Revising the Election Law: When Participants Write Their Own Rules

The Electoral Law is the rule governing the contest for power. When its drafters are electoral participants themselves, conflict of interest becomes inherent and democracy is vulnerable to being steered by short-term electoral interests.

Rarely does a single bill become contested by two institutions. The revision of the Electoral Law is an exception. Some time ago, the DPR and the government appeared equally insistent on becoming its initiator. This phenomenon raises a public question: what interests lie behind it?

This is not merely an administrative dispute. Behind the tussle over the initiator’s position lies a deeper calculation: whoever holds the pen first has the greatest freedom to determine where the electoral rules are taken.

The majority of DPR members are party cadres who will fight again in the 2029 general election. They have a direct stake: the rules born of this revision will determine their parties’ survival. The government has a different calculation — oriented towards stability and continuity of power — but it is by no means a neutral party either. Both are players, not referees.

Looked at more closely, the fight over the initiator’s position is not really about who drafts first, but about who wields greater influence in designing the political “rules of the game”. Whoever helps set the rules of the game has a greater chance of influencing the outcome of the game itself.

Endogenous Rule-Making

In football, FIFA, as the governing body, does not hand over the drafting of the laws of the game to the teams that will compete. In the capital market, regulation is not entrusted to the companies that trade. Yet in Indonesian democracy, the rules of political competition are designed by the competitors themselves.

This analogy fits precisely the mechanism by which our Electoral Law has long been made: the actors who will later become election participants dominate the making of the very rules of the game. The result is that electoral legislation is frequently problematic.

It cannot be denied that the Electoral Law is the statute most often challenged before the Constitutional Court — and this is no coincidence. The root problem is the structural conflict of interest that permeates the drafting process: the DPR and the government, themselves election participants, design the rules that are supposed to regulate them.

In political and legal theory this is known as endogenous rule-making, which naturally tends to favour the position of the rule-makers and makes competition harder. The outcomes are predictable: rules perpetually challenged for lacking legitimacy, a system that favours established parties, and democracy trapped in a cycle of political entrenchment. This is the root of why the Electoral Law is the most problematic legal product and the one most frequently tested before the Constitutional Court.

As an election organiser, the writer has witnessed firsthand how defects in the Electoral Law do not stop at legal debates in the courtroom. When an article is challenged before the Constitutional Court, the electoral timetable cannot wait for a ruling. The stages must keep moving — executing rules that are under challenge, amid uncertainty over whether those rules will survive or be struck down. That burden is not carried by those who design the rules. It falls entirely on the shoulders of the organisers — and ultimately, on the voters who hope the process runs properly.

Not an Ordinary Law

The Electoral Law is no ordinary statute. The Health Law regulates public services, but does not determine who holds power. The Electoral Law determines both: who may compete, how winners are decided, and how power changes hands. It is the rules of the game for the entire political system. And those rules are now being designed by the players themselves.

The incentives are clear. Electoral district rules determine whether small parties have any room at all. A parliamentary threshold can become a selection tool favouring established parties. Nomination requirements can be tightened or loosened depending on who benefits. Neutrality can hardly be expected from players designing their own game.

A Democracy That Protects Itself

Unlike in Indonesia, other democratic countries involve independent mediators, special nonpartisan commissions, or broad participation from civil society and election organisers in electoral regulation. Indonesia allows political actors with a direct stake to dominate the legislative process.

In Canada, important aspects of elections — such as electoral districting, election administration and reform recommendations — are largely handled by nonpartisan bodies. New Zealand went even further, establishing a Royal Commission, conducting expert reviews and public consultations, and even holding a national referendum when deciding to change its electoral system from First-Past-The-Post to Mixed Member Proportional (MMP).

The experiences of Canada and New Zealand teach one lesson we have yet to adopt as a principle: the Electoral Law is far too important to be left to those with the greatest stake in its outcome. Letting competitors design the rules of their own competition is not only an ethical defect but a structural one — and a structural defect cannot be fixed by good intentions alone.

When electoral rule-making rests entirely in the hands of competitors, the door to constitutional engineering swings wide open. Not always in crude or visible ways. Quite the opposite: the shifts are subtle — a threshold raised slightly, electoral districts redrawn, nomination requirements tightened at particular points.

The result is not rules that are blatantly unfair, but rules that feel neutral on the surface while working systematically to narrow the alternatives available to voters and secure the interests of those already in power. Here, the line between legislation and power consolidation becomes very thin — and very hard to prove.

An honest election begins long before polling day. It begins with honesty in designing its rules. And that honesty can hardly emerge from the hands of those with the greatest stake in the outcome. Has our Electoral Law been freed from those hands yet?