Open-list or Closed-list Proportional System
All electoral systems have the same opportunity to be applied in Indonesia with their respective strengths and weaknesses. Learning from election practices in the world, there is no perfect electoral system.
The Constitutional Court is currently doing judicial review on the articles governing the open-list proportional system in the Election Law.
The court was asked to change the electoral system for members of the legislative bodies from an open-list proportional system into a closed-list proportional system (Kompas, 30/12/2022). A number of politicians and citizens have made requests for judicial review to cancel Article 168 Paragraph 2 because they are considered to be contrary to the 1945 Constitution.
Since the beginning of the Reform era, the application of a proportional electoral system has always been debated. In the history of elections in Indonesia, the proportional system is the electoral system chosen by policymakers. The variations are relatively limited: using closed, half-open or fully open-list proportional.
Since the beginning of the Reform era, the application of a proportional electoral system has always been debated.
Closed-list proportional system was used in the 1955 election (with the difference that there were individual candidates), throughout the New Order era until the 1999 election. In the 2004 election an open "half" proportional system was applied. Open (full) proportional system has been implemented since the Constitutional Court Decision No. 22-24/PUU-VI/2008 ahead of the 2009 election, correcting the implementation of "half" open proportional to fully open, which is valid until the 2024 election.
Debate over three variations of the proportional system always arises before the election. The same debate is repeated with the existence of a judicial review to the Constitutional Court regarding which variant is relevant, constitutional and the best to be implemented in Indonesia.
All constitutional
Textually, theoretically and contextually, the three variants are not a violation of the constitution (UUD 1945). Likewise, the use of any electoral system; proportional (open, semi-open or closed), majoritarian or mixed; in essence does not violate the 1945 Constitution.
Likewise, with the application of extreme or moderate multi-party systems, dual parties, presidentialism with a majority system and district systems with many representatives. All the choices of variations in the electoral system, both for legislative, presidential and local elections, do not violate constitutional principles.
Philosophically, all electoral systems currently available are democratic instruments for a peaceful change of leadership and power that do not violate any country's constitution, unless there is an exception implied in a country's constitution. Because of this, considerations of the unconstitutionality of the electoral system actually do not have sufficient theoretical, textual, contextual and substantial justification.
Also read:
> The Old Story of the General Elections System
> Majority of House Factions Oppose Closed-List Proportional System
Even though Article 22 E of the 1945 Constitution states that election participants are political parties, this does not mean that it is not interpreted as referring only to a closed proportional system because in essence the meaning of political parties as election participants refers to the principles of party organization, party cadres and other derivatives.
The position of an individual or a person is not an individual candidate like in the 1955 General Election. Individuals or people continue to invest in the party because they have to be nominated by the party, not of their own free will. Without the approval of the party, it is impossible for an individual to become a candidate for legislative bodies (caleg) in any system. This is a universal principle that does not need to be debated.
This interpretation is in line with the nature of political parties according to theory and laws, such as Article 1 Paragraph 1 of Law No. 2/2011 concerning Political Parties.
In more detail, the scope and content of political parties in other articles also shows the meaning of political parties encompassing the organization, organizational structure, values, management and cadres. Limiting a party to only a "political-party symbol" that has the right to be displayed on the ballot paper is part of a substantial deviation because candidates do not represent themselves, but are representatives of two entities, the party and those they represent.
This is usually used as the basis for an open-list proportional system, in which the stages of converting votes into party seats are carried out after the accumulation of political party and legislative candidate votes, which are then calculated by divisor sainte league together with votes from other parties in an electoral area. In this way, the universal principle applies, that all electoral systems do not conflict with the constitution of a country as long as it is not clearly stated in the constitution.
The problem is that the choice of an electoral system is generally a matter of the "taste" of the party elite and the lawmakers. In the Indonesian context, "taste" is locked by the authority of the Constitutional Court that is final and binding, which stipulates that the formulation of the electoral system in Indonesia is open-list proportional (Decision of the Constitutional Court No. 22-24/PUU-VI/2008, 23 December 2008).
The decision model at that time did not provide options such as the Constitutional Court Ruling No 55/PUU-XVII/2019, which states that there are five models of constitutional simultaneity of elections that lawmakers can choose from.
The proportional system dilemma
Electoral reform in Indonesia only revolves around sensitive issues that keep recurring, namely the legislative election system, the threshold for parliament, the formula for converting party votes into seats and the threshold for presidential and vice-presidential candidacy. In fact, in terms of the electoral system, the three variants of the proportional system carry inherent defects.
The debate on the advantages and disadvantages of each variant is closely related to the implications in its application. Theoretically or practically, the inherent defects of the proportional system are often juxtaposed in an antagonistic way.
First, a proportional system with any variant will still highlight the role and function of political parties in the process of political candidacy and recruitment. The difference is that in proportional "half-open" and open-list, voters are given space to make choices based on the most votes on the list of party candidates as members who are entitled to occupy party seats.
However, what needs to be remembered is that it is unlikely that a candidate will get an automatic seat (as in a majoritarian system) if his party does not pass the parliamentary threshold and obtain a quota of seats in the electoral district. Closed proportional is somewhat different because party seats will be given automatically to candidates with small serial numbers who have been registered with the election organizers.
Also read:
> Public Opinion over 2024 Presidential Candidacy
Second, the consequence of political competition, closed proportionally, encourages political parties to work and build institutional performance. In general, parties work more "actively" than in open-list proportions, where candidates must earnestly obtain the support of votes; in addition to obtaining the most votes, they must also boost party votes in order to obtain a quota of seats. Parties are like event organizers.
Election data for 2009, 2014 and 2019 show this phenomenon. Parties rely the campaign funds on the majority of candidates (93 percent); the remainder comes from party campaign funds. Party capital dramatically decreases and candidates have to struggle with their own patterns of struggle.
Open-list proportional also encourages heavy, wild competition within parties and between parties. In fact, there is a deviation in the working network between legislative candidates that is not linear with the coalition pattern built at the national level. Given Party A, which is in coalition with presidential candidate B, candidates from Party A can collaborate with Party G candidates who are in a different coalition for presidential candidates in an electoral district.
The lack of party work in an open-list proportional manner is considered to be an obstacle for long-term institutionalization of political parties. Parties tend to be oriented toward votes, by opening up as much space as possible for candidates who have the potential to gain votes, so that cadres, activists and party officials may not have the opportunity to become members of the legislative bodies due to heavy electoral democracy.
Third, the phenomenon of transactional politics. The three variations of the proportional system both provide space for transactional politics, including money politics. The only difference is the degree and magnitude. Open-list proportional political and economic transactions are far more extensive and intense as a result of multi-layered and expensive political costs.
In closed-list proportion system, the space for transactions is "narrowed", which may occur at the time of determining the order of the candidate-list numbers, even though some parties have started using the combined method and not all transactions.
Fourth, party oligarchy is considered to grow far more in closed-list proportions when parties do not have a transparent recruitment and candidacy system. Those who are close to the party elite have a much greater level of possibility of obtaining small serial numbers. In that context, actually, closed-list proportional can also provide space for party officials and activists [workers] to get the chance to be elected by obtaining a small serial number compared to open-list proportional, which is based on "electability, fund and probability”.
Fifth, in terms of women's representation among elected candidates, the chances are much higher in closed-list proportions than in open-list proportions. The zig-zag nomination method by giving obligation to certain small numbers for women candidates is only possible in closed-list proportional. That is, the opportunity to encourage the representation of 30 percent of women in parliament is much more open to closed-list proportional than open-list proportional.
Also read:
> Evaluation of the 2019 Simultaneous Elections
Sixth, opportunities for competition space and the relationship between candidates and representatives. In proportional, there is an opportunity for voters to recognize the candidate they will choose, there is a "proximity" of the candidate with the voters and the party oligarchy is relatively reduced. On the other hand, in closed proportions, the tendency to vote for "a cat in a sack" and the high level of party oligarchy has been proven in the implementation of this system in the previous era.
Seventh, the level of compatibility with other systems. Open proportionality to the design of simultaneous elections such as the 2019 Election creates complications and technical complexity in holding elections. The simultaneous election design that allows for a tail-coat effect does not occur as a result of the design of the election ballot papers, which are separated between the legislative (DPR) and presidential elections.
Technically, it is almost impossible to unite the votes for the general election and the presidential election with open proportionality due to the large number of parties and candidate names that must be listed on the ballot papers. On the other hand, with closed proportional, it is very possible to apply so that in addition to saving money it also makes technical implementation easier. At the legislative election level (provincial and regency/city legislative council, DPRD) it can also be put together on one sheet of ballot paper, with different sides.
Court decision options
In terms of principle and philosophy, all electoral systems have the same opportunity to be applied in Indonesia with their respective strengths and weaknesses. Learning from election practices in the world and also in Indonesia, there is no perfect electoral system.
The choice of electoral system is a matter of political taste, the will of the elite and the big interests to be achieved. The question is whether the court will decide by rejecting the request for judicial review of the articles governing the open-list proportional system in the Election Law or will it make a new legal breakthrough, such as in the Constitutional Court Decision No. 55/PUU-XVII/2019 by providing the option that all electoral systems have the same visibility, depending on the will of the lawmakers (House and government).
Moch Nurhasim
Director of Political, Legal, Defense and Security at DKP BRIN
This article was translated by Kurniawan Siswo.
