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

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

Regarding the judicial review of the presidential threshold, applicants considered to have constitutional disadvantages are those who are qualified to be nominated as presidential candidates. It means that ordinary people with no qualifications to be presidential candidates are regarded unfit to apply for a judicial review as they do not have constitutional advantages. 

The legal standing according to direct interest described above is obsolete and has been abandoned. Courts in almost all democratic and developed countries have adopted broader legal standing, switching from direct interest to public interest. The applicant’s legal standing is considered relevant as long as it represents the public interest that has been harmed by the enactment of a law. 

The reason is that the constitution is a public law made to protect the public interest, not for the benefit of individuals. It means that public law (administrative law), in principle, is not about individual rights but about public wrongs in carrying out the principles of justice and fairness of public law. This matter is actually the point of the presidential threshold judicial review. 

Thus, the Constitutional Court’s opinion that only those with a “direct interest” can apply for a judicial review is a complete misunderstanding of the constitutional function of the Constitutional Court. It means that the Constitutional Court is incompetent and deserves to be disbanded. 

Second, even if the applicant has legal standing, the Constitutional Court will impede it on the grounds that the presidential threshold is an open legal policy of the House of Representatives. So, it is constitutionally legal. It indicates that the Constitutional Court believes the House has absolute constitutional authority to determine the presidential threshold: 20 percent, 30 percent or even 50 percent. These are all legal, according to the Constitutional Court. 

This is an even more vulgar excuse. It is blatantly contrary to the Constitution. First, there should be no interpretation of open legal policy in the Constitution because it will become a source of legal chaos.