The only way (again and again) to change the substance of the Election Law is through a judicial review at the Constitutional Court. Based on data from the Constitutional Court, General Election Law No. 7/2017 ranks first as the law with the most material reviews, as many as 99 times. The phenomenon of judicialization of politics has become stronger. Judges and the judiciary are increasingly drawn into resolving political issues that should be in the hands of Senayan politicians and the Government.
The electoral system is related to judicial review. In mid-November 2022, six applicants filed a constitutional review of eight norms in the Election Law relating to the open-list proportional electoral system. The argument is that an open proportional electoral system engenders complications, wastes state budget, encourages the practice of buying and selling votes, causes corruption crimes, weakens party institutions and creates complex multidimensional problems.
The petitioners wanted to return to the closed-list proportional system, as implemented during the orde baru (“New Order”) era up to the 1999 election. So, voters only needed to prick pictures of the parties on the ballot and did not directly vote for legislator candidates.
The response to the review of the electoral system at the Constitutional Court was phenomenal. For the first time in Indonesia’s political history, eight of nine parties in the parliament publicly declared their rejection of a closed proportional system for the 2024 election. The electoral system review also led to 13 sides proposing themselves in this case because they have a direct interest in the substance being tested, including individuals, groups, organizations and political parties.
Although the constitutional judges were pressured to make decisions quickly, the Constitutional Court took pains to be careful and allowed all sides an opportunity to be heard. It seems like the right attitude, considering that the electoral system is a crucial matter that can affect many aspects of the election administration.
Meaningful participation
The Constitution does not explicitly regulate the legislative election system. This policy should be decided by legislators as an open legal policy, by considering all aspects of elections and their implications. Most of the Constitutional Court’s decisions also stipulate electoral system variables as open legal policies for legislators, such as determining parliamentary and presidential thresholds and the simultaneity of elections. After all, the Constitutional Court still has significant influence by providing guidelines for legislators, such as the formula for the 2019 simultaneous elections.
Whichever electoral system is chosen, closed or open, either requires the Party’s internal democracy and effective law enforcement. Unfortunately, neither are available today.