Juridical Analysis of the Presidential Threshold in Indonesia

This study aims to determine the juridical fundamentals and analyze the constitutionality of the provisions of the Presidential Threshold against the 1945 Constitution. The type of research used is normative or doctrinal legal research using a comparative law approach. The method of analysis in this study is to use qualitative analysis. The study results indicate that the Presidential Threshold mechanism in Indonesia has had juridical fundamentals from 2004 until now. In this case, it includes Article 6A section (2) and section (5) of the 1945 Constitution, Article 5 section (4) and Article 101 of Law No. 23 of 2003, Article 9 of Law No. 42 of 2008, to Article 222 of Law No. 7 of 2017. However, Article 222 of Law No. 7 of 2017 is a closed legal policy and not an open legal policy. Therefore, the Presidential Threshold mechanism regulated in Articles of Law up to Article 222 of Law no. 7 of 2017 can be judged unconstitutional or contrary to the 1945 Constitution. Based on this conclusion, it is suggested that the Constitutional Court consider the juridical language of Article 6A section (5) of the 1945 Constitution. In this case, Law No. 7 of 2017 does not contradict the 1945 Constitution. In addition, it is also recommended for Legislators to make amendments to Law No. 7 of 2017. Furthermore, it is hoped that Legislators will consider increasing the Parliamentary Threshold as an effort to strengthen the presidential system in Indonesia.


INTRODUCTION
As a democratic state, Indonesia as based on Article 1 section (2) of The 1945 Constitution of the Republic of Indonesia (hereinafter referred to as The Constitution of 1945), which regulates that "Sovereignty is in the hands of the people and is implemented according to this Constitution". The constitutional implication of the article requires that all State and government affairs must be carried out through democratic means, including the implementation of General Election (Election).
Before the third amendment to The Constitution of 1945, the people did not directly elect the President and Vice-President in Indonesia. 1 In this case, based on Article 6 section (2) of The Constitution of 1945, which regulates that "the President and the Vice-President are elected by the People's Consultative Assembly with the most votes". Because the People's Consultative Assembly elects the President, the President is fully responsible to the People's Consultative Assembly, and the People's Consultative Assembly has the authority to dismiss the President. 2 In addition, the presidential election is considered undemocratic and tends to be politicized. Therefore, the People's Consultative Assembly amended the Constitution of 1945 to strengthen the presidential system and improve the quality of democratization of the presidential election in Indonesia. 3 The aspiration to strengthen the presidential system is manifested in the results of the third amendment, where the inclusion of Article 6A section (1) of the 1945 Constitution regulates that "the President and Vice-President are elected directly as a pair by the people". It means that the people must directly elect the President to create a strong presidential system.
Article 6A section (1) of the 1945 Constitution has been implemented since the 2004 Election. One of the new things found in the 2004 Election was enacting rules regarding the threshold mechanism. In simple terms, the threshold is the minimum limit of support or votes that participants must have to obtain certain rights in elections. In terms of its functions and uses, the threshold's application is to reduce the number of election participants, reduce the number of political parties in representative institutions, and reduce the number of political parties in nominating the President and Vice-President.
The threshold for the nomination of President and Vice-President is known as the Presidential Threshold. 4 The Presidential Threshold is defined as the threshold for obtaining votes or obtaining seats that political parties must get in the Legislative Election to nominate candidates for President and Vice-President. 5 The provisions regarding the Presidential Threshold always change every time an election is held. The conditions regarding the Presidential Threshold have been amended several times during the Presidential and Vice-Presidential Elections.
The Presidential Threshold provision in the Presidential and Vice-Presidential Elections in 2004 was 3 percent. Furthermore, the Presidential Threshold in the 2009 election increased to 20% and continued until the 2019 Presidential and Vice-Presidential Elections. Based on Article 222 of Law of the Republic of Indonesia Number 7 of 2017 on General Election (hereinafter referred to as Law No. 7 of 2017), regulates that: "The pair of candidates are proposed by political parties or coalitions of political parties which are participants in the general elections who meet the requirements for obtaining seats of at least 20% (twenty percent) of the total seats in the House of Representatives or obtaining 25% (twenty-five percent) of the national valid votes in the previous general election for members of the House of Representatives." Those who are pro against the above provisions consider the Presidential Threshold of 20% to create a more muscular presidential system. In this case, it will make it easier for the selected candidates to carry out their work programs in the future. In addition, the Presidential Threshold of 20 % is considered to reduce the number of pairs of candidates in the Presidential and Vice-Presidential Elections. Meanwhile, those who reject or oppose the implementation of the Presidential Threshold of 20% consider this provision as an anti-democratic form and can reduce the people's right to obtain the President they want. In addition, it can close the opportunity for political parties that have minimal seats in parliament to nominate a pair of Presidential and Vice-Presidential candidates. Based on the description of the background above, this study aims to determine the juridical fundamentals of the Presidential Threshold in Indonesia from 2004 to 2017. Furthermore, to analyze the constitutionality of the provisions of the Presidential Threshold against the 1945 Constitution.

METHOD
The type of research used is normative or doctrinal legal research using a comparative law approach. The sources of legal materials used consist of: 6 1. Primary legal materials, namely binding legal materials. In this case, in the form of laws and regulations, jurisprudence, treaties, and other crucial legal materials. 2. Secondary legal materials, namely materials that explain primary legal materials obtained from library studies. In this case, in the form of literature related to research problems. 3. Tertiary legal materials, namely materials that provide information and explanations about primary legal materials and secondary legal materials. In this case, in the form of legal dictionaries, newspapers, and encyclopedias.
The technique used in collecting research materials is library research, including collecting, reading, and browsing many journals, books, laws and regulations, scientific works, literature from the internet, and other materials. In this case, it is related and can support this research's preparation. All data that has been collected will then be classified and analyzed to produce conclusions from the materials obtained according to the problems discussed. The method used in data analysis is qualitative analysis, which describes quality data in regular, coherent, logical, non-overlapping, and effective sentences. In this case, to facilitate the analysis and interpretation of data.

RESULT AND DISCUSSION
A. Juridical Fundamentals on Presidential Threshold in Indonesia

Presidential Threshold in the 1945 Constitution
Article 6A of the 1945 Constitution does not regulate the Presidential Threshold. However, based on Article 6A section (2) of the 1945 Constitution, regulates that:

"The pair of candidates for President and Vice-President is proposed by political parties or coalitions of political parties which are participants in the general elections prior to the holding of general elections."
Furthermore, based on Article 6A section (5) of the 1945 Constitution, it regulates that "the procedures for holding the election of the President and Vice-President is further regulated by law".
The meaning of the above provisions gives the Government and the House of Representatives constitutional authority to make more comprehensive rules regarding the procedures for holding the election of the President and Vice-Presidential. However, the Law also regulates the Presidential Threshold. In this case, the Presidential Threshold is a condition for political parties to propose a pair of candidates in the General Election of the President and Vice-President. 7

Presidential Threshold in Law No. 23 of 2003
Presidential Threshold, as based on Article 5 section (4)  Based on the above provisions, the Presidential and Vice-Presidential Election uses a presidential threshold system for the first time. In addition, for the first time, the Presidential and Vice-Presidential were directly elected by the people. The elections, which were held on July 5, 2004, were followed by 5 (five) pairs of candidates for President and Vice-President, namely:

B. Constitutionality of Presidential Threshold against the 1945 Constitution
The Constitution (The 1945 Constitution) is the state's basic norm, the highest source of law in a country. 8 As the highest source of law, the constitution is the rule that inspires all the formation of laws and regulations under it. 9 This case includes forming laws as rules that are hierarchically under the constitution. The content of the law regulates orders and further elaboration of the constitution's contents. Therefore, the law must not conflict with the constitution at the time of its formation. Hans Kelsen introduced the "stufenbau" theory or hierarchy of laws and regulations. 10 The theory explains that the legislation as a whole is like a pyramid. The basic norms at the top of the pyramid are universal and abstract. 11 So that the further down, the more diverse and more concrete. 12 The hierarchy of laws and regulations in Indonesia as based on Article 7 section (1)  The purpose of the above provisions is that the 1945 Constitution as a legal policy must be used as the basis for legislators to form and regulate the material content of the law. Likewise, with the Election Law, its formation must be consistent and not contradict and not conflict with higher legal norms, namely the 1945 Constitution.
However, Law No. 7 of 2017 raises the pros and cons and debates, especially related to the article regarding the provisions on the Presidential Threshold. Law No. 7 of 2017 is considered unconstitutional or contrary to the 1945 Constitution. The implementation of this system is regarded as an attempt to block the potential of Small Parties. In this case, implementing the requirements for obtaining seats of at least 20% of the total seats in the House of Representatives or obtaining 25% of the valid national votes closes the opportunity for small parties to propose candidates for Presidential and Vice-Presidential. 13 Implementation of the Article 222 of Law No. 7 of 2017 proved to limit the choice of the pair of candidates. In this case, 2 (two) Elections in a row were only able to produce 2 (two) candidates for President and Vice-President, which were dominated by old faces. Presidential and Vice-Presidential Elections with 2 (two) pairs of candidates have also been proven to increase the intensity of community conflict during elections. The Presidential and Vice-Presidential Elections in 2014 and 2019 have created sharp societal divisions between supporters from both sides of the pair of candidates for President and Vice-President. On the other hand, Law No. 7 of 2017 also regulates simultaneous elections between legislative and executive elections. If it is related to the Presidential Threshold requirement, simultaneous election implementation can no longer be relevant. The Presidential Threshold requirement based on the general election for members of the House of Representatives five years ago can block, amputate, or violate the rights of new political parties to propose the pair of candidates for their President and Vice-President. Therefore, Article 222 of Law No. 7 of 2017 should be repealed and declared ineffective.
Indeed, Law No. 7 of 2017, specifically related to Article 222 of Law No. 7 of 2017, which regulates the Presidential Threshold, allegedly contradicts several provisions or articles mandated in the 1945 Constitution. However, only the Constitutional Court can decide a law is considered unconstitutional or contrary to the 1945 Constitution or vice versa. 17

CONCLUSIONS AND SUGGESTIONS
Based on the results and discussion above, it can be concluded that the Presidential Threshold mechanism in Indonesia has had juridical fundamentals from 2004 until now. In this case, it includes Article 6A section (2) and section (5)  not an open legal policy. Therefore, the Presidential Threshold mechanism regulated in Articles of Law up to Article 222 of Law no. 7 of 2017 can be judged unconstitutional or contrary to the 1945 Constitution. However, the Constitutional Court believes that the Presidential Threshold mechanism does not conflict with the 1945 Constitution. Based on this conclusion, it is suggested that the Constitutional Court consider the juridical language of Article 6A section (5) of the 1945 Constitution so that Article 222 of Law No. 7 of 2017 does not contradict Article 6A section (2) of the 1945 Constitution. In addition, it is also recommended for Legislators to make amendments to Law No. 7 of 2017, where the Legislators removed Article 222 of Law No. 7 of 2017 regarding the Presidential Threshold mechanism. Furthermore, it is hoped that Legislators will consider increasing the Parliamentary Threshold. In this case, the political consequences of a state with a multi-party system can cause problems that disrupt government stability. So that rising the Parliamentary Threshold is an effort to strengthen the presidential system in Indonesia.