Test The Material Constitutional Court No. 1 Of 2008

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 1 Tahun 2008

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Microsoft Word-Verdict SKLN 1.08. final read March 28, UR9.50.doc RULING No. 1/SKLN-VI/2008 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and severing the constitutional matters at the level of the first and last, has dropped the verdict in the case of application for a State Agency Authority Disputes those powers provided by the Constitution of the Republic of Indonesia 1945, submitted by the [1.2] the election Supervisory Committee Regent and Vice Regent of the Regency of Morowali, represented by: 1. Drs. h. Muhammad Lufti, the work of the Chairman of the Election Watchdog, the Regent and Vice Regent of Morowali Regency period 2007-2012, Kolonodale, Morowali address; 2. Lahadji Alwi, Deputy Chairman of the Election Watchdog, the Regent and Vice Regent of Morowali Regency period 2007-2012, Morowali, Can address; 3. Baitul Manaf, work of the members of the Electoral Watchdog, the Regent and Vice Regent of Morowali Regency period 2007-2012, Kolonodale, Morowali address; 4. Nurmallo, SH, Fachry jobs Member Trustees Election Regent and Vice Regent of Morowali Regency period 2007-2012, Kolonodale, Morowali address; 5. Abdul Rahman, Member of the election Supervisory job of Regent and Vice Regent of Morowali Regency period 2007-2012, Morowali, Can address. On the basis of a special power of attorney dated December 12, 2007 authorizes Dr. Andi Muhammad Asrun, S.H., M.H., Yan Patris Binela, S.H., Huisman Brant Toripalu, S.H., and Bachtiar Sitanggang, S.H. Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-Appellant;

2 against the Commission of Elections (ELECTION COMMISSION) Morowali Regency, located in Bungku, Central Sulawesi province. Hereinafter referred to as –-–-–-–-–-–-–-–-–-– the respondent; [1.3] have read the statement of the applicant; Have heard a description of the applicant; Have reviewed the evidence; 2. SIT the MATTER [2.1] considering that the applicant has submitted an application dated December 17, 2007, received at the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) on Thursday December 27, 2007 and was registered on Friday January 4, 2008 with the number 1/SKLN-VI/2008, which had been repaired and was accepted in the Court Clerk on Wednesday February 6, 2008 , outlining things as follows: i. the LEGAL BASIS for a PROVISIONAL 1. Article 24C paragraph (1) an amendment to the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution) States that "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution, severing of disputes the State agencies the Authority those powers granted by the Constitution, severing the dissolution of political parties, and hang up the results of the general election results of strife". 2. Article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (hereinafter referred to as LAW Number 24 year 2003) stated that "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution of the Republic of Indonesia in 1945, severing of disputes the State agencies the Authority those powers provided by the Constitution of the Republic of Indonesia 3 Country in 1945 , disconnect the dissolution of political parties, and hang up the results of the general election results of strife ". II. The LEGAL POSITION of the PARTIES to the DISPUTE AS STATE INSTITUTIONS a. 1. That in article 2 paragraph (1) and (2) of the regulations of the Constitutional Court number 08/FMD/2006 Beracara Guidelines in the dispute about the authority of the constitutional Institutions of the State, expressed as follows: subsection (1), State agencies can be the applicant or respondent in the case of a dispute the authority of the constitutional institutions of the State are: a. the Council of representatives (DPR); b. regional representative Council (DPRD); c. the people's Consultative Assembly (MPR); d. the President; e. the Agency Financial Examiner (CPC); f. local governance (local government); or g. other State institutions provided by its Constitution. Subsection (2), disputed Authority referred to in subsection (1) are the powers that are given or prescribed by the Constitution; A. 2. That there are 3 (three) Group of State agencies that can be distinguished as follows, namely: 1. State institutions whose existence is mentioned in the Constitution, such as the Constitutional Court; 2. State institutions whose existence is mentioned in the Constitution and those powers not explicitly granted in the Constitution, such as the Central Bank; 3. State institutions whose existence is not mentioned explicitly in the Constitution, but its existence has what experts called a constitutional imporatance, such as the national human rights Commission and the Attorney General's Office whose existence can be interpreted implicitly from the Constitution.

4 a. 3. That next if the applicant and the respondent to other State agencies including those powers provided by the Constitution as referred to article 2 paragraph (1) Letter g FMD number 08/FMD/2006, so that when the authority owned by the applicant taken, reduced, stymied, ignored, and/or impaired by other State agencies, is the authority of the Constitutional Court to examine and adjudicate as set forth in section 24C subsection (1) of the Constitution? To be noted that the consideration of the Constitutional Court in the case Number 004/SKLN-IV/2006 as a reference in conducting assessment of State institutions as referred to Article 24C paragraph (1) of the Constitution, i.e. "then that should be noted is the first authority-specific authority in the Constitution and then to Institute what authority-the authority is given." B. With based on the understanding, then that becomes the authority of the Constitutional Court referred to Article 24C paragraph (1) of the Constitution is not against State agencies mentioned in the Constitution, but rather authority disputed. The Constitutional Court has held, that "in determining the content and limits of the powers that be objectum litis a dispute the authority of State institutions, the Court not only purely textual misinterpret the sound from the provisions of the Constitution that gives authority to certain State agencies, but also looking at the possibility of the existence of implicit authority-the authority contained in a principal authority as well as the necessary authority (necessary and proper) to run this particular principal authority. The authority-the authority can only contained in a statute ". C. That Article 18 Constitution says that: a unitary State of Republic Indonesia was divided into areas of the province and the province was divided into regencies and cities, which each province, district, and the city had arranged with the local governance Act.

5 the Government of provinces, districts, regions and cities to organize and administer its own affairs Government Affairs according to its own autonomy principle and tasks pembantuan. The Government of provinces, districts, regions and cities to organize and take care of his own Government Affairs according to the principle of autonomy and pembantuan ". Governors, Mayors and Governors, respectively as the head of the regional Government of the province, district, and city of democratically elected. The Government of the region, except the existence of autonomous running the Affairs of Government are determined by law as the Affairs of the Central Government. Local governance has the right to establish local regulations and other regulations to implement the autonomy and pembantuan tasks. The arrangement and organization of the Government Ordinance is set out in the Act. D. That the provisions of article 18 of the Constitution, arranged the existence of some organs which can be referred to as an organ of the area or regional institutions which are the State agencies in the area. Regional institutions that are: 1. The Government of the region of the province; 2. The Governor as the head of the regional Government of the province; 3. Representatives of regional Province; 4. Governance of the District; 5. The Regent as the head of the Regional District; 6. Representatives of the Regional District; 7. the Government of the city; 8. The Mayor as the head of the city's Area; 9. Representatives of the regional cities. E. That to hold a democratic election, the Constitution has been set up in article 22E subsection (5) which States that, "the general election is held by an Electoral Commission that is national, fixed, and independent".


6 f. head to ensure That the area is chosen through a democratic process that is carried out based on the principle of direct, secret, public, free, honest, and fair, then pursuant to section 56 subsection (1) of Act No. 32 of 2004 on local governance (hereinafter referred to as LAW Number 32 year 2004), arranged as follows: "the head of the region and Deputy Head of the area chosen in one pair of candidates was carried out in a democratic way based on the principle of direct free, General, secret, honest and fair. " G. that the material arrangements of article 56 paragraph (2) of LAW Number 32 year 2004 is also contained in article 4 of the Government Regulation number 6 in 2005 about the election, Endorsement, adoption, and the dismissal of the head of the region and Deputy Head of the region (hereinafter referred to as the PP number 6 2005), among others, States that: (1) an election held by the NOVEMBER (2) in the election of Governor and Vice Governor The province set a NOVEMBER 24 NOVEMBER 24, Kabupaten/Kota as part of the implementing stage of the conduct of the election. (3) the election referred to in subsection (1), carried out in a democratic way based on the principle of direct, secret, public, free, honest and fair. H. Further whether the applicant and the respondent including State agencies whose existence or those powers conferred by the basic law, so that when the authority owned by the applicant taken, reduced, stymied, ignored, and/or impaired by other State agencies, is the authority of the Constitutional Court to examine and adjudicate as set forth in section 24C subsection (1) of the Constitution? To be noted that the consideration of the Constitutional Court on the matter Number 004/SKLN-IV/2006 as a reference in conducting assessment of State institutions as referred to Article 24C paragraph (1) of the Constitution, i.e. "then that should be noted is the first authority-specific authority in the Constitution and then to Institute what authority-the authority is given", (vide the ruling of the Constitutional Court Number 004/SKLN-IV/2006 page 88).

7 i. with the rest on the understanding, so that became the authority of the Constitutional Court referred to Article 24C paragraph (1) of the Constitution is not against State agencies mentioned in the Constitution, but rather against the authorities disputed. The Constitutional Court has held that "in determining the content and limits of the powers that be objectum litis a dispute the authority of State institutions, the Court not only purely textual misinterpret the sound from the provisions of the Constitution that gives authority to certain State agencies, but also looking at the possibility of the existence of implicit authority-the authority contained in a principal authority as well as the necessary authority (necessary and proper) to run this particular principal authority. The authority-the authority can only load in an act. " (vide the ruling of the Constitutional Court Number 004/SKLN-IV/2006 page 90); J. that in order to ensure that the head of the environmental area in the District and the province was chosen through a democratic process that is carried out based on the principle of direct, secret, public, free, honest and fair, then it is the authorities of the District Electoral Commission Morowali as set forth in section 57 subsection (1), article 66, article 101 and article 102 of LAW Number 32 year 2004 juncto article 9 paragraph (3) of the ACT number 22 of 2007 , Article 80 PP number 6 in 2005 to set up and scheduled phases of the election of the Regent and Vice Regent Regency Morowali, Central Sulawesi province; K. That to guarantee the implementation of the election of the head of a region and Deputy Head of a democratic area, then an Election Watchdog Committee as mandated by article 57 subsection (3) of LAW Number 32 of 2004, namely that "in overseeing the conduct of the election of the head and Deputy Head of the regional electoral Watchdog Committee, formed the head and Deputy Head of the area whose membership is composed of elements of the police, Prosecutor's Office, the College , press, and public figures "; B. based on the provisions of the legislation then the applicant as Supervisors of election had the duty and the authority of 8 as set forth in article 66 paragraph (4) of the ACT LAW Number 32 year 2004 juncto Article 108 paragraph (1) PP number 06 in 2005 about the election, Endorsement, adoption, and the dismissal of the head of the region and Deputy Head of the area are as follows: a. Supervising all phases of organizing the election of the head of the region and Deputy Head of the region; b. received reports of violations of the election legislation of the head region and Deputy Head of the region; c. Resolve disputes arising in the conduct of the election of the head and Deputy Head of the region; d. forward the findings and reports that cannot be resolved to the establishments authorized; and e. Arrange coordination Oversight Committee relations on all levels. M. that the further duties and authorities of the applicant based on the provisions of the legislation could be further elaborated as follows: 1. That the Applicant carried out surveillance duties in the implementation of the Organization of the electoral process the head of Regency morowali area are: a. make a report; b. making news of the proceedings; c. forward the report to related agencies; N. that the phase of the election of the Regent and Vice Regent of Morowali Regency [vide Decision Morowali District Election Commission Number 282/05/ELECTIONS/2007 dated June 16, 2007 (proof of P – 2)] are as follows: 1. The preparation, include: 1. The preparation of the Program and budget of the election of the Regent and Vice Regent Morowali; 2. Determination of the decisions of the District ELECTION COMMISSION Morowali: a. Drafting (stages, the program and the schedule of the election of the Regent and Vice Regent); b. preparation of Tata Work PPK, PPS and KPPS;

9 c. Data and Update the list of Electors for the election of the Regent and Vice Regent of Morowali; d. the candidacy of the Regent and Vice Regent of Morowali; In the election campaign of the Regent and Vice Regent; e. election campaign the Regent and Vice Regent of Morowali; f. Voting and Counting in the polling stations in the election of the Regent and Vice Regent of Morowali; g. calculation of votes cast in the District ELECTION COMMISSION and PPK; h. Designation of candidate elected to the Election of the Regent and Vice Regent of Morowali; i. the inauguration Oath and promise and pronunciation; 2. Pelaksaanaan, which include: data and Update voters ' list, which includes: Delivery/delivery of temporary voters ' list by P.P.S. Morowali Regency to the ELECTION COMMISSION through PPK; Endorsement and announcement of the provisional voters ' list; Improvements To The Temporary Voters ' List; Corrections and improvements to the Voter Registration List in the interim, New Voters and Voter list of fixes and Validating the list of Voters; Submission of the provisional voters ' list and voters ' list of fixes/Additions Fixed Voter List and to the District ELECTION COMMISSION Morowali through PPK; The preparation and submission of the list of Voters stick to PPS, KPPS and Candidate Witnesses; The Delivery Of Voter Cards. 3. Nomination of, which includes: a. announcement of the Bupati and Vice Regent of Morowali Regency by the ELECTION COMMISSION and Form political parties/candidates by political parties Combined; b. Registration of candidate the Regent and Vice Regent of the Centre by Centre/combined; c. Administrative Research of candidate Submissions Terms and conditions of the candidate;

10 d. Delivery/notification of research results; e. Repair completeness/Terms of candidate; f. Research Re Comprehensiveness and repair of candidate Requirements; g. Announcement of candidate that meets all requirements; h. the determination, the determination of the number Sequence, and the announcement of candidate Regent and Vice-regent; 4. Printing and Distribution, which consists of: a. the Administrative Process of procurement and distribution of ballots as well as tools and administrative completeness of voting and counting at POLLING STATIONS and PPS form news events, a list of candidates, and ballot (estimated); b. printing and distributing a list of candidates by the ELECTION COMMISSION and Morowali Regency PPK; c. the Distribution and receipt of the ballot as well as the tools and the completeness of the administration of the voting and counting in the POLLING STATIONS, and PPS form news events, a list of candidates, and ballot. 5. Campaign, which includes: a. the Encounter between the participants of the election of the Regent and Vice Regent of Morowali on the implementation of the campaign; b. Notification of campaign team; c. Campaign Delivery vision and mission; d. quiet period. 6. Voting and Counting, including: a. preparation: 1. Checking the preparations for voting in the area; 2. Establishment of the KPPS and sosialisai; 3. The submission of the list of electors for the POLLING STATION and witnesses of candidate; 4. Announcement and notification of the place, day, and time of voting at the POLLING STATION; 5. Preparation of the TPS.


11 b. implementation, include: 1. The voting and counting in the polling stations by the KPPS, as well as the preparation of certification of the results of calculation of votes by the PPK and the Regency of Morowali, include: a. Drafting and submission certification a calculation of votes in POLLING STATIONS to via PPS PPK; b. calculation result Announcement and submission of the ballot box that is still locked and is still sealed and contains news of events and a certificate of the results of the calculation of the votes by the KPPS to PPK; c. Preparation and submission of news events and recap the results of counting at the level of sub by PPK to the Morowali District ELECTION COMMISSION; d. preparation of news events and recap of results counting the present counties as well as the determination of candidate elected to the election of the Regent and Vice Regent of Morowali; e. determination of selected partner Regent and Vice Regent of Morowali; f. Endorsement of elected Governors and spouses Vice Regent Morowali; g. inauguration and oath/promise pronunciation pairs the Regent and Vice Regent of Morowali; O. as set forth in article 66 paragraph (1) of LAW Number 32 year 2004 that "the duties and authorities of the Organization of the elections in NOVEMBER the head of the region and Deputy Head of the region are: a). planning the Organization of the election of the head of the region and Deputy Head of the region; b). set the procedures for the implementation of the election of the head of a region and Deputy Head of the region in accordance with the stages provided for in legislation; c). coordinate, organize, and control all stages of the implementation of the election of the head of a region and Deputy Head of the region;

12 d). set the date and procedures for the implementation of the campaign, as well as regional head election ballot and Deputy Head of the region; e) researching the requirements of political parties or political party that proposes a merge candidate; f) researching the requirements of prospective regional head and Deputy Head of the proposed area; g) set a pair of candidates who have met the requirements; h). receive registration and campaign team announced; I). announced the campaign funding reports; j) sets out the results of the vote count and a recap of the announced results of the election of the head of the region and Deputy Head of the region; k). do the evaluation and reporting of the implementation of the election of the head of a region and Deputy Head of the region; l) carry out other duties and authority are regulated by legislation; m) assign public accountant to audit the Fund campaign and announce the results of the audit. Q. That is mentioned in article 1 point 3 of law No. 12 of 2003 on general elections of members of the House of representatives, the regional representative Council, and the regional people's representative Council (Law No. 12 of 2003) as juncto Act No. 22 of 2007 about the organizers of Elections (law number 22 of 2007), that "the Electoral Commission hereinafter the ELECTION COMMISSION is the agency that is national , fixed, and independent, to organise elections. " Q. That the authority given to the ELECTION COMMISSION by LAW No. 12 of 2003 juncto ACT 2007 number 22 is a derivative of authority derived from the Constitution, so that the authority of the ELECTION COMMISSION must also be interpreted as authority on derivatives from the Constitution and therefore should be construed as the State institutions. R. With the juridical construction above, the applicant argued that that even though the position of the applicant and the respondent as State institutions is not generally mentioned in the textual Constitution, but called the 13th in legislation, namely ACT Number 32 Year 2004, however, the authority owned by the applicant, in casu the election Supervisory Committee County of Morowali, Central Sulawesi province was the principal authority implicitly mandated/ordered by the Constitution or at least is the necessary authority (necessary and proper) to run the principal authority , i.e. carry out districts in a democratic election. III. LEGAL facts That the respondent as the organizer of the election of the Regent and Vice Regent of the Regency of Morowali is supposed to carry out the elections in a democratic, honest, and fair as in accordance with the conditions militate-invitation, but in fact the respondent has obstructed the implementation of tasks and authorities as well as reduce and usurp the authority mandated by legislation must be made by the applicant in the capacity of the electoral Watchdog Committee Regent and Vice Regent of Morowali Regency period 2007 – 2012 (hereinafter the Panwas Morowali) during the process of the implementation of the election of the Regent and Vice Regent of Morowali Regency especially in the stages of implementation, which is shown through a series of some of the actions of the respondent (Morowali District Electoral Commission, hereinafter called the Morowali) violates the provisions of the statutory vide ACT Number 32 year 2004 juncto Article 108 paragraph (1) PP number 6 in 2005, namely as follows: 1) the determination of candidate Regent and Vice Regent of (1) the respondent nonetheless violated the seven-day time limit, i.e. the date of August 28, 2007 candidate acceptance, related the Regent and Vice Regent of Election participants as the Regent and Vice Regent of Morowali Regency period 2007-2012 (proof of P-3), in which the respondent on August 29, 2007 still contact the DPP prosperous peace party (PDS) to clarify the candidate supported by the PDS because the PDS candidate supports two Governors and Deputy Governors on behalf of DRS. Richard and Anwar Drs. G.c. Marundu , M. Hum as well as Drs. h. Abd. Creed and Malik Waris Kandoro, SH.

14 the Respondent's action had violated Article 60 paragraph (4) and paragraph (5) of LAW Number 32 year 2004 juncto Article 47 paragraph (4) PP number 6 2005; (2) the respondent had applied the wrong legal basis for actions of candidate dismissed the Regent and Vice Regent of Morowali Regency on behalf of DRS. h. Abd. Creed and Malik Waris Kandori, sh., with reference to Article 59 paragraph (2) of LAW Number 32 year 2004 juncto Article 56 paragraph (2) PP number 6 2005 as mentioned in the Letter FROM Morowali Number 271/115/KPUM/VIII/2007 dated 28 August 2007 subject of candidate notice of the Regent and Vice Regent who did not qualify for the General Election following the Regent and Vice Regent of 2007 (proof of P-4). Article 56 PP number 6 2005 just set about a campaign as well as the forms made up of letters (a) to subparagraph (i); (3) the ELECTION COMMISSION Morowali didn't do the clarification of related about the validity of a letter of support signed by the political parties, for example a letter of support from the PKP Indonesia to candidate IR. h. Ilyas Mekka, MK, and Artha Mahmud, sh., signed by the Chairman of PKP Indonesia and his Secretary, namely Drs. Sa'awo that Banawa, is a CIVIL SERVANT in the Office of the head of Petasia (proof of P-5) in accordance with the decision of the Regents Morowali Number 821.3. PD/293-Cp/B.M. W/2006 dated March 31, 2006 April 1, 2006 'S TMT (proof of P-6). Based on PP Number 37 in 2004, civil servant (PNS) become a member of the Centre. Therefore, a letter nominating model (B-KWK) signed by Drs. Celestial Banawa as Secretary of the PKP Indonesia Morowali Regency legally invalid; 2 Voter Registries) process (4) Panwas Morowali has to write to the Morowali on October 9, 2007 subject Logging Mandatory Select (number 340/24/Panwas Elections/X/2007), because registration is conducted by the ELECTION COMMISSION Morowali does not comply with regulations, in which the voters ' list while (DPS) compiled and codified by 15 PPS did not announce it for 3 (three) days in a row so that the public can know have registered or not registered as a voter , so many mandatory select is not listed in the list of Voters Stay (proof of P-7); 3) campaign (5) during the campaign of Panwas Morowali find direct violations committed by candidate Regent/Vice Regent of, among others, the use of Government facilities in the form of four-wheeled vehicle on duty and a ship belonging to the Morowali Regency Government in addition to involve CIVIL SERVANTS as a participant in the campaign. All records of the campaign violations have been recorded and submitted to the Morowali District ELECTION COMMISSION via the following letters: a) a cover letter Number 045.2/41/Panwas Elections/X/2007 dated 25 October 2007, the types of mail sent notification about the status of your report number 03/SL/Panwas Elections/X/2007 October 19, 2007 (proof of P-8); b) cover letter Number 045.2/42/Panwas Elections/X/2007 dated 25 October 2007, the kind of letter that had been sent a "notice of Status Report number 04/SL/Panwas Elections/X/2007 dated October 24, 2007 (proof of P-9); c) cover letter Number 045.2/43/Panwas Elections/X/2007 dated 25 October 2007, the kind of letter that had been sent a "notice of Status Report number 04/SL/Panwas Elections/X/2007 dated October 24, 2007 (proof of P-10); d) cover letter Number 045.2/44/Panwas Elections/X/2007 dated 25 October 2007, the kind of letter that had been sent a "notice of Status Report number 04/SL/Panwas Elections/X/2007 dated October 24, 2007 (proof of P-11); All reports mentioned above are not followed up by the ELECTION COMMISSION Morowali until the campaign is finished. Therefore, the ELECTION COMMISSION had violated Article 81 Morowali paragraph (2) letter a and letter b, paragraph (3) and paragraph (4) of LAW Number 32 year 2004 juncto Article 63 paragraph (2) letter a, letter b, paragraph (3) and paragraph (4) PP number 6 in 2005. ELECTION COMMISSION Morowali is not doing their job to impose sanctions


16 against candidates for Regent/Vice Regent which significantly had violated a ban on execution of the campaign. 4) Vote (6) because of the many obligatory choose that is not listed, then on November 4, 2007 at midnight or a few hours before the vote, ELECTION COMMISSION Morowali issued circular letter Number 279/144/KPUM/XI/2007 (proof of P-12), in essence allowing mandatory select are not listed in the DPT (Permanent voters ' list) using the right pilihnya by using ID CARD or a certificate from the village chief or local History. The ELECTION COMMISSION action Morowali contrary to Article 69 paragraph (1) of LAW Number 32 year 2004 juncto article 16 paragraph (1) PP number 6 2005 juncto Article 6 Decree the Morowali number 6 of 2007 August 15, 2007. Refers to all these provisions, then thereby the Morowali does not have a legal basis to issue Circulars. Due to the promulgation of Circulars in question, then many mandatory select are not listed in the DPT can vote. This is violation of article 104 paragraph (2) letter e of ACT Number 32 year 2004 juncto Article 91 paragraph (2) PP number 6 in 2005. Another issue that arises with respect to the issuance of the circular letter, then the majority of Morowali Regency KPPS do not earn circular letter, in which the grace period issue Circulars (on 4 November 2007, at 21:00) and the time difference is only one election day-November 5, 2007. Thus, the issuance of Circulars that have led to losses for constitutional registered voters are supposed to also be able to vote on polling day, but cannot use the right pilihnya a result within one day from the promulgation of Circulars by the time of the election. The promulgation of such Circulars rift cheating can be done especially in the environment, PPK KPPS and village chief to direct the delivery of Circulars only on the territory of prospective 17 pairs of Regent/Vice Regent, where a number of offences recorded Morowali Panwas as follows: (a) the offence in TPS V Bahontula Village, Subdistrict Petasia, namely 101 additional voters who do not clear the origin of his POLLING STATION in the letter, because the model C6 KWK their name origin is not registered his POLLING STATIONS and they can vote by simply showing the ID CARD only (proof of P-13); (b) violations at POLLING STATIONS 1 Kelurahan Tofoiso, Kecamatan Bungku Tengah (proof of P-2), where in the news event the results of the vote count recorded 80 people cannot use pilihnya, even though the correct amount was 91 people, thus inflating the voice mail 1. In a letter to KWK-C6 11 ballot is voter who moved from another POLLING STATION, but no clear origin of the TPS. In the copy of the voters ' list (DPT) recorded 452 people are eligible to vote, whereas DPT received from PPS (including reserves) a number of 450 sheets ballots. Thus, there was a reduction in the number of the ballot tally a number 2 ballots sent PPS; (c) violations at POLLING STATIONS II Village, sub-district Umbele of the Earth Kingdom, the presence of an extra number of voters 5 people who do not clear the origin of his POLLING STATION, because in the C6 KWK not listed his TPS origin (proof of P-15); (d) violations in TPS I, Village Pebotoa, district of the Earth Kingdom, in calculating the amount of Certification Event News tally the votes recorded 40 voters who do not use the right pilihnya a number of 41 people, thus happens the reduction of the number of voters (proof of P-16); (e) the Violations also occurred in TPS 2 Kecamatan Bungku Tengah Village Sakita (proof of P-5), where the number of voters still 511 people and additional voters from POLLING STATIONS in other 3 people, while the number of ballots available 523 consisting of ballots received from the PPS as many as 516 already included in reserves and an additional 7 sheets of ballots from PPS. The unused ballot 18 reported 511 unused ballot 5, 7 means a ballot sheet is not clear its existence as well as the invalid ballots were also not clear. The tally of votes the candidate number 3 should be 23 33 (Model C2-KWK), in the format of the C2-KWK are also not signed by Chairman KPPS on behalf of Mahyudin, s. Ag., the POLLING STATIONS voters from other top name Baco (Model C8-KWK) does not note the parent number occupations. (f) Breach in the TPS II Bungintime, Kecamatan Petasia, where officers of the TPS and KPPS does not allow 15 people voters not belonging in the DPT, but based on Circulars Morowali ELECTION COMMISSION has the right to do pencoblosan (proof of P-18); (g) violations at POLLING STATIONS in the village Ungkea, district I Petasia there are 2 (two) people who are not entered in the DPT (proof of P-19), but based on ELECTION COMMISSION Circulars Morowali reserves the right to participate the cast may not be the village head and KPPS do polling, while many citizens not belonging in the DPT is permitted, which is then based on a circular letter quo became eligible for voting by the village head and KPPS; (h) on the Model C9-1 TPS KWK Bahodopi, cover letter Penyampaitan News Event the voting and counting of Votes at the POLLING STATION, use the format of the election of the Governor and Vice Governor, the election is supposed to be on Regent and Vice Regent (proof of P-20); 5) recap of the vote count (7) before the recapitulation of votes is done at the level of district, Morowali Regency, Panwas has to write to the Morowali (number 284/66/Panwas Elections/XI/2007) on November 10, 2007 about the problem of the elections, which is essentially a request to postpone the vote count before the recapitulation was held on voting polling stations are problematic, but the letter addressed FROM Morowali (proof of P-21).

19 (8) on November 13, 2007 the ELECTION COMMISSION carry out Plenary meeting of Morowali fixed vote count that was attended by Central Sulawesi Province NOVEMBER 24, Morowali Regency, Muspida and Chairman of the DPRD, Morowali Regency of Morowali, Panwas candidate witnesses Regent/Vice Regent of the numbers 1, 2, 3 and 5. At the Plenary Meeting took place "walk out" of candidate number witness sort 1.3, and 5 as well as the Chairman of Panwas Morowali because some of the objections raised by Panwas Morowali and witnesses of candidate number sort 1.3, and 5 are not accepted by the ELECTION COMMISSION Morowali (proof of P-22). (9) the following things happen related counting the number of votes based on the recapitulation number of votes from the ELECTION COMMISSION by the PPK in Morowali district level on November 13, 2007, i.e. the following: – Appropriate Reports of violations of the elections (number 12/LP/Elections/XI/2007), 107 ballots that had already been carried out to POLLING STATIONS by the KPPS before polling time on 4 November 2007 and then proved to the 107 ballots outside the POLLING STATION arena dicoblos 2 Uemalingku , The Village Of Upper Mamorsalato, Kecamatan Kolo. (Proof of P-23); -Appropriate Reports of violations of the elections by the leadership of the Sub-District of Golkar to Panwas Election Mamosalato dated November 8, 2007 that pencoblosan ballots in the polling stations II Village and subdistrict Alas, Mamorsalato City is done outside the POLLING STATIONS, i.e. through the "POLLING STATIONS Running" in the form of a plastic bag (proof of P-24); -According to witness statements from Candidates for Regent/Vice Regent of ordinal number 5, namely Sahbudin Zen, tertangal November 6, 2007 that concerned only witnessed the counting of the ballot box only 1 at the plenary meeting of the Regency of Morowali, not 13 ballot box based on the number of Morowali Regency in 13 (proof of P-25); -In accordance with the statement of candidate witnesses Regent/Vice Regent of ordinal number 1 named h. Abudin Halilu, SH that concerned not witnessed the opening of 12 (twelve) the city sounds from 13 (thirteen) City sound results recapitulating level 20 Kabupatan se Morawali PPK before the ELECTION COMMISSION Morowali on November 13, 2007 (proof of P-26); -In accordance with the statement of candidate witnesses Regent/Vice Regent of ordinal number 3 Saleh Gamal, sh., that question was not witnessed the opening of 12 (twelve) the city sounds from 13 (thirteen) City sound results recapitulating Kabupatan se Morawali PPK level before the ELECTION COMMISSION Morowali on November 13, 2007 (proof of P-27); 10) that based on several reports of violations of the elections, then the Panwas Morowali asked ELECTION COMMISSION Morowali is not doing the assignment candidate for Regent/Vice Regent was elected before the entire Electoral violations are resolved in accordance with the laws applicable invitation-(proof of P-28). 11) That in line with the report of a violation of the elections as already described above, then the House of representatives has been inviting Morowali Regency Regional Panwas Morowali (number 720/276/XI/PARLIAMENT/2007) requested the Panwas resolve any legal violations that occur in the implementation of the elections nor in Morowali in society (proof of P-29). 12) that the results of the recapitulation vote count conducted by the ELECTION COMMISSION as it has poured in Morowali "News Event Recap of the general election vote count the Regent and Vice Regent at the district level by the Morowali District Electoral Commission" dated 13 November 2007 and announced the results of the tally the votes each candidate for Regent/Vice Regent of Morowali as follows: (vide Evidence P-22) a. h. Zainal Abidin Ishak and Rolandy Owolu Marunduh , SH, with the acquisition of valid votes as much as 18,424 (eighteen thousand four hundred and twenty-four) of the vote, gaining the most votes of four; b. Drs. Richard and Anwar Drs. G.c. Marunduh, m. Hum, with a legitimate vote tally 26,271 (twenty-six thousand two hundred seventy-one) of the vote, gaining the most votes first;


21 c. Datlin Tamalagi Drs and Djaidin Rompone, BA, with the acquisition of valid votes 22,116 (twenty-two thousand one hundred and sixteen) of the vote, gaining the third most votes; d. IR. h. Thebecker.com. Ilyas Mekka, MM and Lula Mahmud, SH, with the acquisition of valid votes 9,195 (nine thousand one hundred ninety-five), received the most votes. e. Drs. h. Chaerudin Zen, MM and Aminullah, BK, with the acquisition of valid votes 8034 (eight thousand thirty-four) sound, earned the most votes. 13) that in order to prove the truth of the proposition in mind the applicant then with this Applicant would include evidence and witnesses that are powerful and valid according to the law; Based on the reasons as above describe the Applicant, the applicant please to the Chairman of the Constitutional Court decided with amar as follows: 1. The applicant's application for a Grant in their entirety; 2. Declare by law that the applicant is a legitimate State Agency and has the authority to supervise the implementation of the general election of the Regent and Vice Regent in Morowali Regency Level, Central Sulawesi province; 3. Declare the Morowali District Electoral Commission has unlawfully usurped the constitutional authority of the applicant to perform the supervision of the implementation of the general election of the Regent and Vice Regent in Morowali Regency Level, Central Sulawesi province; [2.2] considering that in proceedings on 14 February 2008 based on the advice of the judge, the applicant had cheeky petitum number 4 and number 5 by way of renvoi, so me-petitum number 4 and number 5 the deleted; [2.3] considering that the propositions to strengthen their petition, the petitioner has submitted written evidence marked P-1 to P-32, as follows: P-1 Evidence 22: Election Supervisory Committee meeting Treatise the Regent and Vice Regent of Morowali Regency, dated December 11, 2007; Proof of P-2: Decision Morowali District Electoral Commission Number 282/05/ELECTIONS/2007 dated 18 June 2007; Evidence of the P-3 Supervisory Committee: election of the Regent and Vice Regent of Morowali Regency period 2007-2012 to the Morowali District Electoral Commission dated August 29, 2007 (number 06/Panwas Elections/VIII/2007); Proof of P-4: Letter FROM Morowali Regency Number 271/115/KPUM/VIII/2007 dated 28 August 2007 subject of candidate notice of the Regent and Vice Regent who did not qualify for the General Election following the Regent and Vice Regent of 2007; Proof of P-5: letters of support from PKP Indonesia to candidate IR. h. Ilyas Mekka, MK and Artha Mahmud, SH was signed by Chairman of PKP Indonesia and his Secretary, namely Drs. Banawa Celestial; Evidence of the P-6: Decision Regent Morowali Number 821.3. PD/293-Cp/B.M. W/2006 dated March 31, 2006 April 1, 2006 'S TMT; Proof of P-7: Panwas Morowali has to write to the Morowali on October 9, 2007 subject Logging Mandatory Select (number 340/24/Panwas Elections/X/2007); Evidence of the P-8: cover letter Number 045.2/42/Panwas Elections/X/2007, dated 25 October 2007 subject to notices of the status report number 03/SL/Panwas Elections/X/2007 October 19, 2007; Evidence of the P-9: cover letter Number 045.2/42/Panwas Elections/X/2007, dated 25 October 2007 subject to notices of the Status Report number 04/SL/Panwas Elections/X/2007 dated 24 October 2007; Proof of P-10: cover letter Number 045.2/43/Panwas Elections/X/2007, dated 25 October 2007 subject to notices of the Status Report number 04/SL/Panwas Elections/X/2007 dated 24 October 2007; Proof of P-11: cover letter Number 045.2/44/Panwas Elections/X/2007, dated 25 October 2007 subject to notices of the Status Report number 04/SL/Panwas Elections/X/2007 dated 24 October 2007; Proof of P-12: circular letter FROM Morowali Number 277/143/KPUM/XI/2007;

23 proof of P-13: news of events of the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims violations at POLLING STATIONS in the village Bahontula, District V Petasia, namely 101 additional voters who do not clear the origin of his POLLING STATION, because in the letter their name KWK C6 model not listed origin of his POLLING STATION and they can vote by simply showing the ID Armor; Evidence of the P-14: News Event the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims violations at POLLING STATIONS 1 Kelurahan Tofoiso, Kecamatan Bungku Tengah; Evidence of the P-15: News Event the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims Violations at POLLING STATIONS II Village, sub-district Umbele Earth Kingdom; Proof of P-16: News Event the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to complaints of violations in TPS I, Village Pebotoa, district of the Earth Kingdom; Proof of P-17: News Event the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims violations at POLLING STATIONS in two villages Sakita Bungku Tengah Sub-district; Evidence of the P-18: News Event the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims Violations at POLLING STATIONS II Bungintimbe, Kecamatan Petasia; Proof of P-19: News of events of the voting and counting of votes the election of the Regent and Vice Regent at the polls, that is related to claims Violations at POLLING STATIONS in the village Ungkea, district I Petasia; Proof of P-20: News Event the voting and counting of Votes the election of the Regent and Vice Regent at the polls, that is related to complaints of violations in the villages of Bahodopi Bahodopi, district; Evidence of the P-21: letters to write to Panwas Morowali Regency Morowali has ELECTION COMMISSION (number 284/66/Panwas Elections/XI/2007) on November 10, 2007;

24 P-Proof 22: News Event Recap of the general election vote count results of the Regent and Vice Regent at the district level by the District Election Commission of Morowali, dated November 13, 2007; P-23: evidence Report violations of Elections (No. 13/LP/Panwas Elections/XI/2007); P-24 the evidence: Affidavit of candidate witness at the Regent/Vice Regent of ordinal number 5, namely Sahbudin Zen tertangal November 6, 2007; Proof of P-25: a letter of direction of the Sub-District of Golkar to Panwas Election Mamosalato dated November 8, 2007; Evidence of the P-26: witness Statement of candidate for Regent/Vice Regent of ordinal number 3, that of Saleh Gamal, SH dated 6 December 2007; Proof of P-27: letter of Panwas Morowali to the Morowali dated November 17, 2007 (number 284/91/Panwas Elections/XI/2007); Evidence of the P-28: House of representatives District Morowali to the Panwas Morowali, dated November 15, 2007 (number 720/273/XI/PARLIAMENT/2007); [2.4] considering that to shorten the description of this ruling, all things that happened in the trial was appointed in the News Events of the trial, and it is a unity that is not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition of the applicant is, as has been described above; [3.2] considering that there are three legal issues that should be considered in this appeal, namely: a. the authority of the Constitutional Court (hereinafter the Court) to inspect, judge, and break the petition a quo; b. the position of the law (legal standing) Applicant; c. subject matter of the petition;

25 the COURT'S AUTHORITY and the POSITION of the LAW (LEGAL STANDING) the APPLICANT [3.3] considering that one of the Court's constitutional authority under article 24C paragraph (1) of the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution) is to disconnect the dispute the authority of State institutions (abbreviated SKLN) that those powers given by the Constitution; [3.4] considering that Article 61 Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316, hereinafter referred to as the ACT of CONSTITUTIONAL COURT) has determined the things pertaining to the SKLN as follows: a. that the applicant is a State institution SKLN those powers granted by the Constitution; b. that the applicant had a direct interest toward authority is disputed and outlines clearly in their petition; c. that the applicant should outline the authority is disputed; d. that the applicant must mention clearly state institutions which became the respondent; [3.5] considering that the applicant's Election Watchdog Committee namely, the Regent and Vice Regent of the County (hereinafter the Panwas Elections) has been postulated to occur SKLN with Morowali District Electoral Commission (hereinafter called NOVEMBER) as Respondent with arguments as follows: 1. That, according to the applicant, whether Panwas Elections as the applicants, as well as the Regency Morowali (NOVEMBER) as a respondent, although as State institutions is not generally mentioned in the textual Constitution , but only referred to in the Law Number 32 year 2004 (hereinafter the Partnership ACT), the authority of the applicant and the respondent implicitly is the principal authority mandated by the Constitution or at least is the necessary authority (necessary and proper) to run the principal authority, i.e. the carrying out of election


26 head of democratically area referred to in Article 18 paragraph (4) Constitution juncto Article 56 paragraph (1) of the ACT local government; 2. That the Applicant authority (Panwas Elections) under article 66 Para (4) juncto Article 108 local government ACT subsection (1) the Government Regulation number 6 in 2005 about the election, Endorsement, adoption, and the dismissal of the head of the region and Deputy Head of the area are as follows: a. Supervising all phases of organizing the regional head and Deputy Head of the region; b. received reports of violations of the election legislation of the head region and Deputy Head of the region; c. Resolve disputes arising in the conduct of the election of the head and Deputy Head of the region; d. forward the findings and reports that cannot be resolved to the establishments authorized; and e. Arrange relationship coordination antarpanitia supervision at all levels; 3. That the authority of the respondent (NOVEMBER 24) under article 66 paragraph (1) of the local government ACT are as follows: a. planning the conduct of the election of the head of a region and Deputy Head of the region; b. establish procedures for election she was the head of the region and Deputy Head of the region in accordance with the stages provided for in legislation; c. coordinating, organizing, and controlling all stages of the implementation of the election of the head of a region and Deputy Head of the region; d. set the date and procedures for the implementation of the campaign, as well as regional head election ballot and Deputy Head of the region; e. examining the terms of a political party or a political party to propose a merge candidate; f. researching the requirements of prospective head region and Deputy Head of the proposed area; g. set a pair of candidates who have met the requirements; h. accept the registration and campaign team announced; i. announced the campaign funding reports;

27 j. sets out the results of a recapitulation of the vote count and announce the results of the election of the head of the region and Deputy Head of the region; k. doing the evaluation and reporting of the implementation of the election of the head of a region and Deputy Head of the region; b. carry out the other tasks and authority are regulated by legislation; d. assign public accountant to audit the Fund campaign and announce the results of the audit; 4. According to the applicant, That the respondent has obstructed the implementation of tasks and powers, as well as reduce and depriving the applicant's authority as the watchdog Committee for the election of the Regent and Vice Regent of the Regency of Morowali, that: a. In the determination of candidate the Regent and Vice Regent has broken the seven-day time limit (proof of P-3), have been wrong to apply the legal basis for actions disqualify prospective couples (proof of P-4), and not do the clarification of related about the validity of a letter of support signed by the political parties (proof of P-6); b. in the voter registration process, NOVEMBER 24 (the respondent) has ignored a letter Panwaslih (applicant) Respondent performed registration that does not comply with the regulations (proof of P-7); c. in the campaign, the respondent did not follow up on letters of the applicant concerning infringement campaign conducted by the prospective partner (proof of P-8, P-12, P-10 and P-11); d. in the vote, citing many mandatory select unregistered, NOVEMBER 24 published circulars which allows mandatory select unregistered using ID CARD or certificate village chief/head (proof of P-12), so that in some POLLING STATIONS took place many violations in the form of inflating votes (proof of P-12, P-14, P-15, P-18, P-19, P-18, P-19, P-20); e. in the recap of the NOVEMBER 24 vote count, have ignored the letter Panwaslih (applicant) to delay counting the recapitulation (proof of P-21) and ignores the applicant's report about the occurrence of violations has been in Elections (proof of P-26, P-19, P-18, P-19, P-26, P-26, P-36, P-29);

28 [3.6] Weigh that against the propositions of the applicant, the Court held as follows: 1. it is true That under article 18 paragraph (4) of the Constitution the head of the area should be democratically elected. However, the election democratically does not always have to be done through the regional head election directly as embraced by the local government ACT, but can also do an indirect election by the regional people's representative Council (DPRD) as adopted by Act No. 22 of 1999. The second way the constitutional and democratic anyway, while unconstitutional was when the head region is not democratically elected, namely by way of appointment; 2. That the existence of the elections in NOVEMBER and Panwaslih is only possible when the election is done directly on the basis of a law, while if the law specifies that the elections are conducted indirectly, then the existence of Panwaslih in NOVEMBER and Elections are not required; 3. That on the basis of Article 22E subsection (5) of the Constitution, the Electoral Commission duties are national, remain independent, and is organizing a general election to choose members of the DPR, DPD, the President and Vice President, and PARLIAMENT. Whereas the authority in NOVEMBER Elections not by order of the Constitution, but on the orders of local government LAW juncto Act No. 22 of 2007 about the Election Organizers, so NOVEMBER cannot be dikualifikasikan as State agencies are those powers granted by the Constitution; 4. That under article 109 Government Regulation number 6 in 2005, Panwaslih is an ad hoc institution whose job ends thirty (30) days after the pronunciation of the oath/promise Regional Head and Deputy Head of the region, so that Panwaslih can not dikualifikasikan as State institutions, especially State agencies that those powers given by the Constitution; 5. That based on the tools of written evidence submitted and also a description of the applicant in the proceedings, there is no dispute the results of the elections in organizing Elections in the District of Morowali, so what 29 questioned by the appellant is more a matter of teamwork and communication is lacking or not between the applicant and the respondent are not matter at all to the validity of the elections in Morowali Regency; 6. That because it was very brightly lit (expressis verbis), both in terms of objectum litis nor in terms of subjectum litis is not met the terms of the dispute has occurred the State agencies the Authority those powers granted by the Constitution, then the Court viewed the no need to call the respondent and other related parties in the proceedings; 7. That the applicant's application does not meet the provisions of article 61 of the ACT the COURT, so that the subject matter of the petition does not need to be considered further; 4. CONCLUSIONS DRAWN based on the whole of the above description, the Court held that the applicant's application does not meet the requirement referred to in Article 61 of the ACT, so that the applicant's plea the COURT unacceptable (niet ontvankelijk verklaard); 5. AMAR VERDICT By Recalling Article 64 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316) Adjudicate: applicant's appeal is unacceptable (niet ontvankelijk verklaard). The case was decided in the meeting of the provisional judges, by nine Judge Constitution on Thursday, 27 March 2008, spoken in the plenary session of the Constitutional Court is open to the public on the day this Friday, March 28, 2008, by us, Jimly Asshiddiqie as Chairman and Member, h. Abdul Mukthie Dawn, h. Harjono, Maruarar Siahaan, h. Achmad Roestandi, H.A.S. Natabaya, I Dewa Gede Palguna, and Soedarsono 30 each, each as a member with accompanied by Budi Fadzlun SN, as Substitute Clerk and attended by Petitioner/Respondent/his power and his authority. Chairman, ttd. Jimly Asshiddiqie members, ttd. H. Abdul Mukthie Dawn ttd. H. Harjono ttd. Maruarar Siahaan ttd. H.m. Laica Marzuki ttd. H. Achmad Roestandi ttd. H.A.S. Natabaya ttd. I Dewa Gede Palguna ttd. Soedarsono CLERKS substitute, ttd. Budi Fadzlun SN