Public Dialogue Report “Indonesian Female Representation after the Judicial Review of General Election Law No. 10/2008”, January 21, 2008
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Current Project / Parliament Representation / Women & Politics
Year Commencing Notes of Women Research Institute Jakarta, January 21, 2008
Edriana Noerdin as research director of Women Research Institute (WRI) gave a preliminary speech to mark the event of public dialogue. In her speech, Edriana described shortly the background and importance of public dialogue. From this event it is expected that the participants may find methods and loopholes to prop up support for female candidates for the parliament after the judicial review was issued.
This public dialogue was directed by Sita Aripurnami (executive director of WRI) as the moderator, where five speakers were present. The five speakers were Aisah Putri Budiatri (WRI researcher), Ani Soetjipto (academician from Indonesia University), Mohammad Fajrul Falakh (Legal Observer from Gadjah Mada University), Nursyahbani Katjasungkana (member of House of Representatives, 2004-2009 and PKB’s candidate for 2009 general election) and Lena Maryana Mukti (member of House of Representatives, 2004-2009 and PPP’s candidate for 2009 general election).
The moderator said that as the first speaker, Aisah Putri Budiatri representing the WRI would describe the efforts that could be made to push female representation in the parliament after a judicial review was issued by the Constitution Court, considering that the general election was to take place within just two months.
In the meantime Ani Soetjipto would describe the impact of the application of vote majority regulation on female representation. The third speaker, Mohammad Fajrul Falakh would explain his views on the result of judicial review of Law No.10/2008 on general election, article 214, from legal perspective.
In addition to that, Nursyahbani Katjasungkana and Lena Maryana Mukti set forth their views on the cancellation of number order regulation to be replaced by vote majority in 2009 general election and the strategy to win female candidates in facing the vote majority regulation.
Aisah Putri Budiatri
As the first speaker Aisah Putri Budiatri gave an explanation on the background of this public dialogue. WRI saw that many people had not realized that the Constitution Court’s judicial review might weaken female representation in the parliament.
Putri argued why an affirmative action is important. 1) The general election system that applies vote majority regulation is not appropriate to strengthen female representation. 2) Affirmative action, quota system and zipper system are proven effective to increase the number of women in the parliament. The application of vote majority rule which is in accordance with democratic values, should take into consideration the needs and interests of women as the group marginalized by this regulation. Taking this into account, it is worthwhile to reconsider to resolve the problem of female representation after the judicial review sanctioning the vote majority was issued.
Accordingly, on behalf of WRI Putri recommended the publication of two forms of law i.e., the law substituting government regulation (Perppu) and General Elections Commission (KPU) Regulation to give a strong legal foundation to apply the affirmative action in 2009 general election, with remarks “urgent for application”. This recommendation is the most logical one considering that he ballot casting is just 78 days away. This recommendation is in accordance with laws and the constitution, and therefore will not arouse legal disputes and will be able to reduce potential conflicts.
Moderator: the essence of Puput’s explanation is an invitation to think together how female votes can remain accommodated.
As the second speaker, Ani Soetjipto described the theoretical framework of affirmative action still not understood by decision makers, including those in the Constitution Court. In fact, the upper part of affirmative action is in the Law on Political Parties. How could women find the chance if the rule of vote majority is applied without affirmative action? 2004 data showed that women’s vote attainment was less than 10 percent.
According to her, there are many strategic options that can be made, although it is not easy legally and politically. First, the option of General Elections Commission’s Decree, second, Law Substituting Government Regulation (Perppu), and third, internal settlement within political parties which is no less difficult. The first option would face the fact the KPU is just an executional institution, not a legislative body. Concerning the Perppu, there must be a President’s approval. Moreover at legislative level, a quorum can hardly take place, whereas to pass a law necessitates approvals from both institutions. The third option is internal settlement among political parties, that is to lobby parties one by one for 3:1 representative placement. A party cannot control a candidate because it is an open system (“free market”) . The proposed idea is that we agree with the vote majority rule, but one out of three seats there must be given to a woman.
The third strategy offered by Ani is working together in the fields to win female candidates who can potentially get vote majority in the general election (mapping of electoral regions, analysis of legislative candidates’ potentials and data of potentially attained votes) and making vertical and horizontal strategies among various stakeholders to help win a particular candidate.
Concluding her presentation, Ani offered an affirmative recommendation, that is vote majority rule with 3:1 option that fulfills three prerequisites: a) decision to place a winning candidate is based on vote majority rule; b) vote counting should distinguish sexes; and c) one out of three candidates with vote majority must be of the other sex.
Fajrul Falakh explained that the Constitution Court’s (MK) decision that cancels article 214 can possibly annul affirmative action for female candidates, because number order rule does not apply anymore. With the absence of lucky numbers, we’d better forget affirmative action for quota. It is not just the cancellation of article 214, but the ticking off is made just once on the candidate and not on the party. Now all votes belong to the ticked off candidate. The three competing lines are quota, vote majority and the ticking off.
According to Fajrul article 214 also accommodates its reformulation. Article 214 determines the methods of division based the threshold, as a variation to List-PR system. First, a candidate that gets 100 percent of voters’ divisor will get the seat without any problem (letter c). Second, the threshold for a candidate to get a seat is 30 percent of the voter’s divisor (letter a). Third, seats are distributed according the number order if no candidate attains the threshold (letter d, and e). Fourth, if there are several candidates with the same vote attainment, seats are given to the candidates that come first in the number order (letter b and c).
Is it the candidate or the party that gets the seat? What is the formula to convert votes obtained by a political party or a candidate into a seat? Winning a candidate with 100 percent voters’ divisor or with the threshold of 30 percent voters’ divisor, back to 2003 General Election Law, or just follow the number order rule? The List-PR system that just commences has obviously triggered conflicts between candidates within a political party and their reconciliation in the legislative domain.
Moderator: the essence of Fajrul’s presentation is how the general election system can be “hospitable” and works out well for all parties.
Lena Maryana Mukti
Lena Maryana Mukti explained that our general election system is the result of a compromise. Sovereignty should be in the hands of the people. But according to our general election system, sovereignty is in the political party. General election participants are political parties, according to general election law. MK’s decision has changed the purely open proportional system into vote majority. MK’s decision has crushed the 2008 general election law. We try to make a breakthrough by finding a legal umbrella when the MK states that revision is not necessary. In article 218 there is a rule that regulates that it is the KPU that determines the winning candidate. This is the chance to change the KPU regulation.
Lena proposed not to use the Perppu, because it is already adequate to use the KPU regulation, since by the MK’s precedent, all regulations can be brought to the Constitution Court. Perppu goes through a very long way, first to government and then to the House of Representatives (DPR). For the 30 percent affirmative action alone we had to struggle for one year. The urgent strategy is going down to “flooded field”, do what you can do, do the campaign of “women vote for women”. So what is being pushed is to make a KPU regulation because it is part and parcel of MK’s decision. Perppu and other legal products will certainly be brought to the Constitution Court. Legal product is indeed important, but not for now, because the time is very short. 60 percent of a law is the result of negotiation, the remaining 40 percent is the result of scientific argumentation. Minister of Women Empowerment should work hard to advocate women’s role in the parliament. There will be vote markup because of vote majority regulation. It is wrong to say that affirmative action will stop at the nomination. Affirmative action should be placed proportionately.
Nursyahbani Katjasungkana concretized some methods employed by Ani Soetjipto and some opinions in this forum. She suggested that WRI would form a small team to formulate all possibilities that have the biggest chance of being attained in relation to MK’s decision. Nursyahbani agreed with Fajrul, but in fact SBY’s party endorses vote majority, while Perppu’s applicability prevails for just three months. There should be a smart working for the campaign.
By the cancellation of article 214 that becomes the heart of general election system based on 2008 general election law, the law’s legitimacy and authority disappear. So does the benefit of the law. Accordingly, the law’s legitimacy for 2009 general election has crumbled down. MK’s statement that KPU is ready carry out the decision is unfounded because up to this time KPU is still confused. According to 2004 general election law, petit political parties should not participate. But there is an exceptional article that allows petit political parties to participate. The result is 24 parties turned out to be 36 parties.
Moderator: Responding to Nur’s statement, we wonder whether it is possible for WRI to form a small team to lobby the KPU. WRI should present themselves together with some experts to the KPU.