
Photo from mkri.id
After nearly 17 years of repeated legal challenges by civil society groups and political parties, the Constitutional Court (Mahkamah Konstitusi, MK) finally annulled the electoral threshold for presidential and vice-presidential nominations on 2 January.
This threshold, enacted in 2003, shortly before Indonesia’s first direct election in 2004, was seen as the main barrier to more inclusive elections in the world’s third largest democracy. In practice, the threshold provisions have led political parties to form contrived coalitions, with transactional politics dominating the process.
Specifically, the court declared Article 222 of Law 7 of 2017 on General Elections unconstitutional. This requires a political party or a coalition of political parties to hold at least 20% of the seats in the national legislature (DPR), or to secure 25% of the valid national votes in the preceding legislative election, to be eligible to nominate presidential and vice-presidential candidates. The same requirement appeared in Article 9 of the previous election law, Law 42 of 2008, meaning that the current threshold regime has shaped the last four Indonesian presidential elections.
A threshold was first introduced by Articles 5(4) and 101 of Law 23 of 2003 on General Elections. At the time, elections for the legislature and the President were not held concurrently: legislative elections were held first, followed by the presidential election approximately three months later. Under the 2003 election law, the threshold was set at a minimum of 15% of the seats in the DPR or 20% of the votes in the legislative election (although a transitional provision for the 2004 presidential election set the threshold at a minimum of 3% of DPR seats or 5% of the legislative election votes).
The Constitutional Court’s new ruling is a welcome respite amidst political doom and gloom in the country following the election of Presidential Prabowo Subianto last year, with many fearing he hopes to unravel Indonesia’s democratic system.
So, why did the court finally rule against the threshold system?
‘Anti-threshold’ Justices tip the balance
The presidential nomination threshold has been challenged before the Constitutional Court many times since 2008. Its constitutionality, however, was consistently upheld until now.
This is because the Justices were, for years, of the opinion that a minimum threshold for candidate nomination constitutes a “legal policy.” This means that the presence or absence of a presidential candidacy threshold is a matter under the authority of the legislature. The logic goes that if such policy choices do not exceed the DPR’s authority, do not constitute an abuse of power, and do not blatantly contradict the provisions of the 1945 Constitution, then they are not subject to judicial review.
In an earlier judgment – Decision No. 14/PUU-XI/2013 – the Constitutional Court had confirmed the constitutionality of holding the presidential and legislative elections on the same day. This meant that when the DPR formulated concurrent elections for the 2019 presidential election, the 20% DPR seat or 25% election vote threshold had to be based on the preceding election’s results.
Between 2017 and 2024, there were no less than 36 legal attempts by various parties to revoke Article 222 of the 2017 Election Law. But the court refused to shift its position on the matter until this year, when it decided a petition filed by four students of Sunan Kalijaga University in Yogyakarta.
In its latest Decision – 62/PUU-XXII/2024 – the Constitutional Court emphasised that the implementation of the presidential nomination threshold during recent presidential elections has violated the principles governing the formation of legal policies, rendering its existence unconstitutional. This ruling was made by a clear majority but was not unanimous; of the court’s nine Justices, two —Anwar Usman and Daniel Yusmic P. Foekh—dissented.
The recent appointments of Justices Arsul Sani and Ridwan Mansyur seem to have contributed to reshaping the court’s internal dynamics. Ridwan is a Justice nominated by the Supreme Court, whose position is relatively neutral regarding the presidential nomination threshold case. However, Arsul is a former legislator from the United Development Party (PPP), a small Islamic party. The PPP, which has long opposed the 20 percent presidential nominations threshold, failed to pass the parliamentary threshold and lost their seats in the DPR in the 2024 election after receiving less than 4% of the vote. Many analysts attribute PPP’s failure to its inability to nominate a presidential candidate who aligns with PPP’s identity as an Islamic party.
It is also worth noting that since 2017, Justices Suhartoyo and Saldi Isra, currently serving as Chief Justice and Vice Chief Justice, have consistently found the presidential nomination threshold unconstitutional. Their leadership is now seen as having facilitated the Court’s change in position on this matter. Certainly, three other Justices—Arief Hidayat, Enny Nurbaningsih, and M. Guntur Hamzah—reversed their previous stance that the presidential nomination threshold was valid legal policy in order to strike it out.
Why the presidential threshold is unconstitutional
According to the majority in Decision 62/PUU-XXII/2024, the presidential nomination threshold in Law 7 of 2017 on General Elections not only contravenes the people’s sovereignty and political rights but also breaches morality and rationality, and constitutes intolerable injustice. It therefore contradicts the 1945 Constitution.
But the majority went beyond problematising the level of the threshold in Law 7 of 2017, ruling that any law imposing any kind of presidential nomination threshold—regardless of the percentage—will violate Article 6A(2) of the 1945 Constitution.
A key factor influencing the court’s departure from its previous position was its concern about what it saw as disturbing developments in Indonesia’s electoral process. It observed that maintaining a minimum percentage threshold for presidential and vice-presidential nominations creates a strong likelihood of presidential elections featuring only two candidate pairs. This is a problem, the majority said, because when only two tickets contest the election, the public is prone to polarisation, which has potential to threaten the fabric of Indonesian society.
Moreover, if the threshold remained in the election law, there is a real possibility, the majority observed, that future presidential elections could see only one candidate pair on the ballot (that is, an uncontested election). This is a real concern. The emergence of uncontested elections has already been observed in regional head elections (pilkada). In fact, there is a growing tendency toward one-horse races in pilkada, with candidates competing against blank boxes.
The majority argued that in such conditions the essential meaning of Article 6A(1) of the 1945 Constitution—that the president be elected directly by the people—would be nullified. Or, at the very least, it would deviate from one of the objectives sought by the constitutional amendments, namely guaranteeing the implementation of popular sovereignty and broadening public participation in line with democratic developments.
In addition to abolishing the threshold, the court in Decision 62/PUU-XXII/2024 also offered guidance for the DPR to undertake “constitutional engineering” when revising Law No. 7 of 2017. Specifically, it asked the DPR to consider five key points:
- Right to Nominate: All political parties contesting in the election should be entitled to nominate a president and vice-president
- Non-reliance on Seat/Vote Percentages: The nomination of a candidate pair by a political party or coalition of political parties should not depend on the percentage of DPR seats or the percentage of valid national votes.
- Coalitions without Dominance: In nominating candidates, political parties may form coalitions provided that does not result in the dominance of any one party or coalition, which could limit the number of candidate pairs and thereby restrict voter choice.
- Sanctions for Non-nominating Parties: Political parties that do not nominate a candidate pair should be subject to sanctions, such as a ban on participating in the next election.
- Meaningful Participation: The amendment of Law No. 7 of 2017 must involve all stakeholders concerned with electoral administration—including political parties without seats in the DPR—through meaningful public participation.
Is the ruling a boon for democracy? It depends
Decision 62/PUU-XXII/2024 is final and binding and will apply to the 2029 presidential election. If the DPR passes the amendments the court requires, every political party participating in that election will have the right to nominate its best candidates for the presidency. However, this is not a guarantee that Indonesia will have an entirely inclusive election any time soon.
This is because a political party will first have to qualify to participate in the legislative election before it can nominate a candidate. Given the stringent requirements under the Election Law for parties to become eligible election contestants, political parties—particularly non-parliamentary ones—must work hard to qualify.
It will therefore be critical for civil society groups to monitor the amendment process closely to ensure that the legislature does not impose more onerous requirements for political parties to be eligible merely to prevent the emergence of competitors.
Moreover, to ensure that the implementation of Decision 62/PUU-XXII/2024 is not be subverted by the oligarchic elite, the nomination process within political parties must be inclusive and democratic. It should not be determined by elites behind closed doors or based on political horse trading, as has so often been the case in the past. This will be another challenge for civil society monitors.
One approach would be for political parties can hold primaries to nominate candidates. This would ensure that nomination proceeds via a bottom-up process rather than an exclusive or elite-dominated top-down decision overshadowed by transactional politics or individual pragmatism.
To conclude, the Constitutional Court’s ruling is a breath of fresh air for more inclusive, transparent, and competitive presidential elections in Indonesia. It should push the DPR to reform Indonesia’s electoral law and governance to create a fairer system. That said, the public must be vigilant in overseeing amendment of the Electoral Law to ensure it results in the reforms necessary to enhance the quality of Indonesia’s elections.
The fight for a better democracy is far from over.