Interpreting the Constitutional Court’s Decision

The Constitutional Court of the Republic of Indonesia (MK) has just announced its verdict on two regulations in Law No. 8 of 2012 on General Elections to elect Members of Parliament at the national (DPR), provincial (DPRD Provinsi), as well as district or municipality level (DPRD Kabupaten/ Kota). The first verdict is that all political parties, including already existing ones, must pass a verification process set by the General Election Commission (KPU) in order to compete in the next election. Secondly, the 3.5 percent Parliamentary threshold (PT) will only be applicable for DPR but not for both DPRD Provinsi and Kabupaten/Kota.

This article argues that the Court’s decision is vital in supporting Indonesia’s democratic consolidation process. In particular, the decision will improve not only the quality of the party system, which will improve party institutionalization, thus strengthening the linkage between voters and political parties.

Equal and fair verification process

There are three reasons for why all parties should undergo the verification process. First, it encourages political parties to improve party institutionalization. With this requirement, political parties will have to prove that they are maintaining their “systemness”, which according to Randall and Svåsand (2002) is “… the increasing scope, density, and regularity of the interactions that constitute the party as a structure.” It requires existing political parties to build better party machinery and circumvent the skeletal-survivability strategy as commonly practiced. However, this verification is only tackling one of the issues in party institutionalization. The other factors, including value infusion, decisional autonomy, and reification, will need more than a verification process.

The second reason is that the verification process provides a fair barrier for opportunistic political entrepreneurs to make new parties every election with insignificant public support. In the new election law, the requirements for a political party to be able to compete in the next election are more stringent than the previous law. For instance, the requirement for a political party to have structural branches with higher magnitude, which varies from the national to sub-district level, is actually difficult to achieve for a party without deep-rooted support and vast resources. Subsequently, a political party with a good party institutionalization should not be worried about this regulation, because it will be easy for the party to surpass the requirement. However, one should note that the effectiveness of the verification process as a barrier for political entrepreneurs will depend on the performance of the General Election Committee (KPU).

The third reason, as argued by the Court, is that it provides an equal playing field for all political parties. Non-discriminatory treatment to all subjects of democracy is an essential value of a democratic system. The Court has correctly pointed out that it would be unfair if the existing parties do not have to go through the verification because, as mentioned earlier, the requirement in the new law is more stringent.

A dilemma between proportionality and simplification of party system

Regarding the PT, the Court annulled the regulation for the implementation of 3.5 percent PT at the DPRD level, as well as at both provincial and district/ municipality level. However, the 3.5 percent PT for the DPR is still applicable. The Court argued that it understands that PT is necessary to simplify the party system. However, Indonesian plurality and political aspirations at the regional level are also important and must to be taken into account.

            Ideally, there should be no PT at both the national and regional levels because the verification process ought to simplify the party system. Again, only parties with good institutionalization and sufficient resources can compete in elections. One should remember that the requirement for a party to enter elections is applied both at the national and regional level. Thus, only parties with national coverage can also compete at the regional level. Subsequently, it will discourage minor parties from entering elections, not because of discrimination of PT, but because they cannot pass the requirements in verification process.

However, the Court’s decision on PT should be appreciated as an effort to accommodate both interests. By allowing a PT of 3.5 percent at the national level, it will become a filter for smaller parties that only have strong bases in several areas but do not have nation-wide support. At the same time, smaller parties will still be able to represent their strong bases at the regional Parliament, which is more relevant with regard to their ties and proximity with their bases of support at that particular region.

In this context, it supports one of the vital elements of democracy, which is interest optimization. Alan Ware (1987) suggested that formal arrangement in a democracy should optimally correspond to the interests of the largest number of people in the relevant arena. The DPR and DPRD operate on different levels. Therefore, the degree of representativeness between both institutions is also different. A strong party at the regional level in each particular province or district/municipality does not necessarily represent the interests of the voters at the national level. Therefore, the application of PT for DPR is acceptable.

Endnote

The MK’s verdict has the potential to improve the stability of the party system in Indonesia. More importantly, it could also improve the linkage between political parties and their voters, who are constantly being questioned in Indonesia’s multiparty system in the post-Suharto era.

However, despite the efforts to improve the quality of electoral laws and system by the MK, DPR, the Government, and civil societies, the KPU as the executioner plays a vital role in determining the quality of elections in Indonesia.

Indonesia’s electoral law might be one of most complicated laws in the world. Despite its shortcomings, current electoral laws are suitable for a country like Indonesia. Maybe now is the time for the world to learn from Indonesia.

Yoes C. Kenawas is a graduate student and research analyst at the Indonesia Programme of the S. Rajaratnam School of InternationalStudies (RSIS), Singapore. The opinions expressed are his own.