could due to MK’s lack of understanding on technicalities of the electoral system. When MK rested its decision on the rationale of “majority votes”, it failed to consider its alignment with the voting method which still allows voters to mark the party’s logo and the preferred candidate’s number or name.
If MK is consistently and understands the electoral system comprehensively, the “majority votes” argument should also be followed by legal considerations that voting is fully carried out only to elect candidates. Or conversely, if it is possible for voters to mark the party’s logo, the party is also given the right to determine the candidate it wishes to award the seat to in the event that the party receives the majority votes.
The General Elections Commission (KPU) as the executor of the law, which during the proceeding stated that it was ready for the implications of electoral system change, also did not provide recommendations or explain the technicalities in a coherent manner. As a result, the 2009 Elections and the ones after that still applied the logic of open list proportional system using electoral numbers as stipulated in Law 10/2008 before it was annulled.
Open legal policy
It is likely that this lack of technical knowledge was the reason MK changed course when it decided to review the law pertaining to the electoral system’s support variables in the form of scheduling or the option of the simultaneous elections. In Decision 55/PUU-XVII/2019 in response to the petition filed by Association for Elections and Democracy (Perludem), rather than stating simultaneous national and local elections are the only constitutional option, MK opted to prescribe guidelines in the form of principles for lawmakers in creating a law to govern simultaneous elections.
In the guideline, MK stated that legislators need to consider several things, namely: (1) the selection of a model that may result in changes in laws is carried out with the participation of all stakeholders; (2) the likely revisions to existing laws as a result of the choice are carried out earlier to allow time for simulations before the changes are implemented; (3) lawmakers must take into account all the technical implications of the available choices to ensure that its implementation remains within the limits of what can be considered reasonable, especially to create quality elections; (4) the choice always takes into account the convenience and simplicity for voters in exercising their voting right as a manifestation of the sovereignty of the people; and (5) not change the direct simultaneous election model frequently to maintain certainty and stability.
If we look at MK’s attitude in Decision 55/PUU-XVII/2019 and the ongoing judicial review of the electoral system in Case 114/PUUXX/2022, the outcome should be easier to predict. MK may rule that the choice of electoral system is within the purview of lawmakers to pass a law to regulate it in what is termed “open legal policy” as is the case with its decision regarding the simultaneous election model.
This is based on several considerations. First, the 1945 Constitution does not explicitly stipulate the choice of electoral system for legislative elections even though Article 22E.3 states that “Participants in the general election to elect members of the House of Representatives (DPR) and Regional Legislative Councils (DPRD) are political parties,” but this should not be necessarily interpreted as a closed list proportional system because in a proportional representation system, whether open- or closed-list, the election participants are political parties and, unlike in Regional Representatives Council (DPD) election, there is no room for independent candidates.