The Government seems to be hasty in completing the new Election Law Bill. Several articles in the Bill clearly ignore the decision made by the Constitutional Court (MK). Konstitusi dan Demokrasi Inisiatif (KoDe Initiative) found at least 22 articles that are unconstitutional and should be reviewed in MK.
KoDe Initiative found these unconstitutional articles after scanning through 111 verdicts made by MK during 2003-2016. Below is the transcript of interview between Rumah Pemilu with Veri Junaidi, the Chairman of KoDe Initiative, regarding the 22 unconstitutional articles.
What do the 22 unconstitutional articles regulate?
Presidential candidacy; result determination of presidential elections; voting methods and result determination in legislative elections; publication of survey result in quiet period; women affirmation in legislative elections; and the requirements to be a member of the Election Commission (KPU) and Election Monitoring Body (Bawaslu).
Why the article on presidential candidacy unconstitutional?
There are two articles that are unconstitutional. First, Article 203 paragraph (5) which states that any political party that does not propose a presidential candidate shall be prohibited to participate in the next election. This particular provision is unconstitutional because proposing a candidate in election is a right. It’s not mandatory.
Second, Article 190 and 192. Both articles state that only political party which has at least 20 percent of seats in National Parliament (DPR) or 25 percent of vote acquisition nationally in the previous legislative election that is allowed to propose a presidential candidate. Any new political party that does not participate in the previous legislative election should join forces with other political party that participated in previous legislative election. This provision is clearly violating the spirit of concurrent elections as contained in MK Decision No.14-PUU-XI-2013. The Decision states that if a political party is declared as eligible and has passed verification process then the political party has a right to propose a presidential candidate.
Which article regarding the result determination of presidential elections that you consider as unconstitutional?
Article 395. This article is unconstitutional because it does not accommodate the provision as contained in Article 6A paragraph (3) of the 1945 Constitution. MK Decision No.50-PUU-XII-201 states that, in principle, whenever there are only two presidential candidates, the winner of the election is the one the receive 50 percent of total votes plus one vote. KPU does not have to consider the provision regarding geographical distribution as regulated in Article 395 because such provision will be automatically fulfilled.
Why the article regarding voting method and result determination in legislative elections is unconstitutional? Which MK Decision does the article violate?
Article 138 paragraph (2), Article 318 paragraph (2), Article 329 paragraph (1) point b, Article 362 paragraph (2), Article 390 paragraph (2), and Article 401. Those articles regulate the implementation of the limited open-list proportional election system which basically is just closed-list proportional system. With the proposed system, the election will be determined by votes acquired by political party, not by individual candidate.
The article regulates that voter shall mark the picture of their preferred political party on the ballot. Meanwhile, any vote for individual candidate (shown by marked picture of individual candidate’s photo on the ballot) shall be considered as invalid vote.
This violates MK Decision No.22-PUU-IV-2008 Article 27 paragraph (1) and Article 28D paragraph (3) which state that elected candidate is the one that receive the most votes, not the candidate as chosen by the political party.
Why the articles regarding he prohibition to publish survey result in quiet period unconstitutional?
Article 428 paragraph (2) and paragraph (6), Article 483, and Article 254 paragraph (5) contains a prohibition to publish any survey result in the quiet period. Publication of survey result is considered may be advantageous or disadvantageous for a certain candidate, therefore it is considered as a violation. Any violator will be sanctioned with one year of imprisonment or fine of twelve million rupiahs.
MK Decision No.24-PUU-XII-2014 has stated that election polling or survey based on scientific method is a part of political education for voters and citizens in general, therefore polling and survey result cannot be considered as electoral violation. The Articles in the proposed Bill are also violating our Constitution, especially Article 28F, which states that information and news are of fundamental rights for citizens.
Which article regarding women affirmation in legislative elections that you find contradictory with MK Decision or Constitution?
Article 214 paragraph (2) contains the disjunctive “or” and the whole explanation is a copy-paste from the explanation of Article 56 paragraph (2) in the Law No.8/2012. The explanation for Article 56 has been revoked by MK with Decision No.20-PUU-XI-2013 Article 28H paragraph (2). Therefore, the explanation of Article 214 paragraph (2) should be using the conjunctive/disjunctive “and/or” instead of only “or”. This should be corrected because of the explanation only using a disjunctive, it means only one women candidate is allowed to be placed as priority candidate.
Lastly, regarding the requirements to be a member of KPU and Bawaslu. What is so unconstitutional about the article?
There are three articles contradictory with the Constitution regarding the requirements for members of KPU and Bawaslu. First, Article 89 paragraph (1) point b states that minimum age requirement is 45 year old. This is contradictory with the Constitution which states that every citizen has the same legal position in front of the law and administration.
Second, Article 30 paragraph (30). The article states that any member of KPU resigning for unacceptable reason or dishonorably discharged, shall return his/her membership bonus two times from the original amount. This is contradictory with MK Decision No.80/PUU-IX-2011.
Third, Article 14 paragraph (1) point i, is contradictory with MK Decision No.81/PUU-IX-2011. The required resignation from political party, public office, and Government-owned Enterprise for any citizen who wish to become a member of KPU and Bawaslu is deemed unconstitutional by MK.
What should we do regarding these 22 articles?
All of those 22 articles we found in the Election Law Bill show how the Government does not take election matters with proper attention. Why does they still include articles that contradictory with MK Decisions? Don’t they check them first before making those laws?
I hope the Special Committee will immediately rectify those articles. Those articles will cause stirs and will be reviewed later anyway. And this reviewing process will hamper the process of the election.