Public Dialogue Report “Indonesian Women Representation after the Judicial Review of General Election Law No. 10/2008”, 21 January 2009
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Event / Seminar
Year Commencing Notes of Women Research Institute
Edriana Noerdin as research director of Women Research Institute (WRI) gave an opening 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 women 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 women representation in the parliament after a judicial review was issued by the Constitutional 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 women 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 women 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 Constitutional Court’s judicial review might weaken women 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 women 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 women 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 (Peraturan Pemerintah Pengganti Undang-Undang or Perppu) and General Elections Commission (Komisi Pemilihan Umum or 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 then concluded that the essence of Puput’s explanation is an invitation to think together how women votes can remain be accommodated.
As the second speaker, Ani Soetjipto described the theoretical framework of affirmative action still not understood by decision makers, including those in the Constitutional 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? Data of 2004 general election 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 women 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 Constitutional Court’s (MK) decision that cancels article 214 can possibly annul affirmative action for women 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 Constitutional 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 Constitutional Court. Legal product is indeed important, but not for now, because the time span 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.
Sjamsiah Achmad (National Commission for Women’s Rights): If the KPU can be more law-based, better for it to make a new regulation. The ball is in the KPU’s hands. Article 28H verse 2 enables an affirmative action for two things: obtaining an equal chance with the same benefit. The chance is in article 55, the benefit is article 214.
Reny R. Pasaribu (PSHK – Center for Law and Policy Studies): The more strategic thing is the Perppu. In terms of content, it is the Perppu that contains the law, not the institution. The Perppu does not apply just for three months; it is applicable until the next session period. DPR’s session after the one that took place yesterday is scheduled for beyond April 15 after the general election. PSHK that is consistent to do advocations in the DPR is always ready to push the issuing of a Perppu.
Yuda Irlang: if the DPR’s session can take place earlier, it will be a blunder (making the Perppu). Initially it was only PAN, and then because of KPU’s sin of announcing the 38 political parties, Democrat and Golkar were to follow suit supporting the vote majority.
BRA Moeryati Soedibyo (member of Council of Regional Representatives [DPD] for women affairs and member of women caucus in the DPD): making a strategy with the Perppu is impossible, because proposing parties are Democrat and Golkar. So, it is very likely that the session is expedited.
Titi Sumbung (Democrat Party for Political Affairs): We don’t mean that we do not agree with the KPU. But KPU is just an executional agent. It should refer to a higher institution. There has not been any legal product that can replace 214 regulation, and which system is to be used. MK just annulled the article 214. This does not automatically mean that we use the vote majority. That’s why it is high time to determine which general election system is to be used. Other than that we should do political education for women candidates. This decision was proposed by two persons, sanctioned by nine judges in three months for one article, and agreed upon after one year deliberations. Remembering the present condition, it is better for us to speak hard to the MK. Do demonstrations and voice it to the media. MK’s decision is unconstitutional, and runs up against article 28H of the Constitution, general election law, political party law, and many others.
Fajrul Falakh (responding to Reni): KPU is the administrator.
Lena Maryana Mukti: I have not stated it clearly that our initial demand is the Perppu. But in order to be more realistic, it must be narrowed. It is just enough with a regulation (not law-substituting). In the KPU itself they are is divided. There are members who agree with the Perppu, there are others who endorse a regulation. From party verification itself it is already wrong, whereas with General Elections Law article 222, a legal umbrella for KPU is clear, it is an independent institution. General Elections Law No.10 of 2008 is very different from General Elections Law No.12 of 2004. Candidates can be killing each other because of vote majority. Party leaders and political elites translate democracy too narrowly. Almost all faction chairpersons rejected this.
Ani Soetjipto: This is a real challenge for women’s movement fighters. Public is not against women candidates. But what can be brought by women candidates to defend their constituents’ interest? In NGOs women are united in solidarity, but how about the solidarity in political parties? Inputs from PSHK and Fajrul make sense. In the newest edition of Tempo, KPU has declared that ticking off both the political party and the candidate is valid, so what is the affirmative action for women not to get into a free fight.
Aisah Putri Budiatri (responding to Titi Sumbung): Can the MK be sued? According to her, it is better to choose a legal line than to do demonstrations. From legal umbrella perspective, better for us to opt for the Perppu, but from time perspective and other things, it is better to choose the KPU regulation. Her suggestion: wait until the week is over. Push the government to issue a Perppu as promised by the KPU. But if it is not materialized, we demand to sue the KPU.
Sheriseda Manaf (Democrat Party’s candidate): Do not see me as a member of Democrat Party, see me as a women candidate. 30 percent quota can only prevail during the SBY administration. There are many women candidates with insufficient knowledge. Many women candidates whom I met are premature candidates just to fill up the quota. It is better for us to collaborate with NGOs to get as many constituents, and how to keep secure women votes.
Moderator: WRI is ready to facilitate a small team to lobby the KPU. For practical solution, 3:1 must be pressed. Tomorrow there will be a meeting in WRI to discuss about various things that can be made.