Small parties seek review of election law

The Jakarta Post, Jakarta

In what could mark the country's first judicial review under the amended 1945 Constitution, six political parties, each with less than 2 percent of seats at the House of Representatives, plans to request that the Supreme Court review the new elections law, which had been described as "unfair".

However, a noted expert said Monday that a judicial review was appropriate only if the law violated the Constitution, while in the case of the election law, it could have violated the freedom of association or the articles against discrimination.

"We hope to submit the judicial review request this week," chairman of the Justice Party Hidayat Nurwahid told a press briefing as quoted by Antara on Monday.

Currently the Supreme Court acts as the Constitutional Court, a product of the amended Constitution, that has the power to amend laws after they are enacted by the House.

The Justice Party is one of several political parties now effectively barred from participating in next year's election because of the new law.

Only parties with at least 2 percent of seats at the House are eligible for elections. The rest must either merge with other parties or reapply under a new name.

Now, the Justice Party, the Masyumi Party, the Nahdlatul Umat Party (PNU), the Umat Awakening Party (PKU), the Indonesian Islamic Party (PII), the Just Welfare Party (PAS), and the United Development Reform Party seek to challenge that ruling through a judicial review.

Hidayat called the election law unfair and inconsistent with the law on political parties.

Aside from questioning the 2 percent threshold, he also pointed to an inconsistency with the open-list electoral system as required under article six.

Hailed as a major step toward democracy, the open-list system stipulates future legislators are to be directly elected.

A contestant must have a minimum amount of votes to secure a seat at the House. The remaining seats that are left after all votes have been counted and allotted to the eligible contestants, will be spread among others who lack the minimum amount of votes.

But instead of distributing them based on the contestants' highest votes, article 107 allows parties to select the members regardless of how many votes they won.

"These two items are very crucial as they are totally unfair, and will lead to a flawed 2004 election," Hidayat said.

Legislators recently passed the election law after months of foot-dragging that nearly risked next year's election schedule.

It is one of five laws the House must issue to meet the sea changes necessary under the new political system brought about by the amendment of the 1945 Constitution.

Activists have said the amendment fell short of imposing strict reforms, citing resistance among the political elite.

Analysts noted that various problems in the new political laws and bills were the result of this shortcoming.

So far the House has passed two laws, the election law and the law on political parties. In the pipeline are the laws on the direct presidential election, and the composition of legislative bodies.

University of Indonesia constitutional expert Jimly Asshiddiqie, however, doubted the effectiveness of a judicial review, saying that it was effective only if the law violated the Constitution.

According to Jimly, the election law was concerned more with violation of freedom of association and acts of discrimination rather than violation of the Constitution.

He also said that the political parties' planned judicial review could be the first of its kind since it was introduced by the amended Constitution.

"If it is felt that the law is the product of the political elite's short-term interests, then it must be repealed," Jimly said.