Presidential Threshold Abolished by Constitutional Court: How Will 2029 Candidates Be Nominated?

In addition to the parliamentary threshold, the Constitutional Court (MK) ruling on election design also concerns the presidential nomination threshold.

Through decision number 62/PUU-XXII/2024 on 2 January 2025, the MK declared Article 222 of Law Number 7 of 2017 concerning Elections to be in conflict with the 1945 Constitution and without binding legal force. The MK has requested the House of Representatives (DPR) to abolish it entirely, including the 20 per cent threshold that has been in effect.

“Whatever the amount or percentage, it is in conflict with Article 6A paragraph (2) of the 194/1945 Constitution,” stated MK Deputy Chairman Saldi Isra while reading the verdict.

The presidential threshold requirement in the Election Law, stipulated in Article 222, stated: “Candidate pairs are proposed by political parties or coalitions of election participants that meet the requirement of obtaining at least 20% (twenty per cent) of the number of seats in the DPR or obtaining 25% (twenty-five per cent) of the valid national votes in the previous election for members of the DPR.”

The MK views that the implementation of the threshold so far has limited the constitutional rights of citizens to have alternative candidates in the presidential election, as contestants have always been dominated by candidates from certain parties.

On the other hand, the MK believes that limiting the number of presidential and vice-presidential candidate pairs to only two pairs also creates strong polarisation in society. According to the MK, maintaining such a limit is equivalent to obstructing the public’s right to direct elections.

However, as a consequence, through this ruling, the MK has requested the DPR to perform ‘constitutional engineering’ to ensure that the number of presidential and vice-presidential candidate pairs does not become excessive.

The MK also imposed a sanction in the form of a ban on participating in the next election for parties that do not propose or participate in proposing presidential candidate pairs.

Unlimited Nominations

University of Indonesia (UI) election expert, Titi Anggraini, assesses that the MK decision to abolish the threshold clearly states that moving forward, at least for the 2029 Presidential Election, nominations must not be based on the number of seats in the DPR or the results of election votes.

According to Titi, although the MK has asked the DPR to perform constitutional engineering so that the number of candidate pairs is not too large, the limitations must still follow the MK’s guidelines. First, to prevent the dominance of certain parties or coalitions in nominating presidential and vice-presidential pairs. Second, the MK mandates that every party must nominate its own candidate. And third, parties that do not nominate a candidate will face a ban from participating in the next election.

Titi believes that in this context, constitutional engineering can be carried out by the DPR to promote democratisation within political parties. She suggests that parties could hold internal conventions to select the presidential or vice-presidential candidates they wish to nominate.

“Thus, the nominated candidates will not emerge from an elitist and instant process that relies solely on the decisions of a few people, particularly the general chairpersons and secretaries-general,” Titi said when contacted on Monday (21/9).

Titi also proposed that the DPR mandate that parties nominating presidential or vice-presidential candidates must draw from their own cadres. She believes that presidential and vice-presidential nominations should not be based on pragmatism and popularity.

Therefore, the necessary step is a democratic process within political parties to enable them to nominate candidates. According to Titi, nominating cadres is a form of responsibility for the political process within the party.

“What needs to be strengthened is a selection process that is democratic and accountable, rather than reviving limitations on nominations based on votes or DPR seats,” she said.

The former Director of Perludem even rejected any form of limitation on the number of candidate pairs. She questioned what the upper or lower limits would be if discussions were held.

“What are the measurable variables and parameters to determine if candidate pairs are too many? Is it ten candidates or how many?” said Titi.

In the last Philippine Presidential Election in 2022, Titi noted, there were 10 pairs of presidential and vice-presidential candidates competing. The same occurred in Timor-Leste.

She reminded that presidential and vice-presidential candidate pairs can only be proposed by parties, while forming a party in Indonesia requires difficult conditions.

“From that alone, it already serves as a filtering instrument for nominating presidents and vice-presidents,” she said.

On the other hand, even without restrictive engineering, Titi believes that parties will remain realistic in nominating presidential or vice-presidential candidates. Nominations will still be based on the strength of party infrastructure.

“If a candidate is not potential and lacks a significant chance, they will certainly think rationally that it is better to form a coalition with a more prospective party to be part of the elected cabinet or government later,” she said.

In the 2004 Presidential Election, with a threshold of 3 per cent, only five pairs of presidential and vice-presidential candidates competed. Similarly, in 2009, even though the Democrats won up to 20 per cent in the DPR, they still formed a coalition with other parties.

“Political parties will certainly think rationally and with careful calculation in presidential nominations. Moreover, campaigning requires significant costs,” she added.

Titi noted that while the MK has asked the DPR to perform constitutional engineering, it also ordered every party, whether alone or in a coalition, to nominate a presidential or vice-presidential candidate. The MK strictly prohibits any form of limitation in the form of a threshold for presidential or vice-presidential candidates.

“Additionally, if there are requirements for internal selection, parties can be protected from political opportunists who merely take advantage of the nomination ticket,” she concluded.