The Constitutional Court (MK) has ruled that the parliamentary threshold of four percent of the national valid votes as stipulated in Law No.7/2017 on the General Elections is not in line with the principles of people's sovereignty, electoral justice, and violates the legal certainty guaranteed by the Constitution.

However, the Constitutional Court ruling is not retroactive as it will only be applicable in the next general elections in 2029 and in the subsequent elections.

The Court hearing sessions had been held since a petition filed by the Association for Elections and Democracy (Perludem) last year. The ruling was read out in a session held at the Plenary Session Room of the Constitutional Court on Thursday, February 29, 2024.

"The [Constitutional] Court partly grants the petition filed by the Petitioner. Norms of Article 414 paragraph (1) of Law Number 7/2017 on the General Elections are constitutional as long as they remain in force for the 2024 Election for the House of Representatives (DPR) membership and conditionally constitutional to be applied in the 2029 House of Representatives Elections and subsequent elections as long as changes have been made to the parliamentary threshold norms and the amount or percentage of the parliamentary threshold set by the specified requirements," Constitutional Court Chief Justice Suhartoyo said while reading out the verdict on Thursday, February 29, 2024.

Perludem, an election watchdog, has challenged the norms of Article 414 paragraph (1) of the Election Law along the phrase "at least 4 percent of the total number of valid votes nationally". In detail, Article 414 paragraph (1) of the Election Law states, "Political Parties participating in the Election must meet a threshold of at least 4 percent of the total number of valid votes nationally to be included in the determination of the acquisition of seats for DPR members".

Perludem cited the relationship between the parliamentary threshold and the proportional electoral system. It argues that parliamentary threshold is one of the important variables of the electoral system that will have direct impact on the process of converting votes into seats. According to Perludem, the provision of the parliamentary threshold should not be unrelated to the provision in Article 168 paragraph (2) of the Election Law, which stipulates that elections to elect members of the DPR, as well as legislative councils at provincial and regency/city levels, are conducted under an open proportional system.

The election wathcdog attributes this parliamentary threshold provision to the inconsistency or uncertainty between the 4 percent parliamentary threshold provision and the result of not realizing a proportional electoral system because the election results are not proportional.

Deputy Chief Justice Saldi Isra said in his legal considerations Court that the Court did not find the basis for adequate methods and arguments in determining the parliamentary threshold in question, including the methods and arguments used in determining at least 4 percent of the total number of valid votes nationally as specified in Article 414 paragraph (1) of the Election Law.

Disproportionality

In addition to the above arguments, Saldi said that the parliamentary threshold clearly has an impact on the conversion of valid votes into the number of DPR seats, which is related to the proportionality of the election results. In other words, the number of votes obtained by political parties participating in the election is in line with the seats they won in parliament so that the election results become proportional.

In its legal considerations, the Court explained that in the context of fulfilling the principle of proportionality, for example, in the 2004 General Election, there were 19,047,481 valid votes or around 18 percent of the total valid votes nationally that could not be converted into seats. Similarly, in the 2019 elections, there were 13,595,842 votes that could not be converted into DPR seats or around 9.7 percent of the valid votes nationally. Although in the 2014 elections there were "only" 2,964,975 votes that could not be converted into DPR seats, or around 2.4 percent of the national valid votes, factually the number of political parties in the DPR was more than the results of the 2009 and 2019 elections, namely 10 political parties.

Saldi added that this empirical stretch confirms that there has been disproportionality between the votes cast by the voters and the number of political parties in the DPR during the implementation of the parliamentary threshold in the elections for the DPR membership. This fact proves that the constitutional rights of voters in elections are forfeited or discounted on the grounds of simplifying the number of political parties in order to create a strong presidential system of government supported by effective representative institutions.

"The parliamentary threshold policy has turned out to reduce the voterts’ rights. The people's right to be elected is also reduced when they get more votes but do not get elected as DPR members because their party does not meet the parliamentary threshold," said Saldi.

According to the Court, Saldi continued, the determination of the number or percentage of the parliamentary threshold, which is not based on the basis of adequate methods and arguments, has clearly caused disproportionality in the election results because the number of seats in the DPR is not proportional to the valid votes nationally.