The presidential threshold regulated in the General Election Law required a presidential threshold of 20% that had been applied in the previous presidential election. However, many parties disagree with this regulation. To this day, it is recorded that MK has issued 13 rulings, and all proposed judicial reviews were declined by MK.

Responding to this issue, the Constitutional Law (HTN) expert of the Faculty of Law (FH) Universitas Sebelas Maret (UNS) Surakarta, Dr. Agus Riewanto, stated that the presidential threshold is not a constitutional issue. Therefore, it is inappropriate for political parties to propose another judicial review of the regulation. He considered the presidential threshold as a presidential election procedure as a rule derived from Article 6A Paragraph (2) UUD 1945.

“If I read from the ruling, MK stated that presidential threshold is not a constitutional issue, but an open legal policy,” Dr. Agus Riewanto stated in Tribun Overview Thursday (6/1/2022).

Article 222 of General Election Law mentioned that presidential candidates could be proposed by political parties or coalition of political parties that participated in the general election that received 20% of elected DPR or 25% of national elected DPR in the previous election. While Article 6A Paragraph (2) UUD 1945 mentioned that “President and Vice-President candidate is proposed by political party or coalition of political parties participated in the general election before the general election implemented.”

Dr. Agus Riewanto believed that political parties that submitted another judicial review against the regulation would face another rejection from MK as a consistent ruling, especially when their propositions are not far different from the previous plaintiffs. “Because theoretically, MK decision is not wrong, if we consider the regulation in Article 222, the stepping stone is in Article 6A Paragraph (2) UUD 1945,” he explained. Therefore, the debated regulation does not contradict the constitution as a regulation on the detailed election process.

“If we read Article 6A Paragraph (5) UUD 1945, the implementation of Presidential election is regulated in law. Therefore, the presidential threshold is a normative regulation and not a constitutional issue, but depends on the lawmaker,” Dr. Agus Riewanto added.

Positive Side of Presidential Threshold

Although the 20% presidential threshold is considered to be problematic by several political parties, this regulation could actually balance the power of the President and DPR. Dr. Agus Riewanto mentioned that he does not want the result of the 2004 election that led to the poor relationship between the President and DPR to re-occur. In the 2004 election, Susilo Bambang Yudhoyono (SBY) and Jusuf Kalla (JK) won the presidential election, but their political party has little power in DPR, resulting in a poor dynamic between the executive and legislative bodies and often occurring deadlock between the President and DPR prompting the regulation on the presidential threshold.
“To change this, MK ruling is not needed; the law could be amended by the President and DPR. The issue is both agreed not to change the regulation,” he concluded. Humas UNS

Reporter: Y.C.A. Sanjaya
Editor: Dwi Hastuti

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Discussing the topic of “MK’s Role and Challenges in Achieving Democratic Political and Legal System,” the Vice-Chairman of MK, Prof. Aswanto, and MK Judge, Prof. Sardi Isra, who attended the lecture as speakers, encouraged FISIP UNS students to understand the design of Indonesian constitution. Although constitutional law falls under a common discussion topic for the Faculty of Law (FH), it is also essential for students in FISIP and other faculties to master the basic knowledge because the judicial process in MK often involves multidisciplinary consideration. The comprehension regarding the topic for FISIP students is also encouraged so that students understand the separation of power, function, and duty of each state institution as regulated in the 1945 Constitution (UUD 1945)

“Students in each program need to fully understand how the constitution works in a country. Constitutions provide a minimalistic exhibit of a country. Read the constitution, what is the form of the state, the form of the government, the relationship between state institutions, and the relationship between the state and its citizens,” Prof. Sardi Isra stated.

Prof. Sardi Isra also stated that constitutional discussion is not limited to the legal system but also the political system. He explained that the state constitution would directly cause friction with the political interest requiring the check and balance principle in balancing the law and power.

“Therefore, it needs to be anticipated by designing different institutions that could prevent certain institutions from taking actions against the constitution,” he added.

Considering this urgency, MK is included as a new state institution two years after the reformation through UUD 1945 amendment performed by MPR. This establishment is the adoption of the Constitutional Court concept that put MK as one of judiciary power in 2001. The inclusion of MK into the Indonesian state structure is regulated in Article 24 paragraph (2), paragraph 24C, and paragraph 7B of UUD 1945 after the third amendment stipulated on 9 November 2001.

“One of the considerations to establish Constitutional Court is frequent development or developed laws are substantially not in line with the norms or content of UUD,” Prof. Aswanto stated.

To the FISIP UNS students attending the general lecture, Prof. Aswanto stated that MK role in the reformation era is increasingly important to balance the executive and legislative powers. In his opinion, these two powers should not dominate to attack one another because it will affect the political condition negatively. For example, the President and vice president’s impeachment before the reformation is regulated in the UUD 1945. However, he thinks that impeachment should be based on constitutional law instead of a purely political agenda.

“If there is a disagreement between the DPR and the President, many presidents could be impeached in the mid of their office. That’s why we need an institution that could assess if what is decided by DPR, is the President really commit a violation,” he added.

MK is also vital to ensure that there are no laws (UU) developed with content that contradict UUD 1945. Recently, MK ruled that UU Number 11 of 2020 regarding Cipta Kerja as conditionally unconstitutional. In their ruling, MK mentioned UU Cipta Kerja’s development process did not follow the definite and standard method and means and did not follow the systematic formation process for a law. There were also corrections of writing on the content of the law after the agreed meeting between DPR and the President.

“If the solution is handed to the creator of the UU, usually they will keep it although there are mistakes. That’s why we need an institution that could assess if the prepared UU is in line with the UUD 20145,” Prof. Aswanto concluded. Humas UNS

Reporter: Y.C.A. Sanjaya
Editor: Dwi Hastuti

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