Jurnal Penelitian Hukum De Jure

Volume 21 Number 2, June 2021

P-ISSN: 1410-5632, E-ISSN: 2579-8561
Accredited No: 10/E/KPT/2019
This work is published under license Creative Commons Attribution 4.0 International License

THE RELEVANCE OF THE APPLICATION OF THE PRESIDENTIAL

THRESHOLD AND THE IMPLEMENTATION OF SIMULTANEOUS ELECTIONS
IN INDONESIA

Rizki Bagus Prasetio*, Febri Sianipar**

Research and Development Board for Law and Human Rights
*The Ministry of Law and Human Rights of the Republic of Indonesia, Jakarta
**General Election Commission of the Republic of Indonesia, Jakarta
Corresponding email: rizkibagusprasetyo@gmail.com
Paper received on: 31-03-2021; Revised on: 03-05-2021; Approved to be published on: 04-05-2021
DOI: http://dx.doi.org/10.30641/dejure.2021.V21.267-284

ABSTRACT
This research is intended to discuss the relevance of the application of presidential threshold and the
implementation of simultaneous general elections in Indonesia. The concept of simultaneous general elections
is the implementation of legislative and executive elections which are carried out simultaneously. The
implementation of the first simultaneous general elections in Indonesia was motivated by a request for a
judicial review of Law Number 42 Year 2008 concerning the Election of the President and Vice President. The
Constitutional Court issued the Constitutional Court Decision Number 14/PUU-IX/2013 with the decision
granting part of the request which later gave birth to the implementation of simultaneous elections in Indonesia
starting in 2019. However, from the various articles that were reviewed, there was one article that was not
decided by the Constitutional Court, namely regarding the presidential threshold. The Constitutional Court is
of the opinion that the regulation regarding the presidential threshold is an open legal policy for the legislature.
This paper is a normative legal research, with conceptual approach and statute approach to find answers
to existing problems. The research source used is secondary data consisting of primary legal materials and
secondary legal materials as explanation for primary legal materials. From the results of this research, it was
found that the simultaneous elections and the presidential threshold were not compatible. On the one hand, the
presidential threshold aims to simplify the number of parties.
Keywords: relevance; simultaneous general election; presidential threshold

INTRODUCTION the people based on the matters of their state on

the power of the people so that the people are
As one of the implementations of democratic
sovereign2. The concept of democratic sovereignty
practice, the General Election is carried out in
in the hands of the people means that the owner of
order to realize a government system which
the highest power is the people. People’s power
has sovereignty of the people. In Indonesia, the
is channeled and administered according to the
concept of democratic governance is explicitly
mechanism of the constitutional procedure of
stated in Article 1 Paragraph (2) of the 1945
the 1945 Constitution3. Previously, it was known
Constitution of the Republic of Indonesia which
that the people could not fully exercise their
states that sovereignty is in the hands of the people
sovereignty, because the electoral system was not
and is implemented according to the Constitution.
implemented openly. With an election system that
The emphasis on this basic idea is that the
gives the people the right to choose their leaders
people are the holder of the highest sovereignty.
and representatives, it will certainly improve the
Therefore, the government is organized from,
quality of democratic life in Indonesia4.
by, and for the people or known as the normative
democratic approach1. This statement is in line
with the opinion of Padmo Wahyono who states 2
C. Noviati, “Demokrasi dan Sistem Pemerintahan,”
that democratic government is government by Jurnal Konstitusi 10, no. 2 (2013): 333–354.
3
Syaifulloh, “Kesadaran Pluralisme Dalam Praktik
Demokrasi Pancasila,” Jurnal IDe (Inspirasi Demokrasi)
1
Oki Wahju Budijanto, “PEMENUHAN HAK POLITIK Vol. 08 (2019). Hal 8
WARGA NEGARA DALAM PROSES PEMILIHAN 4
Made Oka Cahyadi Wiguna, “Pentingnya Prinsip
KEPALA DAERAH LANGSUNG,” Jurnal Penelitian Kebijaksanaan Berdasarkan Pancasila Dalam
Hukum De Jure 16 (2016). Hal 294 Kehidupan Hukum Dan Demokrasi Indonesia,” Jurnal
The Relevance of The Application of The Presidential Threshold 267
Rizki Bagus Prasetio Febri Sianipar
 Commonly, in a country that adopts a Article 9 of Law of President and Vice President
democratic system, the implementation of general General Election.
elections is carried out to elect public officials Candidate Pairs shall be nominated by Political
in the legislative and executive fields, both at Parties or Coalition of Political Parties participating
the central and regional levels5. In Indonesia, in the general election who meet the requirements
since independence until now, general elections for obtaining seats of at least 20% (twenty percent)
have been held 12 times. However, the 2019 of the total seats in the House of Representatives
general elections were carried out with a different or obtaining 25% (twenty-five percent) of the
mechanism6 compared to previous general national valid votes in the general election for
elections such as in 1955, 1971, 1977, 1982, 1987, members of the House of Representatives, before
1992, 1997, 1999, 2004, 2009 and 20147. the implementation of the President and Vice
In the 2019 general elections, for the President General Election.
first time Indonesia adopted the simultaneous Article 12 of Law of President and Vice President
general election mechanism by electing General Election.
members of the House of Representatives, (1) Political Parties or Coalition of Political
Regional Representative Council, Regional Partiesmayannounce candidatesfor President
House of People’s Representative, as well as the and/or candidates for Vice President in the
President and Vice President at the same time. general election campaign for members of
The implementation of the simultaneous general the House of Representatives, the Regional
elections was motivated by the existence of a Representative Council, and the Regional
request for a judicial review of Law Number 42 House of People’s Representative.
Year 2008 concerning the Election of the President
and Vice President against the 1945 Constitution (2) Presidential candidates and/or vice-
of the Republic of Indonesia which was submitted presidential candidates announced by
by Effendi Gazali8 together with the Community Political Parties or Coalition of Political
Coalition to the Constitutional Court. Parties as referred to in paragraph (1) must
have obtained written approval from the
In the process of submitting the judicial candidate concerned.
review, there are several articles in Law Number
42 Year 2008 concerning the General Election of Article 14 Paragraph (2) of Law of President and
the President and Vice President which have been Vice President General Election.
reviewed for their constitutionality, such as: The registration period as referred to in Article 13
Article 3 Paragraph (5) of Law of President and is a maximum of 7 (seven) days as of the national
Vice President General Election. determination of the results of General Election
for members of the House of Representatives.
President and Vice President general elections
are held after the general elections for members Article 112 of Law of President and Vice President
of the House of Representatives, the Regional General Election.
Representative Council, and the Regional House Voting for the President and Vice President General
of People’s Representative. Election shall be held no later than 3 (three)
months after the announcement of the results of
the general elections for members of the House
Ilmiah Kebijakan Hukum Volume 15, no. 1 (2021). Hal of Representatives, the Regional Representative
730
Council, the Provincial Regional House of
5
Achhmad Edy Subiyanto, “Pemilihan Umum Serentak
Yang Berintegritas Sebagai Pembaruan Demokrasi People’s Representative, and the Regional House
Indonesia,” Jurnal Konstitusi 17 (2020). Hal 358 of People’s Representative
6
Pasal 347 ayat (1) Undang-Undang Nomor 7 Tahun In the application for a judicial review,
2017 tentang Pemilihan Umum
7
Ratnia Solihah, “Peluang Dan Tantangan Pemilu the petitioner emphasized the original intent
Serentak 2019 Dalam Perspektif Politik,” Jurnal Ilmiah of Article 22E of the 1945 Constitution of the
Ilmu Pemerintahan 3 (2018).Hal 78 Republic of Indonesia with the argument9 that
8
Rubian Ariviani et al., “Analisis Putusan Mahkamah
Konstitusi Nomor 14/Puu-Xi/2013 Berkaitan Dengan
Pemilihan Umum Serentak Di Indonesia,” Diponegoro 9
Poin 5 (lima) Fundamentum Petendi Permohonan
Law Review 5, no. 4 (2016). Hal 2 Pemohon dalam Putusan Mahkamah Konstitusi

268 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
the nonsimultaneous legislative and presidential candidates11.
general election mechanisms disturb the right The argument of the Constitutional Court
of citizens to vote efficiently and intelligently of not canceling the article that contains the
in terms of the use of time, energy and costs provision of presidential threshold is that the
for exercise their voting rights. In addition, the regulation regarding the presidential threshold
implementation of elections more than once is an open legal policy for the legislature. The
has had many detrimental consequences for the Constitutional Court left the provision regarding
constitutional rights of citizens. Especially in the presidential threshold to the legislature,
relation to the political participation of citizens. whether the presidential threshold can be applied
Furthermore, according to the petitioner, or not really depends on the political will of the
although basically in the implementation of legislature. Whereas the petitioner argued that
general elections, citizens still have various holding simultaneous general elections will avoid
reasons not to exercise their voting rights, with conflicts of interest in party votes in the presidential
general elections being held simultaneously, nomination. Such decisions of the Constitutional
each general election can get the highest voter Court are also contained in several decisions such
participation among the General Elections as the Constitutional Court Decision Number 51-
for the House of Representatives, Regional 52-59/PUU-VI/2008 and the Constitutional Court
Representative Council, and the Regional House Decision Number 53/PUU-XV/2017.
of People’s Representative, as well as President By holding legislative and presidential
and Vice President General Elections. general elections simultaneously, it should have
Therefore, on the application for a judicial implications for the elimination of the presidential
review, the Constitutional Court issued the threshold system. Considering that each political
Constitutional Court Decision Number 14/PUU- party will only know the number of votes it
IX/2013 with commands that granted part of the has when the general election is over, while the
application submitted, namely stating that Article presidential election is conducted simultaneously
3 Paragraph (5), Article 12 Paragraph (1) and with the legislative election. Thus, with such
Paragraph (2), Article 14 Paragraph (2), and Article a position, all political parties should be in the
112 of Law Number 42 Year 2008 concerning same position, namely the absence of position of
the General Election of the President and Vice majority or minority vote acquisition. The concept
President are contrary to the 1945 Constitution of of presidential threshold actually creates legal
the Republic of Indonesia and do not have binding uncertainty on the simultaneousness of the general
legal force, with consideration of the original election itself because it is no different from
intent of Article 22E Paragraph (2) of the 1945 general elections that are not held simultaneously.
Constitution of the Republic of Indonesia and the According to Benny K Harman, the
efficiency of general election administration10. presidential threshold will limit the emergence
Thus, general elections in Indonesia become of alternative figures in the contestation for the
necessary to be held simultaneously. election of President and Vice President12. The
However, apart from several parts of the Law of General Election should facilitate the
application submitted by the petitioner above, emergence of alternative candidates so that the
there was one article that was not decided by electoral competition can increase. This includes
the Constitutional Court, namely Article 9, increasing the participation and quality of the
which related to the presidential threshold. For Presidential and Vice-Presidential Candidates13.
Presidential and Vice-Presidential Candidates,
in terminology, the presidential threshold is 11
Abdurrohman, “Presidential Threshold Dalam
the minimum number of seats and votes that a Pemilu Di Indonesia , Perspektif Imam Al-Mawardy”
political party or coalition of political parties must (Universitas Islam Negeri Sunan Ampel, 2018). Hal 74
12
Abdul Ghoffar, “Problematika Presidential Threshold :
obtain in the legislative general election in order
Putusan Mahkamah Konstitusi Dan Pengalaman
to nominate presidential and vice-presidential Di Negara Lain Dispute on Presidential Threshold :
Decisions of the Constitutional Court and Other
Nomor14/PUU-XI/2013. Countries ’ Experiences,” Jurnal Konstitusi 15, no. 3
10
Pertimbangan hukum Hakim Mahkamah Konsitusi (2018): 480–501.
dalam Putusan MK Nomor 14/PUU-IX/2013 13
Gibran Maulana Ibrahim, “Tolak Presidential

The Relevance of The Application of The Presidential Threshold 269

Rizki Bagus Prasetio Febri Sianipar
 From the facts that the researchers has Presidential threshold. Both primary and
described above, the concept of the presidential secondary legal materials that had been obtained
threshold in simultaneous general elections is were then selected according to their validity and
an interesting thing to be discussed and studied then analyzed using qualitative analysis method
further. Therefore, the aim of this paper is to study that emphasize a more normative analysis with
how the relevance or relationship of the presidential deductive thinking method to answer the legal
threshold concept with the implementation of issue in this research.
simultaneous general elections in Indonesia is.
DISCUSSION AND ANALYSIS
RESEARCH METHOD
A. The Development of Simultaneous General
This research is a normative legal research Elections and Presidential Threshold in
with a conceptual approach and a statute approach. Indonesia
Basically, normative legal researches examine Usually in a presidential government system,
legal rules and legal principles14. Normative legislative and executive elections are carried out
researches attempt to find legal rules, legal through a general election mechanism. However,
principles, and legal doctrine that will be used to it is believed that the implementation of legislative
answer the legal issues faced15. The legal issue in and executive elections separately will not support
this paper is related to the context of the General a more effective and efficient implementation of
Election and the implementation of the Presidential democracy. This can be seen in terms of time, the
threshold. The data in this study is secondary amount of costs, and the personnel of the election
data. The data was obtained from a literature organizers if the elections are held at different
study consisting of primary legal materials and times. This was also stated by the Constitutional
secondary legal materials. Primary legal materials Court, that the implementation of executive
are none other than the main legal materials that elections after the legislative elections was not able
are authoritative in nature consisting of laws and to become a means of transforming social change
regulations16 governing the implementation of in the desired direction nor did it strengthen the
general elections in Indonesia which have been presidential system to be established based on the
in effect from time to time, such as Law Number 1945 Constitution of the Republic of Indonesia18. In
23 Year 2003 concerning the General Election of addition, in order to prevent a divided government,
the President and Vice President, Law Number which is commonly seen as the weakness of
42 Year 2008 concerning Presidential and Vice- the presidential system when the president and
Presidential Elections and Law Number 7 Year parliament are controlled by different political
2017 concerning General Elections. Meanwhile, forces, the presidential system combined with
secondary legal materials are legal materials that multi-parties with high political fragmentation and
support and strengthen primary legal materials, ideological polarization has the potential to cause
consisting of doctrines, scientific research results paralysis due to the executive-legislative deadlock
from experts and news which is of course relevant17 which has an impact on political instability19.
to the implementation of the Simultaneous General The existence of deficiencies or weaknesses of
Election and the implementation of the Indonesian separate election administration makes the need
for holding elections simultaneously.
Threshold, Demokrat: Membatasi Capres Alternatif,” The Constitutional Court Decision Number
last modified 2017, https://news.detik.com/ 14/PUU-XI/2013 is the first step towards a
berita/d-3567236/tolak-presidential-threshold- simultaneous election regime. Commonly, in a
demokrat-membatasi-capres-alternatif.
presidential government system there are two
14
Bagir Manan, “Penelitian Terapan Di Bidang Hukum”,
(Disampaikan Pada Lokakarya Peranan Naskah
Akademis Dalam Penyusunan Peraturan Perundang- 18
Sukimin Sukimin, “Pemilihan Presiden Dan Wakil
Undangan),” Badan Pembinaan Hukum Nasional, Residen Berdasarkan Undang-Undang Republik
Jakarta (1993). Indonesia Nomor 7 Tahun 2017 Tentang Pemilihan
15
Peter Mahmud Marzuki, Penelitian Hukum (Jakarya: Umum,” Jurnal Usm Law Review 3, no. 1 (2020). Hal 123
Kencana, 2010). Hal 35 19
Yuliyanto Yuliyanto, “Transformasi Model Pelaksanaan
16
Ibid. Pemilihan Kepala Daerah Serentak,” Jurnal Penelitian
17
Ibid. Hukum De Jure 17, no. 1 (2017): 57.

270 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
separate elections, namely the election to elect the candidates, the reductive impact of the plurality
executive and the election to elect the legislature. system on the legislative party system tends to
The difference in the timing of this election has fade23. In addition, simultaneous elections can be
implications for the distribution of power in used as an alternative for political and government
parliament and also affects the governability changes. It is said so because it can become an
(effectiveness) of the government because it effort to overcome various existing government
involves the working relationship between the problems, such as24: (i) becoming the basis for
two institutions20. This is in line with the coattail the realization of a strong and stable presidential
effect thesis based on Shugart’s thesis which was government system; (ii) facilitating the emergence
applied in Brazil, that after they synchronized the of a simplification of the party system, namely
implementation of the executive and legislative by providing incentives for political parties in
elections, it shows that this factor can overcome establishing a democratic and sustainable political
the problem of disharmony relations between the culture and institutionalization through alliances,
executive and legislature21. coalitions, associations and/or mergers; (iii)
Reflecting on the experience in Indonesia promoting the establishment of a more effective
so far, there are several strong reasons to say that parliament; (iv) creating a simpler electoral
simultaneous elections have a certain urgency22. system, short time and low cost in legislative
First, in terms of the required budget efficiency. and presidential elections; (v) creating space for
By holding elections at the same time, the budget voter participation in elections based on local
needed to hold elections can be saved. Second, in and national issues; (vi) in order to realize these
terms of the effectiveness of holding elections. By objectives, the presidential election system of
holding elections at the same time, of course, it is runoff with a reduced threshold (conditional
very effective both for the time of implementation majority) becomes the main choice. With the
and the energy needed to carry out the election. condition that the President and Vice President
Third, to reduce monetary political turmoil. By are elected in the first round, if they can get 45%
holding elections simultaneously, this will have of the votes with a 5% gap, or 40% of the votes
an impact on reducing or minimizing efforts to with a 10% gap from the second candidates who
implement monetary and political practices that are their rivals. In addition, the Simultaneous
are increasingly occurring in the implementation General Elections have an impact on countries
of elections. Holding elections at different times in the world, namely reducing the budget for
will not only bring huge costs to the country, election expenditures, consolidating national
but also increase political costs. Simultaneous identities, stabilizing the state and government,
elections certainly have an influence on the and minimizing constitutional disturbances in
executive electoral system and the arrangement public life25.
of this electoral system so that post-election it is Since the 2004 elections, the president and
able to establish a stable government system in vice president are directly elected by the people in
a multi-party presidential system and congruent one pair26. The rules for implementing the elections
relationship between the executive and the in that year were Law Number 23 Year 2003
legislature. Findings in various researches, concerning the General Election of the President
especially from the multi-party presidentialism and Vice President which also determined the
system in Latin America, show that the
combination of an electoral system with a plurality 23
Septi Nur Wijayanti dan Titin Purwaningsih, Laporan
formula with simultaneous legislative elections Akhir Tahun Pertama Penelitian Hibah Bersaing:
tends to help simplify the party system. But, it Desain Pemilihan Umum Nasional Serentak Dalam
Perspektif Hukum Dan Politik, 2015. Hal 51
depends on the number of presidential candidates 24
Ibid.
who compete. If there are many presidential 25
Bashir Ahmad Wagay, ““Simulatenous Elections and
India Democracy: A Hanging Fruit Requiring Safer
Hands to Pluck It”,” Scholarly Research Journal for
20
Noviati, “Demokrasi Dan Sistem Pemerintahan.” Interdisciplinary Studies 9, no. 44 (2018): 10162-10163.
21
Solihah, “Peluang Dan Tantangan Pemilu Serentak 26
Republik Indonesia, Undang-Undang Nomor 23 Tahun
2019 Dalam Perspektif Politik.”hal 82 2003 Tentang Pemilihan Umum Presiden Dan Wakil
22
Jantapar Sinamora, “Menyongsong Rezim Pemilu Presiden, 2003. Lihat Pasal 6A ayat (1) UUD 1945 jo
Serentak,” Jurnal RechtsVinding 3, no. 4 (2019): 1–18. Pasal 1 angka

The Relevance of The Application of The Presidential Threshold 271

Rizki Bagus Prasetio Febri Sianipar
 presidential threshold for the first time in terms of simultaneously at the same time28. In practice, the
the nomination of the President and Vice President design that is often used in concurrent elections
pair. is to combine executive and legislative elections.
Table 1. Presidential Threshold Since Direct Theimplementation of simultaneous elections
Election of President and Vice President in Indonesia was born as a result of judicial
Presidential Threshold review of several provisions in Law Number 42
Votes of the National Year 2008 against the 1945 Constitution of the
Year Legal Basis Description
House of Valid Republic of Indonesia. In the decision Number 14/
Representatives Votes PUU-XI/2013, the Constitutional Court stated that
2004 Law No. 23 15% 20% Election is the legislative elections and executive elections
Year 2003 on carried out in
the General two stages
shall be held simultaneously and will be valid
Election of for the 2019 elections and subsequent elections29.
the President The decision partially granted the judicial review
and Vice of Law Number 42 Year 2008, namely Article
President,
3 Paragraph (5), Article 12 Paragraph (1) and
Article 5
paragraph (2), Article 14 Paragraph (2), and Article 112.
(4) However, the Constitutional Court did not grant
2009 Law No. 42 20% 25% Election is the judicial review of Article 9.
Year 2008 carried out in
Table 2. Articles of Law Number 42 Year 2008
on General two stages
Election of on General Election of President and Vice
the President President Which Were Granted/Rejected
and Vice
President, Article Formulation of Norms Description
Article 9 20 Article 3 (5) President and Granted
2014 Law No. 42 20% 25% Election is paragraph Vice President
Year 2008 carried out in (5) general elections
on General two stages are held after the
Election of general elections
the President for members of
and Vice the House of
President, Representatives,
Article 9 20 the Regional
Representative
2019 Law No. 7 20% 25% Elections are
Council, and the
Year 2017 carried out
Regional House
on General simultaneously
of People’s
Election,
Representative
Article 222

As stated in the table above, after the issuance

of the Constitutional Court Decision Number
14/PUU-XI/2013, the concept of simultaneous
elections was born in Indonesia. Simultaneous
elections are also often referred to as concurrent
elections. Concurrent elections can be simply
defined as an electoral system that holds several
elections at the same time simultaneously27.
These types of elections include executive and 28
Apolonaris Gai and Frans Bapa Tokan, “Analisa
legislative elections at various levels known in Dampak Penyelenggaraan Pemilu Serentak Dalam
Meningkatkan Kualitas Demokrasi di Indonesia:
the country concerned, from the national, regional Studi Kasus Penyelenggraan Pemilu Di Kota Kupang-
to local elections. In other words, concurrent Provinsi Nusa Tenggara Timur Tahun 2019,” Warta
elections are held to elect democratic institutions Governare: Jurnal Ilmu Pemerintahan 1 (2020). Hal 112.
29
Lihat Putusan Mahkamah Konstitusi No. 14/PUU-
XI/2013 dalam perkara pengujian Undang-Undang No.
27
Eko Noer Kristiyanto, “Pelaksanaan Pemilihan Kepala 42 Tahun 2008 tentang Pemilihan Umum Presiden
Daerah Serentak Di Indonesia: Studi Di Batam,” Jurnal dan Wakil Presiden terhadap UUD Negara RI Tahun
Penelitian Hukum De Jure 17, no. 1 (2017). Hal. 50. 1945

272 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
Article 9 Candidate Pairs shall be Rejected Article 14 (2) The registration Granted
nominated by Political paragraph period as referred
Parties or Coalition (2) to in Article 13 is
of Political Parties a maximum of 7
participating in the (seven) days as
general election who of the national
meet the requirements determination
for obtaining seats of of the results of
at least 20% (twenty General Election
percent) of the total for members of
seats in the House of the House of
Representatives or Representatives.
obtaining 25% (twenty- Article 112 Voting for the President Granted
five percent) of the and Vice President
national valid General Election shall
votes in the general be held no later than
election for members 3 (three) months after
of the House of the announcement
Representatives, before of the results of the
the implementation general elections for
of the President and members of the House
Vice President General of Representatives,
Election the Regional
Article 12 (1) Political Parties Granted Representative Council,
or Coalition of the Provincial Regional
Political Parties House of People’s
may announce Representative, and the
candidates for City/District Regional
President and House of People’s
candidates for Representative.
Vice President
in the general In consideration of its decision, the
election campaign Constitutional Court stated that Article 9 is
for members of the threshold for vote acquisition for political
the House of
Representatives,
parties or coalition of political parties in the
the Regional form of concrete norms related to the open legal
Representative policy owned by the President and the House of
Council, and the Representatives as legislature. Then, this is based
Regional House on the provisions of Article 6A Paragraph (5) of
of People’s
Representative. the 1945 Constitution of the Republic of Indonesia
(2) Presidential
which states that the procedure for conducting the
candidates and/or election of President and Vice President is further
Vice-presidential regulated in law.
candidates
announced by
In the Decision of the Constitutional Court
Political Parties Number 14/PUU-XI/2013, regarding the issue
or Coalition of of the threshold for the nomination of president
Political Parties and vice president, in essence, the Constitutional
as referred to in Court is of the opinion as follows:
paragraph (1) must
have obtained a. The Constitutional Court considers that the
written approval threshold rule is very discriminatory and
from the candidate cripples the opportunity for political parties
concerned.
or coalitions to nominate candidates, so
that its implementation will cause injustice
and conflict with the constitution. Because,
to determine whether a political party or a
coalition of political parties can nominate, the

The Relevance of The Application of The Presidential Threshold 273

Rizki Bagus Prasetio Febri Sianipar
 public will first determine it in the upcoming situation is that all political parties have the same
legislative elections. opportunity to nominate Candidates for President
b. The Constitutional Court sees that threshold and Vice President31.
regulation in the law is an open legal policy There is an interesting statement from Jimly
for the legislature. Asshiddique32 that the presidential system has
c. Threshold rules prevent democratic, direct, long been embraced in the 1945 Constitution of
general, free, confidential, honest and fair the Republic of Indonesia. Initially, the drafters
elections. The Constitutional Court is of the of the Constitution envisioned the presidential
opinion that there is no logical correlation system as an ideal system. Until now the system
between the requirements of the support of is in effect. Presidential system with presidential
20% of the House of Representatives seats or threshold system indicators.
25% of the national valid votes that a Party Meanwhile, according to Refly Harun, the
must obtain to nominate a Candidate Pair of presidential threshold applied to strengthen the
President and Vice President. Instead, the presidential system also cannot be confirmed. If
party’s achievement of these conditions is the elected president comes from a small party, the
obtained through a democratic process that is cabinet formation must be carried out in a coalition.
handed over to the people. For example, the Partai Demokrat with a minority
The implementation of the threshold resulted vote in 2009 finally invited the Golkar party into
in the loss of opportunities and rights of citizens the cabinet even though in the presidential election
due to parties that did not meet the number of they had to compete33. Syamsuddin Harris also
candidates nominated. Therefore, in determining states that theoretically the basis of presidential
the threshold, one must pay attention to the legitimacy in a presidential system does not depend
principles of democracy that are not detrimental to on the political composition of the parliament
certain groups, especially minorities. The threshold elected in the legislative elections. The executive
for determining the president must take into and legislative institutions in a presidential system
account the social diversity reflected in political are two different institutions with different legal
aspirations30. Political participation of citizens foundations. Thus, the presidential system will
through political parties is the responsibility remain effective and strong in government, even
of every citizen’s human rights. Article 28E though simultaneous elections are held without
Paragraph (3) of the 1945 Constitution of the any presidential threshold requirements for
Republic of Indonesia stipulates that everyone has political parties nominating presidential and vice-
the right to freedom of association, assembly and presidential candidates34.
speech. For example, in the 2004 presidential
In fact,if the legislative and executive election, Soesilo Bambang Yudhoyono and Jusuf
elections are held simultaneously as implicitly Kalla were only supported by small parties such
contained in Article 22E Paragraph (2) in as the Partai Demokrat, the Partai Bulan Bintang,
conjunction with Article 6A Paragraph (2) of the and the PKPI. At the same time, the competitors
1945 Constitution of the Republic of Indonesia, were supported by big parties. However, the
the presidential threshold provision in Article 9 people chose the SBY-Kalla pair instead. Based on
of Law Number 42 Year 2008 loses its this experience, it appears that people choose the
relevance. The opinion of Yusril Ihza Mahendra president not because they support the party, but
further emphasizes this, that is the existence of because of the character or candidate nominated
simultaneous elections as in the Constitutional by the party. Therefore, increasing the number of
Court Decision Number 14/ PUU-XI/2013 candidates will increase the number of choices.
causes the threshold as in Article 9 of Law of The fewer candidates listed on the ballot, the more
Presidential Election not applicable. That way,
every political party participating in the 31
Lihat alasan Pemohon dalam Putusan Mahkamah
election can nominate president and vice Konstitusi No. 108/PUU-XI/2013
president. In this case, the positive aspect of this 32
Jimly Asshiddiqie, Hukum Tata Negara Dan Pilar-Pilar
Demokrasi (Jakarta: Sinar Grafika, 2011). Hlm 97
33
Ibid.
30
Lutfil Ansori, “Telaah Terhadap Presidential Threshold 34
Lutfil Ansori, Op.cit., hlm. 22-23.
Dalam Pemilu Serentak 2019” 4, no. 1 (2019): 15–27.

274 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
likely a good leader will be chosen. to this decision, there are other Constitutional
The opinion which says that presidential Court decisions that question the Presidential
threshold can strengthen the presidential system, threshold, including the Constitutional Court
simplify the party system and assist in selecting Decision Number 51-52-59/PUU-VI/2008. In this
the Presidential and Vice-Presidential Candidates decision, according to the Constitutional Court,
is not entirely correct. According to Syamsuddin the threshold setting contained in Article 9 of Law
Harris, theoretically the basis of a President’s Number 42/2008 is a concrete norm which is the
legitimacy in a presidential system scheme is elaboration of Article 6A Paragraph (2) of the
not determined by the political formation of the 1945 Constitution.
parliament as a result of the legislative elections. The policy on the requirement of 20%
The presidential and parliamentary institutions in (twenty percent) of the seats in the House of
a presidential system are two separate institutions Representatives or 25% (twenty-five percent)
that have different legitimacy bases35. According of the national valid votes in the Election of the
to Refly Harun, the application of presidential House of Representatives, as the opinion of the
threshold to strengthen the presidential system Court in previous decisions, is an open legal policy
also cannot be proven. If the elected President which is delegated by Article 6A Paragraph (5) of
comes from a small party, the cabinet formation the 1945 Constitution which stipulates that “The
will also be carried out with a coalition36. In procedure for conducting the election of President
addition, the opinion that says that the threshold and Vice President shall be further regulated in
simplifies party is also incorrect. The reason is law”, and Article 22E Paragraph (6) of the 1945
that the General Election Commission strictly Constitution which stipulates, “Further provisions
selects the political parties participating in the concerning general elections shall be regulated by
election, so that the political parties that have gone law”.
through strict verification are the political parties According to the Constitutional Court,
participating in the election, then they nominate regarding the absence of democratic, direct,
candidates for President and Vice President. The general, free, confidential, honest and fair
selection of political parties participating in the elections, there is no logical correlation between
general election conducted by the General Election the requirement of 20% (twenty percent) of the
Commission is a form of simplification of the House of Representatives seats or 25% (twenty-
party system37. Setting a threshold automatically five percent) of the national valid votes which must
reduces the meaning of elections as a fair and be obtained by a Party to nominate the Candidate
democratic political mechanism in determining Pairs for President and Vice President with the
the nation’s leaders, and it has implications for democratic, direct, general, free, confidential,
the quality of people’s political participation and honest and fair elections.
efforts to protect voters’ rights38.
Instead, the party’s achievement of these
As described above, the Constitutional Court conditions is obtained througha democratic process
Decision Number 14/PUU-XI/2013 not only gave that is handed over to the sovereign electorate. This
birth to simultaneous elections in Indonesia but is also to prove whether the party that nominates
also related to the threshold for vote acquisition the Presidential and Vice-Presidential Candidates
for political parties or coalitions of political parties has broad support from the electorate. Moreover,
which was declared by the Constitutional Court as the Constitutional Court is of the opinion that
a concrete norm with open legal policy. In addition regarding the requirement that a political party or
a coalition of political parties must obtain support
35
Syamsuddin Harris sebagaimana dikutip oleh Lutfil of 20% (twenty percent) of the seats in the House
Ansori, Ibid., hlm. 23. of Representatives or 25% (twenty-five percent)
36
Ibid. of the national valid votes before the presidential
37
Ibid.
general election, according to the Court, this
38
I Dewa Made and Putra Wijaya, “Mengukur Derajat
Demokrasi Undang-Undang Presiden Dan Wakil support is initial support. Meanwhile, the actual
Presiden Measuring the Democratization Degree support will be determined by the results of the
According To Law Number 42 of 2008 Concerning Presidential and Vice-Presidential Elections. The
General Election of the President and Vice President,” Presidential and Vice-Presidential Candidates who
no. 42 (2014): 556–571.

The Relevance of The Application of The Presidential Threshold 275

Rizki Bagus Prasetio Febri Sianipar
 will become the Government since the beginning Presidential Candidates. After all, how can a law
of their nomination have been supported by the that was born later be said to have expired due to
people through political parties that have obtained a situation or event that occurred earlier that was
certain support through elections. subject to a different law?
In addition to the Constitutional Court Furthermore, the presidential threshold
Decision Number 51-52-59/PUU-VI/2008 related provision in Article 222 of the Election Law
to the decision that questioned the Presidential contradicts the logic of the simultaneous election
threshold, there is also Constitutional Court of 2019, namely that the elections for members
Decision Number 53/PUU-XV/2017 which says of the House of Representatives, the Regional
that the presidential threshold provision in Article Representative Council, and the Regional House
222 of Law Number 7 Year 2017 concerning of People’s Representative are held simultaneously
General Elections is the manipulation and tug of with the Presidential and Vice-Presidential
war on the political interests of parties supporting Elections, as stated in the Constitutional Court
the government, opposition parties, and the Decision Number 14/PUU-XI/2013. The Court is
government, given the number of factions in the of the opinion that the Constitutional Court in its
House of Representatives who walked out when previous decision, namely the Constitutional Court
the decision-making regarding the Law of General Decision Number 51-52-59/PUU-VI/2008, dated
Election was passed. February 18, 2009, in the review of Law Number
The Constitutional Court is of the opinion 42 Year 2008 concerning General Elections (Law
that the making of a law is a political decision Number 42 Year 2008), has emphasized that
from a political process of state institutions which determining the minimum threshold of votes
are authorized by the Constitution to make laws, acquisition for political parties (or a coalition of
in this case the House of Representatives together political parties) to be able to nominate candidates
with the President. Therefore, the Constitutional for President and Vice President is the legal policy
Court is not authorized to assess the political of the legislature.
practices and political dynamics that occur The affirmation of the opinion of the
during the process of making a law as long as Constitutional Court was then again based on
the procedure for making the said law does not the Constitutional Court Decision Number 51-
conflict with the procedures specified in the 1945 52-59/PUU-VI/2008, that the legal consideration
Constitution. regarding the minimum threshold of votes
In particular, as regulated in Article 20 acquisition for political parties (or coalitions
Paragraph (2), Paragraph (3), Paragraph (4) of political parties) in order to nominate the
and Paragraph (5) of the 1945 Constitution, the Presidential and Vice-Presidential Candidates
existence of a number of factions who walked out (which at that time was regulated in Article 9
does not cause the substance or content material of Law Number 42 Year 2008) is a law-making
of a Law to be unconstitutional, but only shows policy (legal policy).
the level of acceptance of the content material of It is in no way associated with the existence of
the law in question. In the sense that approval of a norm of Law that regulates the separation of the
the content material of the Law is not obtained by holding of the Election to elect the President and
acclamation. Vice President from the Election to elect members
The presidential threshold provision in of the House of Representatives, the Regional
Article 222 of the Election Law which has been Representative Council, and the Regional House
used in the 2014 Election is irrelevant and out of People’s Representative (as regulated in Article
of date when applied in the 2019 simultaneous 3 paragraph (5) of Law Number 42 Year 2008),
elections. the Constitutional Court is of the which was also requested for a constitutional
opinion that the Law governing the 2014 Election review at that time. The theoretical argument for
is not Law Number 7 Year 2017 concerning the constitutionality of requirements regarding
General Elections, but Law Number 8 Year 2012 the minimum threshold of votes acquisition for
which does not or has not enforced the provisions political parties (or coalitions of political parties)
regarding the presidential threshold, in the process to be able to nominate candidates for President
of nominating the pairs of Presidential and Vice- and Vice President is not derived from the logic

276 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
of unifying or separating the Election to elect the nominate candidates for President and Vice
President/Vice President with/from the Election to President as a law-making policy (legal policy).
elect members of the House of Representatives, Then, this matter is in no way associated to the
the Regional Representative Council, and the existence of a norm of Law that regulates the
Regional House of People’s Representative. separation of the implementation of the General
Rather, it is from a theoretical argument to Election to elect the President and Vice President
strengthen the Presidential system in the sense of from the Election to elect members of the House
realizing a system and practice of government that of Representatives, the Regional Representative
is closer to the ideal characteristics/requirements Council, and the Regional House of People’s
of a Presidential system of government so that Representative.
it prevents the practices that actually show the B. The Paradigm of Incompatibility between
characteristics of a Parliamentary system. the Conception of Simultaneous General
The presidential threshold provision in Election and Presidential Threshold
Article 222 of the Election Law undermines the Before further discussing the issue of
Presidential system and eliminates the function incompatibility between the conception of
of evaluating the implementation of the Election. simultaneous general election and presidential
The Court’s considerations as described in number threshold, it is better to describe the purpose of each
1 to 5 above have confirmed that the provisions of these conceptions first. Thus, the explanation
contained in Article 222 of the Election Law are in that will be carried out on the compatibility
fact in accordance with the idea of strengthening between the two concepts will be easier to show.
the Presidential system which is the constitutional
design of the 1945 Constitution. Meanwhile, if Referring to Sodikin’s opinion, the
what is meant by “eliminating the evaluation of presidential threshold is setting the threshold level
the implementation of elections”. The Petitioner of support from the House of Representatives.
assumed there was people’s dissatisfaction with Both in terms of the number of votes (ballot)
the performance of the House of Representatives or the number of seats that must be obtained in
and the President and Vice President who were order to nominate the President and/or Vice
elected in the 2014 Election, with the assumption President39. Based on this definition, it can be seen
that the people would be faced with the same pair that the presidential threshold aims to determine a
of Presidential and Vice-Presidential Candidates number of parties that can nominate candidates for
who would compete in the 2019 Election as President and/or Vice President.
affirmed by the Petitioner in his Petition. This Thus, it will be coherent with another logical
assumption was too premature because it was consequence, namely the need for coalition with
not certain that the pairs of Presidential and Vice- other parties. Therefore, if the parties that win
Presidential Candidates who would compete in the the minority votes cannot get a coalition, then
2019 Election are the same pairs of Presidential these parties will automatically move away from
and Vice-Presidential Candidates who were the existing political contestation and die by
contesting in the 2014 Election. This assumption themselves.
would only be proven post factum. Moreover, even Therefore, the existence of the conception
if this assumption is true, quod non, it does not of presidential threshold is very obvious in the
necessarily make the norms contained in Article spirit of simplifying the number of parties in the
222 of the Election Law unconstitutional. presidential system. Although, the existence of
Regarding the issue of the presidential these supporting political parties does not have
threshold, there is similarity in the legal direct ties, for example in the form of the ability/
considerations of judges of the Constitutional authority to overthrow the current President and/
Court in the Decision of the Constitutional Court or Vice President.
Number 51-52-59/PUU-VI/2008, and Decision Such thing can only happen in countries that
of the Constitutional Court Number 53/PUU- adhere to a parliamentary system. Such a thing can
XV/2017 that the determination of the minimum happen because conceptually in the government
threshold of votes acquisition for political parties
(or coalitions of political parties) to be able to
39
Ibid.

The Relevance of The Application of The Presidential Threshold 277

Rizki Bagus Prasetio Febri Sianipar
 system there is no fixed term of office. In addition, impact from the implementation of the concept of
the government is also a member of parliament. So simultaneous general elections in countries with
that the parliament can have control which in this presidential systems.
case is up to the limit of being able to overthrow It is hoped that through the simultaneous
the ruling government. general election, the voters will vote the President
Meanwhile, in a presidential government and/or Vice President who has the best track
system there is no relationship between the record and popularity and then vote the supporting
parliament/legislature and the government/ political parties as well42. This is what is known as
executive, as described in the description in the coattail effect.
the previous paragraph on the parliamentary Furthermore, based on the characteristics of
government system. It further emphasizes that the objective of the conception of the simultaneous
the existence of the conception of presidential general election, it can be seen that it is also aimed
threshold is solely for the purpose of simplifying at establishing a stable relationship between the
the number of parties. government and parliament, where the coattail
Table 3. The Comparison of Simultaneous effect as described previously will lead to a
General Elections parliamentary condition that contains the majority
Country
Simultaneous General Elections of members of political parties supporting the
National Implication elected President and/or Vice President.
Indonesia Election of The implication for the
the President, Coattail Effect is that Referring to the opinion of Didik Supriyanto,
the House of the parties elected in the by reflecting his opinion on the experience in
Representatives Presidential Election Brazil which has shown the success of the coattail
and the Regional tend to be elected in the effect as referred to in the simultaneous general
Representative Legislative Election.
Council There is a possibility
election. When the voters in Brazil were presented
that the winner of the with presidential election ballots and party
Legislative Election is the election ballots, the voters tended to vote the party
political party that wins the that supported the President they voted43.
Presidential Election.
Brazil Election of the The implication for the
Such condition indicates that the conception
President and Coattail Effect is that of a simultaneous general election system aims
the National the victory of the elected to streamline election time. Then, apart from
Congress of President is followed by that, it aims to encourage the establishment of
Brazil. the victory of the coalition
good executive/state government performance
of political parties that
nominate him/her in the through a stable relationship with the parliament.
competition for seats in The stability is obtained through efforts to fill the
the legislative elections. parliament which leads to the occupation of the
The government will majority by the parties that support the elected
work effectively because
the President has the
government.
full support from the Efforts to encourage the filling of parliament
Parliament. with the majority of members of the political
parties supporting the President are achieved
This is in contrast to the conception of a by fair efforts through the framework of the
simultaneous general election as initiated by Brazil coattail effect resulted from the mechanization of
in 199440, where the application of the conception simultaneous general elections. Because, it should
of a simultaneous general election is an effort to be emphasized that in a presidential system the
stimulate an impact known as the coattail effect41. position of the government/executive is very
The coattail effect, or what in Bahasa Indonesia significant in running the wheels of government.
is called as efek menarik kerah, is an expected The condition of the occupation of the
President based on the concept of fixed terms
of office makes it difficult for the President to
40
Kementerian Dalam Negeri, Naskah Akademik
Rancangan Undang-Undang Tentang Penyelenggaraan
Pemilihan Umum, September 2016, hal. 42. 42
Ibid.
41
Ibid. 43
Ibid.

278 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
be overthrown by the parliament/legislature of The implementation of a candidate-list/
a country. Although current developments have open-list proportional representation general
resulted in a concept known as impeachment/ election system. This open-list proportional
declaration of incapacity, in order to overthrow system is not effective in optimizing the
incompetent government/executives or the coattail effect of simultaneous general
government/executives who are no longer elections. If the voters are offered the choice of
qualified. the President and the party’s choice includes
The steps that need to be taken in achieving a list of legislative candidates, then there is a
the goal of overthrowing the government/ tendency that the presidential choice is not in
executives through impeachment/declaration accordance with the choice of the party that
of incapacity are not an easy path. Therefore, in nominates the President because the voters
the end, the conception of fixed terms of office choose legislative candidates based on the
remains consequently attached to the presidential quality of the legislative candidates, not the
system of government. quality of the party/president. This tendency
persists even though the general election is
However, even though Brazil in the early
simultaneous.
days of implementing the concept of simultaneous
general elections showed success, referring to its c. Two-round Presidential election.
development today, especially the period of Dilma Brazil implemented a presidential election
Roessef’s administration, Brazil has brought about system based on a majority run off. The two-
a new paradox in the application of the concept of round presidential election, in simultaneous
simultaneous general elections44. general elections, tends to reduce the
The paradox arose through the factual possibility of the emergence of a majority
conditions of instability of the Brazilian party in parliament. The hopes of the coalition
government during the leadership of Dilma of parties to occur early and permanently
Roessef itself. Where, Dilma Roessef, who is were also delayed because the parties and
also the first female President in Brazil, actually presidential candidates were more focused
stepped down from her office, even though it on how to advance to the second round.
resulted from the simultaneous general election in Although the implementation of the
201445. simultaneous general election encountered such
The paradox of the failure of the simultaneous an anticlimax, the obstacles to achieving the
general election that occurred during the leadership goals of simultaneous general elections are not
of Dilma Roessef can be elaborated into several insurmountable. The solution that can be taken is
variables/causing factors as described by Usep simple; taking steps that are the opposite of the
Hasan Sadikin which include46: policy taken by Brazil.
a. There are too many seats in each constituency. In addition, of course, other steps can still be
taken to produce an alternative solution in order
Each constituency in Brazil has 8-70 seats.
to avoid the anticlimax in implementation of the
Too many seats in one constituency will result
simultaneous general election as happened in
in many parties in parliament. According
Brazil in the Dilma Roessef era.
to the results of the 2014 Brazilian general
election, the parties supporting Dilma only The comparison of the objectives between
won 70/513 (13%) seats. The other 87% of the conception of presidential threshold and
seats must be shared with the 27 parties in simultaneous general elections, as described in
parliament. the previous paragraphs, increasingly shows that
the two concepts are different things. Even if the
b. Legislative elections are conducted for
presidential threshold is to be implemented, then
legislative candidates and not parties.
the legislative general election must be carried out
before the executive general election is held.
44
Usep Hasan Sadikin, “Paradoks Pemilu Serentak
Of course, this is done in order to determine
Brasil,” last modified 2016, https://rumahpemilu.org/
paradoks-pemilu-serentak-brasil/. the initial support of political parties that are
45
Ibid. entitled to nominate pairs of candidates for
46
Ibid.

The Relevance of The Application of The Presidential Threshold 279

Rizki Bagus Prasetio Febri Sianipar
 President and/or Vice President. This is important, Country Presidential Nomination Provisions
referring to the opinion of Asep Wijaya et.al Mexico Article 82 Chapter III of the 2015
where he states that the presidential threshold then Mexican Constitution on Federal
becomes a complicated thing because politics is a Executive Powers does not mention nor
dynamic thing47. This dynamic occurs because a regulate the threshold for presidential
party’s vote acquisition in a general election will nomination.
Kyrgyzstan Article 62 paragraph (2) of the 2010
not necessarily be the same in another general Kyrgyzstan Constitution states that there
election in the coming years48. Therefore, it is is no limit to the number of presidential
very unreasonable to apply the conception of candidates. A candidate who has collected
presidential threshold in the same frame as the more than 30,000 vote signatures can
implementation of simultaneous general elections. register as a presidential candidate.

In addition, the experience of countries with The application of the conception of

presidential systems that also apply the concept of presidential threshold can also encourage
simultaneous general elections such as America, the movement of the level of democracy as
Brazil, Peru, Mexico, Colombia, and Kyrgyzstan, stated by Dahl. In his opinion, Dahl argues that
which in the simultaneous general elections do not democratization is shaped by two dimensions,
recognize the presidential threshold49, shows that namely public contestation and the right to
the incompatibility of the unification of the concept participate50. The combination of these two
of presidential threshold and the simultaneous dimensions will produce at least 4 (four) variants
general election is getting stronger. of democracy which can be illustrated as follows51:
Table 4. The Provisions of Presidential
Threshold in Countries with Presidential
System
Country Presidential Nomination Provisions
United States As a country with the most established
of America Presidential Threshold system, there
is no threshold provision in the 1992
Constitution of the United States
Brazil Chapter V of the 2017 Brazilian
Constitution on Political Parties does not
regulate nor mention at all the threshold
for nominating presidential candidates.
Each party has the freedom to nominate a
presidential candidate.
Peru Chapter IV of the 2021 Peruvian
Constitution on the Branches of Executive
Power does not regulate the threshold for
presidential nomination.

Figure 1. Dahl Democratic Axis

Dahl uses the axis of analysis which then
leads to 4 (four) forms of political systems as
follows:52
47
Asep Wijaya, dkk, “Problematika Hukum Penerapan a. [C] Competitive Oligarchy
Presidential Threshold Dalam Pemilihan Umum Di High political contestation, the right to vote
Indonesia.”, Risalah Hukum, Vol. 16, No. 1, Juni 2020,
hlm. 46.
is limited to certain classes.
48
Wijaya and Erwinta, “Problematika Hukum Penerapan b. [A] Closed Hegemony
Presidential Threshold Dalam Pemilihan Umum Di
Indonesia.”
Low political contestation, the right to vote is
49
Abdul Ghoffar, “Problematika Presidential Threshold : limited to a certain number of classes.
Putusan Mahkamah Konstitusi Dan Pengalaman
Di Negara Lain Dispute on Presidential Threshold: 50
Albert H.Y. Chen, “The Law and Politics of the Struggle
Decisions of the Constitutional Court and Other
for Universal Suffrage in Hong Kong, 2013-15,” Asian
Countries ’ Experiences.”, Jurnal Konstitusi, Vol. 15, No.
Journal of Law and Society 3, No. 1 (2016): 189–207.
3, September 2018, hlm. 498. 51
Ibid.
52
Ibid.
280 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
c. [D]Polyarchy by Asep Wijaya with the complete information as
High political contestation, the right to vote follows:
applies to people in general. “Based on the 1945 Constitution, there are
d. [B] Inclusive Hegemony provisions regarding the rights of citizens which
can be seen in Article 27 Paragraph (1) which
Low political contestation, the right to vote is
explains the rights of citizens to vote which is
extended/applies to people in general.
contained in the rights of citizens guaranteed by
Referring to Dahl’s opinion, the coherence the constitution in the form of equality in law and
between the presidential threshold and the political government. In addition, Article 28D Paragraph
system will facilitate a country’s political system (1) explains the right to obtain fair recognition,
to move towards the closed hegemony form or guarantee, protection, and legal certainty as well
only inclusive hegemony. Of course, this is not as equal treatment before the law. Article 28 D
expected to happen in Indonesia. Paragraph (3) also explains the right to obtain
C. The Possibility of Violation of the equal opportunities in government. The rules
Constitutional Rights of Citizens in regarding human rights are a form of embodiment
relation to the Implementation of the of people’s sovereignty as regulated in Article 1
Conception of Presidential Threshold Paragraph (2) and Article 6A Paragraph (1).56”
Apart from the incompatibility between Every citizen has the right to be actively
the application of the conception of presidential involved in political life. If we refer to the various
threshold and the application of the conception of laws and regulations governing political rights,
simultaneous general election, apparently, there there is not a single rule that is discriminatory57.
is also a number of views on the possibility of The researchers has the same opinion on the alleged
violation of constitutional rights of citizens on the constitutional disadvantage of equal opportunity
implementation of the conception of presidential in government. The existence of the conception of
threshold. presidential threshold, of course, will encourage
The State of Indonesia recognizes and public’s low political contestation. In fact, in the
protects the right of every citizen to take part in extreme illustration as described by Dahl, it can
the implementation of public affairs, the right to take the form of Inclusive Hegemony58.
vote and the right to be elected as stated in Article In addition, it is irrelevant if the determination
25 of Law Number 12 Year 2005 concerning of political parties which can nominate candidates
Ratification of the International Covenant on for President and/or Vice President during the
Civil and Political Rights. This covenant affirms election period is based on the votes acquisition
the principles of human rights in the civil and of the political party concerned in the result of
political fields contained in the Declaration of election of the previous period. In fact, when
Human Rights (Universal Declaration of Human referring to the opinion of Asep Wijaya, politics is
Rights)53. a dynamic thing.
It is known that election activities are a Regarding the limitation of the constitutional
means for citizens to exercise their human rights rights of citizens to have equal opportunities
in principle54. The fulfillment of citizens’ rights in government, of course, it will lead to the
to actively participate in the implementation of concretization of one’s political rights to be
elections is one of the benchmarks for election elected in public political contestations, where
success55. In addition, this view was also conveyed the political rights are also part of human rights.

Berdasarkan Pancasila Dalam Kehidupan Hukum Dan

53
Hilmi Ardani Nasution and Marwandianto, “Memilih Demokrasi Indonesia.” Hal 736
Dan Dipilih, Hak Politik Penyandang Disabilitas 56
Wijaya and Erwinta, “Problematika Hukum Penerapan
Dalam Kontestasi Pemilihan Umum: Studi Daerah Presidential Threshold Dalam Pemilihan Umum Di
Istimewa Yogyakarta,” Jurnal HAM 10, no. 2 (2019). Hal Indonesia.”
186 57
Nasution and Marwandianto, “Memilih dan Dipilih,
54
Bawamenewi, “Implementasi Hak Politik Warga Hak Politik Penyandang Disabilitas Dalam Kontestasi
Negara,” Journal of Chemical Information and Modeling Pemilihan Umum: Studi Daerah Istimewa Yogyakarta.”
53, no. 9 (2013). Hal 38 58
Chen, “The Law and Politics of the Struggle for
55
Wiguna, “Pentingnya Prinsip Kebijaksanaan Universal Suffrage in Hong Kong, 2013-15.”hal 201

The Relevance of The Application of The Presidential Threshold 281

Rizki Bagus Prasetio Febri Sianipar
 Therefore, the limitation of these rights should be reputation of others, or public health and morals,
based on universally recognized principles. and are required by democratic societies to protect
Referring to the general acknowledgment of those interests61.
the limitation/negation of human rights, there are It seems that the application of the presidential
at least two principles used in doing such matter. threshold principle can be seen as something that
Namely, the Siracusa and Camden Principles. is still in line with the principles of a democratic
Referring to the opinion of the United Nations, it society. However, referring to the fact that the
is concluded that the application of the Siracusa concept of presidential threshold is not compatible
Principles must be in the following corridors59: with the conception of simultaneous general
a. Established by law; election, the implementation of the presidential
threshold should be seen as irrelevant to the needs
b. In a democratic society;
of a democratic society and considered as a form
c. Public order; of violation of constitutional rights which are also
d. Public health; human rights.
e. Public morals;
CONCLUSION
f. National security;
g. Public safety; In the implementation of general elections in
Indonesia, especially since 2019, the adoption of
h. The rights and freedom of others or the rights the concept of simultaneous general election on the
and reputation of others; and one hand and the provision of presidential threshold
i. Restrictions on general courts. which still applies on the other hand, have shown
Furthermore, Halili states that the existence of the incompatibility between one another. The
the Siracusa Principle will provide an operational existence of the provision of presidential threshold
interpretation of the limitation of human rights60. is basically expected to simplify the number of
This means that the implementation of human parties. However, in reality, the implementation
rights can be limited as long as it can be accounted of simultaneous general elections caused a
for fulfilling the indicators of the Siracusa coattail effect, where when voting a presidential
Principle. candidate, voters tend to vote the political party
In addition, Wiratraman provides a definition that nominates the president they vote. In addition,
of the Siracusa Principle as an explanation that the presidential threshold which still applies can
restrictions must be formulated strictly for the also push the Indonesian political system into a
interest of the protected rights and consistent purely inclusive hegemony, where the granting of
with the objectives of the ICCPR provisions, the right to vote is carried out widely, but political
so that these restrictions should not be carried involvement or contestation is limited in such a
out arbitrarily and without valid reasons. These way so that it has low value.
restrictions must be clearly formulated and
SUGGESTION
accessible to everyone and provide safeguards
and redress against the impact and application of Should Indonesia still choose to hold
restrictions that are illegal and prone to be abused. simultaneous elections, it would be better for the
Then, Wiratraman also explains the Camden legislature to exclude the provision of presidential
Principle and says that the state should not impose threshold in making the rules of the implementation
restrictions on freedom of expression that are not of simultaneous election. This is because the two
in line with the standards set out in Principle 3.2. concepts are incompatible and contradictory. In
and, the applicable restrictions should be regulated addition, the abolition of the presidential threshold
by law, are intended to protect the rights or will certainly provide an opportunity for every
citizen, especially those who do have the capacity
and capability to participate directly in general
59
Pasal 22 ayat (2) Kovenan Internasional tentang Hak-
elections.
Hak Sipil dan Politik
60
Halili, “UU No. 1/PNPS/1965 Dan Tafsir Pembatasan
Kebebasan Beragama/Berkeyakinan Di Indonesia,” 61
Paulus Suryanta Ginting, Issay Wenda, and Ambrosius
Jurnal HAM XI, No. Kebebasan Beragama dan Mulait, “Kebebasan Ekspresi dan Makar Dalam Sistem
Berkeyakinan (2014): 93–112. Hukum Ham,” no. 1304 (2020): 1–22.

282 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289
ACKNOWLEDGEMENT ’ Experiences.” Jurnal Konstitusi 15, no. 3
(2018).
The researchers would like to convey praise
and gratitude to God Almighty. Because of His Ginting, Paulus Suryanta, Issay Wenda, and
abundance of power, the researchers can complete Ambrosius Mulait. “Kebebasan Ekspresi
this paper. The researchers would like to thank the Dan Makar Dalam Sistem Hukum Ham,” no.
Research and Development Board for Law and 1304 (2020).
Human Rights and the parties who have provided Halili. “UU No. 1/PNPS/1965 Dan Tafsir
support in the writing of this paper. Pembatasan Kebebasan Beragama/
Berkeyakinan Di Indonesia.” Jurnal HAM XI,
BIBLIOGRAPHY no. Kebebasan Beragama dan Berkeyakinan
Abdurrohman. “Presidential Threshold Dalam (2014).
Pemilu Di Indonesia , Perspektif Imam Al- Ibrahim, Gibran Maulana. “Tolak Presidential
Mawardy.” Universitas Islam Negeri Sunan Threshold, Demokrat: Membatasi Capres
Ampel, 2018. Alternatif.” Last modified 2017. https://
Ansori, Lutfil. “Telaah Terhadap Presidential news.detik.com/berita/d-3567236/tolak-
Threshold Dalam Pemilu Serentak 2019” 4, presidential-threshold-demokrat-membatasi-
no. 1 (2019). capres-alternatif.
Ariviani, Rubian, Hasyim Asy, Untung Sri Indonesia, Republik. Undang-Undang Nomor
Hardjanto, Program Studi, S Ilmu, Fakultas 23 Tahun 2003 Tentang Pemilihan Umum
Hukum, and Universitas Diponegoro. Presiden Dan Wakil Presiden, 2003.
“Analisis Putusan Mahkamah Konstitusi Kristiyanto, Eko Noer. “Pelaksanaan Pemilihan
Nomor 14/Puu-Xi/2013 Berkaitan Dengan Kepala Daerah Serentak Di Indonesia: Studi
Pemilihan Umum Serentak Di Indonesia.” Di Batam.” Jurnal Penelitian Hukum De
Diponegoro Law Review 5, no. 4 (2016). Jure 17, no. 1 (2017).
Asshiddiqie, Jimly. Hukum Tata Negara Dan Made, I Dewa, and Putra Wijaya. “Mengukur
Pilar-Pilar Demokrasi. Jakarta: Sinar Derajat Demokrasi Undang-Undang
Grafika, 2011. Presiden Dan Wakil Presiden Measuring the
Bawamenewi. “Implementasi Hak Politik Warga Democratization Degree According To Law
Negara.” Journal of Chemical Information Number 42 of 2008 Concerning General
and Modeling 53, no. 9 (2013). Election of the President and Vice President,”
Chen, Albert H.Y. “The Law and Politics of the no. 42 (2014).
Struggle for Universal Suffrage in Hong Manan, Bagir. “Penelitian Terapan Di Bidang
Kong, 2013-15.” Asian Journal of Law and Hukum”, (Disampaikan Pada Lokakarya
Society 3, no. 1 (2016). Peranan Naskah Akademis Dalam
Gai, Apolonaris, and Frans Bapa Tokan. “Analisa Penyusunan Peraturan Perundang-
Dampak Penyelenggaraan Pemilu Serentak Undangan).” Badan Pembinaan Hukum
Dalam Meningkatkan Kualitas Demokrasi Nasional, Jakarta (1993).
Di Indonesia: Studi Kasus Penyelenggraan Nasution, Hilmi Ardani, and Marwandianto.
Pemilu Di Kota Kupang-Provinsi Nusa “Memilih Dan Dipilih, Hak Politik
Tenggara Timur Tahun 2019.” Warta Penyandang Disabilitas Dalam Kontestasi
Governare: Jurnal Ilmu Pemerintahan 1 Pemilihan Umum: Studi Daerah Istimewa
(2020). Yogyakarta.” Jurnal HAM 10, no. 2 (2019).
Ghoffar, Abdul. “Problematika Presidential Noviati, C. “Demokrasi dan Sistem Pemerintahan.”
Threshold: Putusan Mahkamah Konstitusi Jurnal Konstitusi 10, no. 2 (2013).
Dan Pengalaman Di Negara Lain Dispute Oki Wahju Budijanto. “Pemenuhan Hak Politik
on Presidential Threshold : Decisions of the Warga Negara Dalam Proses Pemilihan
Constitutional Court and Other Countries

The Relevance of The Application of The Presidential Threshold 283

Rizki Bagus Prasetio Febri Sianipar
 Kepala Daerah Langsung.” Jurnal Penelitian Wijaya,Asep, and Poppilea Erwinta.“Problematika
Hukum De Jure 16 (2016). Hukum Penerapan Presidential Threshold
Peter Mahmud Marzuki. Penelitian Hukum. Dalam Pemilihan Umum Di Indonesia” 16,
Jakarya: Kencana, 2010. no. 2 (2020).
Purwaningsih, Septi Nur Wijayanti dan Titin. Yuliyanto, Yuliyanto. “Transformasi Model
Laporan Akhir Tahun Pertama Penelitian Pelaksanaan Pemilihan Kepala Daerah
Hibah Bersaing: Desain Pemilihan Umum Serentak.” Jurnal Penelitian Hukum De Jure
Nasional Serentak Dalam Perspektif Hukum 17, no. 1 (2017)
Dan Politik, 2015.
Sadikin, Usep Hasan. “Paradoks Pemilu Serentak
Brasil.” Last modified 2016. https://
rumahpemilu.org/paradoks-pemilu-serentak-
brasil/.
Sinamora, Jantapar. “Menyongsong Rezim Pemilu
Serentak.” Jurnal RechtsVinding 3, no. 4
(2019).
Solihah, Ratnia. “Peluang Dan Tantangan Pemilu
Serentak 2019 Dalam Perspektif Politik.”
Jurnal Ilmiah Ilmu Pemerintahan 3 (2018).
Subiyanto, Achhmad Edy. “Pemilihan Umum
Serentak Yang Berintegritas Sebagai
Pembaruan Demokrasi Indonesia.” Jurnal
Konstitusi 17 (2020).
Sukimin, Sukimin. “Pemilihan Presiden Dan
Wakil Residen Berdasarkan Undang-Undang
Republik Indonesia Nomor 7 Tahun 2017
Tentang Pemilihan Umum.” Jurnal Usm Law
Review 3, no. 1 (2020).
Syaifulloh. “Kesadaran Pluralisme Dalam Praktik
Demokrasi Pancasila.” Jurnal IDe (Inspirasi
Demokrasi) Vol. 08 (2019).
Toriana, Lia. “Pemilu Serentak Dan Politik Massa:
Belajar Dari Brasil.” Last modified 2014.
https://rumahpemilu.org/pemilu-serentak-
dan-politik-massa-belajar-dari-brasil/.
Wagay, Bashir Ahmad. “Simulatenous Elections
and India Democracy: A Hanging Fruit
Requiring Safer Handsto Pluck It”.” Scholarly
Research Journal for Interdisciplinary
Studies 9, no. 44 (2018): 10162-10163.
Wiguna, Made Oka Cahyadi. “Pentingnya Prinsip
Kebijaksanaan Berdasarkan Pancasila
Dalam Kehidupan Hukum Dan Demokrasi
Indonesia.” Jurnal Ilmiah Kebijakan Hukum
Volume 15, no. 1 (2021).

284 Jurnal Penelitian Hukum De Jure Vol. 21 No. 2, Juni 2021: 267-289