Revising the Election Law: When Participants Write Their Own Rules

The Election Law governs the contest for power. When its drafters are the election participants themselves, a conflict of interest becomes inherent, and democracy becomes vulnerable to being steered by short-term electoral gains. It is rare for a law to be contested by two state institutions. The revision of the Election Law is an exception. Some time ago, the House of Representatives (DPR) and the government were both seen adamantly vying to be the initiator. This phenomenon raises a public question: what interests lie behind it? This is not merely an administrative dispute. Behind the scramble for the initiator position lies a deeper calculation: whoever holds the pen first has the greatest freedom to determine the direction of these electoral rules. The majority of DPR members are party cadres who will compete again in the 2029 elections. They have a direct interest: the rules born from this revision will determine their party’s chances of survival. The government has a different calculation—more towards stability and continuity of power—but it is not a neutral party either. Both are players, not referees. Looking deeper, the struggle over the initiator position is not really about who writes the draft first, but about who has greater influence in designing the ‘rules of the game’. Whoever helps determine the rules of the game has a greater chance of influencing the outcome of the game itself. In football, FIFA, as the governing body, does not hand over the drafting of match rules to the football teams that will compete. In the capital market, the regulator is not handed over to the trading companies. Yet, in Indonesia’s democracy, the rules of political competition are designed by the competitors themselves. This analogy fits perfectly with the mechanism for forming the Election Law that we have adhered to so far, where actors who will become election participants dominate the making of the election rules themselves. As a result, the election law is often problematic. It is undeniable that the Election Law is the law most frequently challenged in the Constitutional Court, and this is no coincidence. The main problem lies in the structural conflict of interest that permeates its formation process: the DPR and the government, who are the election participants themselves, design the rules that are supposed to govern 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 complicate competition. The results are predictable: rules that are constantly challenged due to legitimacy defects, a system that benefits established parties, and a democracy trapped in a cycle of political entrenchment. This is the root of why the Election Law is the most problematic legal product and the most frequently tested in the Constitutional Court. As an election organiser, I have witnessed first-hand how the flaws in the Election Law do not stop at legal debates in the courtroom. When an article is challenged in the Constitutional Court, the election stages cannot wait for a ruling. The stages must continue—implementing the rules that are being disputed, amidst uncertainty over whether they will be upheld or annulled. That burden is not borne by those who designed the rules. It falls entirely on the shoulders of the organisers—and ultimately, on the voters who hope the process runs correctly. The Election Law is no ordinary law. The Health Law regulates public services, but it does not determine who holds power. The Election Law determines both: who is allowed to compete, how the winner is decided, and how power is transferred. It is the rulebook for the entire political system. And that rulebook is currently being drafted by the players themselves. The incentives are clear. Electoral district rules determine whether a small party has room or not. The parliamentary threshold can be a selection tool that benefits established parties. Candidacy requirements can be tightened or relaxed depending on who benefits. It is difficult to expect neutrality from players who are designing their own rules of the game. In contrast to Indonesia, practices in other democratic countries involve independent mediators, special non-partisan commissions, or broad participation from civil society and election administrators in regulating elections. Indonesia allows directly interested political actors to dominate the legislative process. In Canada, several important aspects of elections, such as electoral boundary delimitation, election administration, and reform recommendations, are largely handled by non-partisan bodies. New Zealand went even further by forming a Royal Commission, conducting expert studies, public consultations, and 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 thing that we have yet to adopt as a principle: the Election Law is too important to be left to those with the greatest stake in its outcome. Allowing competitors to design the rules of the competition is not only ethically flawed but also structurally defective. And structural defects cannot be fixed merely with good intentions. When the making of election rules is entirely in the hands of the competitors, the door to constitutional engineering is thrown wide open. It is not always done in a crude or visible way. On the contrary, the shifts are subtle: a threshold raised slightly, electoral districts rearranged, candidacy requirements tightened at certain points. The result is not a set of rules that are blatantly unfair, but rules that are systematically biased.