By: Reshina Kusumadewi as Staff of Legal Research and Development

ALSA LC UI 2019

Alexandria Ocasio-Cortez is a congresswoman which also happens to be the youngest one in the parliament. Her bold liberal views and outspokenness has gained her headlines and popularity since her win over veteran Rep. Joseph Riley.^[1] With her power within the congress and social media, she uses both of her channels to advocate for free tuition, universal single-payer health care, decent wage and birth control. On one occasion, she also pointed out the flaw in Georgia’s heartbeat bill which bans abortion after the 6^th week of pregnancy, where it might be ignoring female biological conditions. When we look at Alexandria Ocasio-Cortez, we can see that a woman’s presence in parliament would contribute to gender sensitive laws. ^[2]

Statistically, a census conducted in 2015 showed that ⅘ population in Indonesia is female.^[3] With the big number of female population, there are only as many as 17,32% women in the parliament.  In addition to that, CETRO (Central for Electoral Reform) argued that there are women’s needs that only women have full understanding of, but these needs have not been addressed sufficiently, because men are in charge of legislation making.^[4] This proves that we need more women in the decision making bodies.

Cultural feminism theory believes that “formal” equality does not mean “substantive” equality. This means, women being treated the same way as men legally is not enough in order to address equality. The law should celebrate the differences between men and women, treating them differently in areas where they are different.^[5] In some contexts, policies which give special treatment are needed to achieve equality. A lot of countries has opted for affirmative action, including Indonesia. Therefore, the rise of affirmative action can be seen as a respond to the history of the social system and institutionalized discrimination where women have different experiences than men.

According to Tom Campbell, a proffessor of jurisprudence, affirmative action can be described as policies issued for certain groups who do not have adequate representation in the community in history caused by discrimination. In addition, Elizabeth S. Anderson, an American philosopher in moral and political philosophy,  defines affirmative action as every policy that has a purpose to (a) strive to eliminate barriers in the system and norms towards the group as a result of a history of injustice and inequality, and/or; (b) strive to promote an inclusive society as a precondition for democracy, integration and pluralism; (c) seek equality on the basis of classifying identities (race, gender, ethnicity, sexual orientation, etc).^[6] In political sense, affirmative action is taken to increase the number of women in the parliament to make women more represented.^[7]

 As reported by The United Nations Division for the Advancement of Women (“UN-DAW”), women’s interests will start to be taken into public account when there are 30% women in the parliament. This number is taken from Rosabeth Moss Kanter (1977) and Dahlerup (1988) work.^[8] In Kanter’s work, she created a typology in a large American corporation which contains four majority–minority distributions. First, is a group with one significant social type, at a ratio of 100:0, second is called skewed groups, with one social type dominating, perhaps at 85:15 ratio. Third, tilted groups with a less extreme distribution of social types, at a ratio of 65:35, and lastly balanced groups with 60:40 or 50:50 ratio. In skewed groups, she found that the dominants will stress the minority which results in challenges at work. Kanter drew conjectures from the typology, that suggest women in tilted groups are able to evade challenges which had previously prevented them from forming coalitions with other women and affect the general culture.^[9] Meanwhile, Dahlerup which tailored Kanter’s work in the political realm stated in her work that in a group with the ratio of 65:35, the minority is becoming strong enough to influence the culture of the group, and alliances between minority group members become a possibility.^[10] This ratio then becomes the 30% rate The UN-DAW adopted.

 If we look beyond the numbers, a study has shown that the number of female representatives are parallel to the passing of gender sensitive laws. It is shown that developing countries with higher share of women parliamentarians are more likely to pass comprehensive laws on sexual harassment, rape, divorce and domestic violence.^[11] Meanwhile, Indonesia which has a relatively low female representation is slow in passing law concerning sexual harassment, the example being Bill Draft on the Elimination of Sexual Violence. After it was established as The House Representative of Republic Indonesia initiative bill in February 2017, the discussion of the Bill Draft on the Elimination of Sexual Violence In the House of Representatives Commission VIII has been slow. After two years, the committee of Commission VIII of The House Representative of Republic of Indonesia Bill Draft on the Elimination of Sexual Violence is still struggling to hold public hearings (RDPU).^[12] Meanwhile, Maria Farida, the first female Constitutional Court judge in Indonesia is using her platform to stop child marriage. In her point of view, The House of Representative of Republic Indonesia is being slow in doing legislative review regarding the age limit for marriage, and it is The Constitutional Court’s authority to step in.^[13] Here, she views the law as a social tool of social engineering, which hopefully can change the tradition of child marriage that still happens. This change is an important one, as she mentioned that marriage below the age of 21 is a violation of children’s rights to get education. However, this attempt failed when 8 constitutional judge think otherwise.^[14] Let’s say there are more women like Maria Farida in Indonesian parliament, a constitutional court judge would not have to cross the line in order to step in for The House of Representative of Republic Indonesia.

In Indonesia, affirmative action has been implemented for more than a decade in the election and political party laws. Over the time, we can see there has been an increase of female representation in the parliament. When it was first implemented, there were only 11,82% female. Fifteen years later in 2019, female representative in the parliament reach 20,5%.^[15] Despite of the improvement achieved, this rate is still far from the ideal 30% rate The UN-DAW suggests.

 The legal basis for affirmative action in Indonesia is written in laws which was ratified from international conventions, especially those that specifically address women’s rights issues. First, Article 3 Law No. 68 of 1958 concerning Law on the Agreement on the Convention on the Political Rights of Women which states, “women will have the right to hold public office and run all general tasks, established by national law, with the same conditions with men, without discrimination”^[16]. Secondly,  Article 7 Law No. 7 of 1984 concerning Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women which states, “States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country”^[17].

Affirmative action was implemented for the first time in the 2004 election. It was regulated in Article 13 Paragraph (3) Law No. 31 of 2002 concerning Political Party which states, “The management of political parties in each council is chosen by a political party discussion forum in accordance with the articles of association and by-laws with regard to gender equality and justice”.^[18] Furthermore, Article 65 Paragraph (1) Law No. 12 of  2003 concerning General Elections of Members of The House  of Representatives, Regional Representatives introduced quota policy, requiring political party to carry out at least 30% female candidates in the legislative election.^[19] Quota policy then becomes a staple in the law concerning election in the following years. In addition to that, zipper system is also taken starting from 2009 election. Zipper system is a system which puts women and men alternately on the list of legislative election.  In Article 55 Paragraph (2) Law No. 10 of 2008 as substitute of Law No. 12 of 2003 stated that zipper system is regulated in order to place female candidates in a strategic number on the list, increasing the possibility to be elected. This system required every three candidates to have at least one female candidate in it. However, in the Constitutional Court Decision No. 22-24/PUU-VI/2008 The Constitutional Court decided that the determination of legislative candidates based on number as regulated in Article 214 Paragraph a-e of Law No. 10 of 2008 is against the 1945 Constitution of The Republic of Indonesia Article 22E Paragraph (1), Article 27 Paragraph (1), Article 28D Paragraph (1) and (3), Article 28E Paragraph (3).^[20]

            When we take a look at the case in the 2009 election, The Constitutional Court deemed the determination of legislative candidates based on number unconstitutional. Based on Article 214 Paragraph (b) Law No. 10 of 2008, it is said that when the total of candidates that get at least 30% from Bilangan Pembagi Pemilihan (“BPP”) are more than the chair obtained by political party, the chair will be given to the candidate with the smaller number on the list. It goes the same way when two candidates get the same number of votes or when there is no candidate who gets 30% from BPP. Political party is responsible for the number each candidate gets. The system is deemed unconstitutional by The Constitutional Court because it is against the principle of democracy. It is said so because a candidate can get elected even though they did not get the most votes.^[21]

The Constitutional Court stated that people’s choice should be the one forming the parliament and this can only be done by electing someone with most votes.^[22] Even with the Constitutional Court Decision, not everyone agrees with the outcome. Maria Farida, a constitutional judge, said that The Constitutional Court Assembly should not have grant requests regarding number on the list.^[23] The system which elects candidate with the majority votes would make zipper system useless. As we have mentioned before, the zipper system is a system which puts male and female alternately in the candidate list. This system would prevent female to be positioned in a bigger number on the list. However, without the implementation of Article 214 a-e Law No. 10 of 2008, female candidate would have to get the majority votes to get elected. According to Ranny W. Rumintarto, a Golkar Party Faction^[24], the majority voting system forces female candidates to openly compete with male candidates. This is detrimental to female candidates because they are less competitive than male candidates.

            Moving on, when we look at each year’s election and political party law, there is not much difference when it comes to affirmative action. Quota policy is continuously regulated after the 2004 election and zipper system after the 2009 election. This attempt has not reach its ideal rate.

Affirmative action in Indonesia has been implemented through 2004 until 2019. However, it has yet to bring the expected result. This is caused by some problems. Firstly, the law itself, is also being used against the implementation of affirmative action, besides being its legal basis. Secondly, the implementation of affirmative action in the election and political party only limited to quota and zipper system. When we look at the problems, we can argue that quota policy and zipper system are insufficient in increasing women representation in the parliament.

Political party plays a key role in promoting women in political processes. It is the most crucial connecting link between the state and the society.^[25] As a United Nation Development Programme (“UNDP”) Pacific Office in Fiji Country Director and Head of Pacific Regional Policy and Programme, Bakhodir Burkhanov said, effective political parties should establish and maintain a network branches and links to all parts of society to enable them to communicate and listen to the needs of citizens.^[26] Therefore, the solution to the problem should be specifically addressed to the internal function of the political party.

In order to increase the number of women, the government should set an environment that help promote women’s interests in political party. This can be done in various ways such as establishing women’s sections in political parties, training women candidates, providing financial assistance, creating a forum for women to lobby and discuss policy and offering political parties incentives for promoting women in politics. These ways have been proven to increase women in political party in countries like Sweden and Ethiopia.^[27] This, shall bring a more democratic parliament, where equality starts with the same opportunity for everyone including women.

^[1] Peggy Nash, “Alexandria Ocasio-Cortez is Shaking Up Old Politics With Her New Style”, https://theconversation.com/alexandria-ocasio-cortez-is-shaking-up-old-politics-with-her-new-style-116948, Accessed July on 15^th 2019.

^[2] Ben Feuerherd, “Ocasio-Cortez Blasts ‘Heartbeat’ Abortion Bill, Calls it a ‘Backdoor Ban’”,

https://www.google.com/amp/s/nypost.com/2019/05/08/aoc-blasts-heartbeat-abortion-bill-calls-it-a-backdoor-ban/amp/, Accessed on July 15^th 2019.

^[3]Katadata.co.id, “Jumlah Penduduk Indonesia 2019 Mencapai 267 Juta Jiwa”, https://databoks.katadata.co.id/datapublish/2019/01/04/jumlah-penduduk-indonesia-2019-mencapai-267-juta-jiwa, Accessed on June 27^th 2019.

^[4] Wahidah Zein Br. Siregar, Parliamentary Representation of Women in Indonesia: the Struggle for a Quota, AJWS 11 No. 3, (2005), pg. 41.

^[5] Nancy Levit and Robert R. M. Verchick, Feminist Legal Theory A Primer, 2^nd ed. (New York: New York University Press, 2016), pg. 15-16.

^[6] Hendri Sayuti, Hakikat Affirmative Action dalam Hukum Indonesia (Ikhtiar Pemberdayaan Yang Terpinggirkan), Menara 12 No. 1 ( January – June 2013), pg. 42.

^[7]Hukumonline, “Affirmative Action”, https://www.hukumonline.com/klinik/detail/ulasan/cl6904/affirmative-action/, Accessed on June 19^th 2019.

^[8] Sarah Childs and Mona Lena Krook, Critical Mass Theory and Women’s Political Representation, Political Studies 56 (2008), pg. 726.

^[9]  Sarah Childs and Mona Lena Krook, Critical Mass Theory and Women’s Political Representation, Political Studies 56 (2008), pg. 729.

^[10] Ibid, pg. 730.

^[11]Elizabeth Asiedu, et al., The Effect of Women’s Representation in Parliament and the Passing of Gender Sensitive Policies, [s.l.: s.n., s.a.], pg.1.

^[12]Friski Riana and Ninis Chairunnisa, “Darurat Kekerasan Seksual dan Pembahasan RUU PKS yang Lambat”, https://nasional.tempo.co/read/1149125/darurat-kekerasan-seksual-dan-pembahasan-ruu-pks-yang-lambat, Accessed on July 14^th 2019.

^[13] Jurnal Perempuan, “Maria Farida Indrati: UU Perkawinan Perlu Diuji Secara Konstitusional”,

https://www.jurnalperempuan.org/tokoh-feminis/maria-farida-indrati-uu-perkawinan-perlu-diuji-secara-konstitusional, Accessed on July 14^th 2019.

^[14] Andi Saputra, “Hakim Konstitusi Maria Farida Minta Pernikahan Anak Disetop”, https://news.detik.com/berita/d-3972501/hakim-konstitusi-maria-farida-minta-pernikahan-anak-disetop, Accessed on July 15^th 2019.

^[15] Christoforus Ristianto, “Puskapol UI: Caleg Perempuan Terpilih DPR Didominasi Aktivis Parpol”,  https://nasional.kompas.com/read/2019/05/27/16391061/puskapol-ui-caleg-perempuan-terpilih-dpr-didominasi-aktivis-parpol, Accessed on June 23^rd 2019.

^[16] Indonesia, Law No. 68 of 1958 concerning  Ratification of the Convention on the Political Rights of Women, Article 3.

^[17] Indonesia, Law No. 7 of 1984 concerning Ratification of the Convention On The Elimination of All Forms of Discrimination Against Women, Article 7.

^[18] Indonesia, Law Concerning Political Party, Law Number 31 of 2002, Article 13 Paragraph (3).

^[19] University of Indonesia Political Studies Center, “Kebijakan Peningkatan Keterwakilan Perempuan Pemilu 2004 dan 2009”, https://www.puskapol.ui.ac.id/publikasi_puskapol/kebijakan-peningkatan-keterwakilan-perempuan

-pemilu-2004-dan-2009.html, Accessed on June 19^th 2019.

^[20]Hukumonline, “Affirmative Action”,  https://www.hukumonline.com/klinik/detail/ulasan/cl6904/affirmative-action/, Accessed on June 19^th 2019.

^[21] Irma Latifah Sihite, “Penerapan Affirmative Action Sebagai Upaya Peningkatan Keterwakilan Perempuan Dalam Parlemen Indonesia”, Master’s Thesis University of Indonesia, Jakarta, 2011.

^[22] Ibid.

^[23] Hukumonline, “Affirmative Action” https://www.hukumonline.com/klinik/detail/ulasan/cl6904/affirmative-action/, Accessed on June 19^th 2019.

^[24] Sekretariat Jenderal dan Kepaniteraan Mahkamah Konstitusi Republik Indonesia, Implikasi Putusan Mahkamah Konstitusi Nomor 22-24/PUU-VI/2008 Tentang Perkara Permohonan Pengujian Undang-Undang No. 10 Tahun 2008 Tentang Pemilihan Umum Anggota DPR, DPD, dan DPRD Terhadap Kebijakan Affirmative Action Keterwakilan Perempuan Di DPRD Provinsi dan Kabupaten Se-Daerah Istimewa Yogyakarta, [s.l.: s.n., s.a.], pg. 64.

^[25] Hofmeister, Wilhelm and Karsten Grabow, Political Parties Function and Organization in Democratic Society, (Singapore: 2011), pg. 90.

^[26] United Nations Development Programme, “Political Parties Have Important Role to Play in Democratic Societies” , http://www.pacific.undp.org/content/pacific/en/home/presscenter/pressreleases/2017/09/19/political-parties-have-important-role-to-play-in-democratic-societies-0.html, Accessed on June 28^th 2019.

^[27] International Knowledge Network of Women in Politics, Best Practices Used by Political Parties to Promote Women in Politics, [s.l.: s.n., s.a.], pg. 4.