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TEMPO.CO, Jakarta - Minister of Law Supratman Andi Agtas ensures that the revision of Law Number 7/2017 on Elections will be guided by the five constitutional engineering guidelines provided by the Constitutional Court. The Court provided five constitutional engineering guidelines when it decided to remove the presidential threshold provision in Article 222 of the Election Law.
"Constitutional engineering should not be passed on the acquisition of votes or seats. That's the point. Well, because of that, this will be fulfilled," Supratman said after the Declaration of Joint Commitment to Integrity Zone Development and Launching of the Ministry of Law's Digital Transformation in Jakarta on Tuesday, January 7, 2025, as quoted by Antara.
The minister emphasized that his party respects and complies with the Constitutional Court's decision to remove the threshold requirement for nominating the president and vice president because it is considered contrary to the 1945 Constitution.
The Gerindra politician said that the Constitutional Court's decision is final and binding, so there are no other legal remedies. For this reason, he has assigned the Director General of Laws and Regulations of the Ministry of Law to study it.
The reason is that although the DPR initiated the election and the changes in the Pilkada Law (regional election law), the government must still prepare. "Therefore, the Ministry of Home Affairs (Kemendagri) will also prepare," he said.
Supratman explained that the Constitutional Court did not necessarily remove the threshold and allow all political parties to nominate the president. According to him, the Court has given legislators, namely the DPR and the government, space to conduct constitutional engineering by guiding five things.
"But whether all political parties will be allowed to nominate each other, it will be discussed in the revision of the Law on elections, political parties, and regional elections," he said.
On the other hand, even though there will be no presidential threshold, Menkum emphasized that presidential and vice presidential candidates still need strong support from parliament. Moreover, he said that presidential and vice presidential candidates still want their programs to get support, including financing and regulations, where the State Budget is approved together with the DPR.
Yusril: The Government will Listen to All Parties' Input to Revise the Election Law
Coordinating Minister for Law, Human Rights, Immigration, and Corrections (Kumham Imipas) Yusril Ihza Mahendra said the government will listen to input from all parties in changing the article on the presidential threshold requirement in the Election Law.
According to Yusril, input is necessary so that the formulation of new norms to replace Article 222 of the Election Law can be in accordance with the times and the five constitutional techniques in the legal considerations of the Constitutional Court's decision.
"I believe that of course there will be changes to Article 222 of the Election Law, and this can emerge as an initiative from the government, it can also emerge from the House of Representatives (DPR)," Yusril said at the anniversary of North Sumatra Islamic University monitored online in Jakarta, Tuesday, January 7, 2025, as quoted by Antara.
The constitutional law expert said relevant ministers were still consolidating and discussing how changes to the article regarding the presidential threshold would be implemented.
However, Yusril emphasized that the government and the DPR will listen to all inputs and considerations submitted by all parties and stakeholders, including from political parties participating in the elections, non-participating political parties, academics, and various community leaders.
Yusril views that any desire to revive the presidential threshold after the Constitutional Court's decision could be legalized by the DPR. However, Yusril believes that if the restriction reappears, the Constitutional Court will cancel it.
From an academic point of view, he said, if using thematic and systematic interpretation by connecting the election articles in Article 22E of the 1945 Constitution and the article regulating the election of the president and vice president in Article 6A, the presidential threshold actually does not exist and cannot exist.
Article 6A of the 1945 Constitution states that presidential and vice-presidential candidates are proposed by a political party or a coalition of political parties participating in the election before the election (members of the DPR and DPRD), as stipulated in Article 22E of the 1945 Constitution.
Yusril considered that there was constitutional engineering by the legislators to limit presidential and vice-presidential candidates, as stipulated in Article 222 of the Election Law. The previous engineering was justified by the Constitutional Court on the grounds of strengthening the presidential system. However, Yusril said that the Constitutional Court Decision Number 62/PUU-XII/2024 dated January 2, 2025 actually changed the Constitutional Court's stance so far.
Five Guidelines for Constitutional Engineering from the Constitutional Court
The Constitutional Court provided five points of constitutional engineering guidelines when deciding to remove the presidential threshold provision in Article 222 of the Election Law.
Constitutional Court Judge Saldi Isra read out the Court's reasoning in Decision Number 62/PUU-XXII/2024 in the Plenary Session Room of the Constitutional Court, Jakarta, Thursday, January 2, 2025, saying that the guidelines for constitutional engineering can be considered by lawmakers in revising the Election Law so that the number of presidential and vice presidential candidates does not increase.
The five guidelines for constitutional engineering for lawmakers to carry out constitutional engineering are, first, all political parties participating in the election have the right to propose a presidential and vice presidential candidate pair.
Second, the nomination of presidential and vice-presidential candidates by a political party or a coalition of political parties participating in the election is not based on the percentage of the number of seats in the DPR or the acquisition of nationally valid votes.
Third, in proposing presidential and vice-presidential candidate pairs, political parties participating in the election can join as long as the combination of political parties participating in the election does not cause the dominance of a political party or a coalition of political parties so as to cause limited presidential and vice-presidential candidate pairs and limited voter choices.
Fourth, political parties participating in the election that do not propose a presidential and vice-presidential candidate pair are subject to sanctions prohibiting them from participating in the next election period.
Fifth, the formulation of the aforementioned constitutional engineering, including changes to the Election Law, involves the participation of all parties who have concerns (concern) with the organization of elections, including political parties that do not obtain seats in the DPR by applying the principle of meaningful public participation (meaningful participation).
Although the presidential threshold norm no longer applies, the Constitutional Court emphasized that it must still take into account the potential for the number of presidential and vice presidential candidates to be too large, which has the potential to damage the nature of the presidential election.
Saldi asked that the number of presidential and vice presidential candidates be equal to the total number of participants in the election. As the number of political parties participating in the election is 30, for example, in this political contestation, there must be 30 pairs of presidential and vice presidential candidates proposed by political parties participating in the election.
M. Raihan Muzzaki and Antara contributed to the writing of this article.
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