Sustaining the Presidential Threshold: The Constitutional Court’s Decision Violates the Constitution

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Anthony Budiawan
Anthony Budiawan, Managing Director of PEPS (Political Economy and Policy Studies)

Jakarta, IO – The Constitutional Court of Indonesia is no longer the enforcer of the Constitution. It has transformed into an ally of groups that sustain constitutional violations. All lawsuits for judicial review of the 20 percent presidential threshold were dismissed, rejected without any ground and ruled out by violating the Constitution itself. 

Two reasons were used as the ultimate weapon when the Constitutional Court rejected all the appeals for judicial review. The first is the legal standing of the applicants. The Constitutional Court will ensure that the applicants do not have any legal standing, so they cannot contest the Court’s decisions. 

The second reason is related to the open legal policy. According to the Constitutional Court, the House of Representatives has the constitutional authority to decide the presidential threshold. They can set the proportion as they wish as long as it is approved by the House and ratified into law. It means that the presidential threshold as an open legal policy is constitutionally valid, according to the Constitutional Court. 

The two reasons the Constitutional Court gave are too far-fetched, unprofessional and arbitrary or tyrannical. They are made purely to protect a law that deprives the sovereignty and democracy of the people. It is at odds with the public interest and the Constitution. 

In the legal standing matter, the Constitutional Court follows the “direct interest” argument, meaning that only parties with a “direct interest” can apply for a judicial review (reviewing a law against the Constitution). 

The “direct interest” is when the applicant has a direct constitutional loss resulting from the enactment of a law.