IO, Jakarta – The Presidential election threshold set at 20% of parliamentary seats is a bad precedent in the logic of democracy and adherence to the spirit of the constitution. Validation of this electoral threshold in the General Election (Pemilihan Umum – ‘Pemilu’) Law will be a backward step for our democracy. Not simply the issue of a Presidential threshold, but other issues that arise as well, and show that our democratic process is in danger, i.e. with the high number of citizens being arrested for ‘hate speech’ crimes. What’s more, the stipulation concerning insulting the President has also been included in the Draft Criminal Code (Rancangan Kitab Undang-Undang Hukum Pidana – ‘RKUHP’).
A Weakening of Constitutional Democracy
The Constitutional Court (Mahkamah Konstitusi – ‘MK’) has rejected the appeal for a judicial review of Pemilu Law (Undang-Undang – ‘UU’) Number 7 year 2017 Article 222 concerning the General Elections (Pemilu), related to the implementation of a threshold in submitting candidate for President (calon presiden – ‘Capres’) and Vice Presidential candidate (calon wakil presiden – ‘Cawapres’). Article 222 itself regulates the Presidential threshold, in which a political party or political party coalition must have won 20% of the seats in the DPR or 25% of the national valid vote in the 2014 elections in order to be able to submit a capres and cawapres pair.
According to MK, the formulation of Article 222 of UU Pemilu was based on the initial spirit of the election, which implements a minimum vote for a political party or political party coalition in order to be able to put forth a Presidential candidate and Vice Presidential candidate pair. This means that from the start, there is a precedent for the system to be strengthened.
In his interview with the Independent Observer, State Administration Law Expert Margarito Kamis states that MK’s decree has weakened constitutional democracy. He reasoned that constitutional democracy grants the right to all political parties to take part in elections, without stipulating any specific numbers. ‘So, there is no numeric limit in submitting Presidential candidates (capres) or Vice-Presidential candidates (cawapres). The existing or mandatory condition is that the political party has been registered for participation in Pemilu. Because MK made this decision, I say that MK has weakened the constitutional rights of parties,’ Margarito said heatedly.
‘The 20% Presidential threshold also violates the Constitution,’ he added. This is because the phrasing of Article 6A (2) of the Constitution (Undang-undang Dasar – ‘UUD’) of 1945 states that the President and Vice President candidate pairs are proposed by political parties or political party coalitions that participate in the general elections, before the actual general elections are held. This means that any political party can submit a Presidential and Vice-Presidential candidate as long as they are valid parties registered as Pemilu participants. ‘I must say that MK has overridden the tendency of Article 6. Unfortunately, our legal system does not provide a process for correcting MK’s decision. So, we have no other choice than to comply with this decision, whether we like it or not, whether we agree to it or not,’ he said.
A similar view was stated by Syamsul Bahri, Chairman of DPP (the Executive Central Committee) of Gerindra Party for Pemilu Reviews. He said that as the Law stipulates that elections shall be held simultaneously, i.e. Legislative Pemilu held together with Presidential Pemilu, the Presidential threshold is inapplicable.
Currently there are 15 national parties and 5 local parties that will compete in Pemilu 2019. Therefore, new and old parties both have the right to submit their capres and cawapres. ‘So according to the regulations, it is a political party or political party coalition that will have the right to propose candidates. But this is the decision made by the lawmakers – we are obliged to follow them. This rule makes it seem that they want only a single Presidential candidate, and this is not implied in our constitution,’ said Syamsul Bahri, the former member of the General Elections Committee for the 2007-2012 period.
Syamsul continued by saying that the 20% Presidential threshold is not in line with the spirit of democracy. ‘Whether a big or small party, all must be represented. If any vote is not represented, according to democratic theory the value is reduced. On the other hand, we are so certain that direct democracy can channel the various interests out there. This is how we get a majority leader, even if it is not 100%. Democracy must have a balancing power – if everything is already in one hand, we can imagine just how ‘democratic’ our legal processes really are,’ he said.
Meanwhile, the Chairman of DPP for Partai Keadilan Sejahtera (PKS), Mardani Ali Sera, admitted that the decision is outside his party’s expectations, which reject the Presidential threshold and hopes that Article 222 that stipulates the Presidential threshold will get revoked. ‘However, we respect MK’s decision on the Presidential threshold. We are ready to compete in Pilpres 2019,’ said the Member of Commission II of the House of Representative (Dewan Perwakilan Rakyat – ‘DPR’) of RI.
With the new Presidential threshold set at 20%, many opinions have been heard. One of these is that the regulation puts the incumbent, President Joko Widodo, at an unfair advantage.
Margarito states that such speculation is useless, because in politics, everything fluctuates. ‘Let’s say that several parties openly state that they will put up our current President as candidate, but legally, such statements are meaningless. When the time comes, it is very much possible that the parties that say that they will put up Jokowi as candidate may put up some other candidate instead. That’s your garden variety, easily-changeable political statement. Therefore, it is not a sufficiently strong base for speculating that the regulation is a means for the incumbent to isolate his political opponents,’ he explained.
Syamsul said that he cannot fault any group for thinking this way. ‘Actually, without the Presidential threshold, all parties will correct themselves: they will not put up a candidate if they feel that their power is insufficient. So, we can expect to have more than 2 candidate pairs. But now, it’s all turned paradoxical. We want to unite, but this has the effect of dividing us,’ he said.
The freedom of opinion is the spirit and pillar of the democratic system. However, ‘freedom of opinion’ frequently runs against existing regulations or norms. The article concerning insulting the President and the government, which the Constitution Court has revoked, is being revived in President Jokowi’s era.
This is in fact a legal product that we inherited from the Dutch Indies colonial government. The Government included the article concerning insult to the President and Vice President into the Draft Criminal Code (RKUHP). Even though it is only included in the RKUHP, there were 9 cases of insulting President Jokowi whereby the perpetrators were jailed throughout 2017.
Mardani said that the government needs to be mature in responding to any criticism that befalls it. ‘But instead of being mature, the government’s attitude and response are actually quite childish. They show an unreadiness to be criticized and to accept difference of opinion. Not just the article on insults to the President, but they insist to continue using the Perpu Ormas pattern,’ he said. What happens is that the government considers their citizens to be criminals by arresting them for petty things. ‘Instead of viewing the people as their loving children and criticize them out of love. If this goes on, our government is creating a distance with the people and must be ready to get abandoned by them,’ Mardani said.
Margarito feels that the inability to speak out is different from insulting somebody, and it is not democratic. ‘Because I understand democracy as our way of honoring our nobility as humans. Therefore, democracy cannot be used to lower or denigrate the gallant human nobility. So, I agree that there should be legal consequences for slanderers. Our duty is to define ‘slander’, which is not a rigid thing. Because it is not rigid, anyone can define ‘slander’ from their own viewpoints. This is the point when democracy is weakened and degraded,’ he said.
Margarito feels that the article on insult to the President is an invitation to tyranny. ‘The original concept of a ‘President’ is a not a person. It is an institution, not a person. Because it is not a person, it does not have feelings, nobility, or dignity. The one who has feelings, nobility, and dignity is the person who holds the position. Therefore, if the person feels offended, let him or her feel it, not the institution. If a criticism of policy is received as a personal issue, therein lies the danger to democracy. We are finished. We would be inviting tyranny into national living. That is a fatal error. It is the same as UU MD3 (the law pertaining to the 3 representative bodies), it is an equally fatal error, because the term ‘Member of DPR’ does not refer to a person, but to an institution,’ he said spiritedly.
Margarito added that if the President and people’s representative start to think in terms of ‘insult’, democracy has ended. As for the persons who have been arrested due to hate speech, Syamsul said that the regulation is a massive gray area. ‘It depends on who views it – is it insulting or not. If it is a correction for good, they should be thanked instead of being reported, because there are facts. If people get arrested for every little thing, if there is no criticism allowed, then it’s a tyranny,’ he said plainly. Criticism is allowed in democratic countries, because it is a correction made by the public to its officials. ‘What is not allowed is criticism not based on solid data. So, on one hand we claim to be democratic, but on the other hand we think like the ancient people do,’ he said.
Syamsul disapproves of the article about insulting the President. He thinks that this issue does not require a separate article, because it may show different assessments and interpretations. ‘For example, saying that ‘this is an insult, but that one is not,’ we’d be in trouble, and laws should not have different interpretations,’ he said.
In the framework of public and national living, Margarito asked us all to stop thinking about our own groups only. ‘We must try to recognize the purity of a concept. The concept of ‘President’ and ‘DPR’ seemingly shuts down critics. Zero criticism only occurs in an authoritarian country, one led by a tyrant. In a democratic country, criticism is a mundane thing. Criticism means that people yearn for accountability and transparency, no other tendencies,’ he said.
Public officials must get used to being criticized. ‘Public officials have a lot of privileges in public and national living. Consequently, they must be ready to get criticized. We are done as a nation if we arrest someone when they criticize. We are killing democratic civilization, because democratic speech is the basis of civilization. If we deny these values, we are killing civilization,’ he said.
So, after 72 years of independence, with this type of dubious rules and regulations that we issue recently, can we still call ourselves a democratic country?