Key Benefits:
VERDICT
Number 1/SKLN-VI/2008
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecute, and severing The constitutional case in
The first and last level, has dropped the ruling in the case
A dispute over the authority of the State Agency's authority
provided by the Constitution of the Republic of Indonesia of Indonesia 1945, submitted
by:
[1.2] The Supervising Board of Regents of the Regent and Deputy Regent of the County
Morowali, which is represented by:
1. Drs. H. Muhammad Lufti, the work of the Chief Supervising Board of the Regent and Deputy Regent of Morowali Regency period 2007-2012, the address of Kolonodale,
Morowali;
2. Alwi Lahadji, the work of Vice Chairman of the Supervisory Board of the Regent and Vice Regent of Morowali Regency Period 2007-2012, address BMY, Morowali;
3. Baitul Manaf, the work of the Supervising Member of the Regent and Deputy Regent of Morowali Regency from 2007-2012, address Kolonodale, Morowali;
4. Fachry Nurmallo, SH, the work of the Supervising Member of the Regent and Deputy Regent of Morowali County 2007-2012, the address of Kolonodale,
Morowali;
5. Abdul Rahman, the work of the Supervising Member of the Regent and Vice Regent of Morowali Regency 2007-2012, address BMY, Morowali.
Based on a special power letter dated December 12, 2007 gave
the power to Dr. Andi Muhammad Asrun, S.H., M.H., Yan Patris
Binela, S.H., Huisman Brant Toripalu, S.H., and Bachtiar Sitanggang, S.H.
Next is referred to as ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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Against
General Election Commission (KPU) Morowali County, address in BMY, Central Sulawesi province. Further referred to as ----------------------- Please;
[1.3] Have read the applicant's request;
Has heard the applicant's description;
Has checked the proof;
2. SITTING MATTERS
[2.1] In a draw that the applicant has submitted this undated application
December 17, 2007, which is accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) on Thursday date 27
December 2007 and was registered on Friday 4 January 2008
with the No. 1/SKLN-VI/2008 Number, which was corrected and received at Kepaniteraan
The court on Wednesday 6 February 2008, elaboration things as
following:
I. BASE OF LAW 1. Article 24C paragraph (1) amendment of the Constitution of the Republic of the Republic of the Republic
Indonesia in 1945 (subsequently called UUD 1945) stated that
" The Constitutional Court is authorized to prosecute at first level and
the last one The verdict is final to test the legislation
against the Basic Law, severing the institution's authority dispute
The state that its authority is granted by the Basic Law,
severing the party's dissolution politics, and cut off the dispute about
results the general election ".
2. Article 10 paragraph (1) of the letter a Law No. 24 of 2003 on
The Constitutional Court (subsequently called Act No. 24 of 2003)
states that "The Constitutional Court is authorized to prosecute in
first level and Last time the verdict was final to test
legislation against the Republican Basic Law
Indonesia In 1945, severing the state agency's authority dispute
The authority was granted by the Country Basic Law
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The Republic of Indonesia in 1945, severing the dissolution of the political party, and
cut off the results of the dispute about the results of the general election ".
II. THE LEGAL POSITION OF THE DISPUTED PARTY AS THE STATE INSTITUTION
A. 1. That in Section 2 of Verse (1) and (2) of the Rules of the Constitutional Court
No. 08 /PMK/2006 on the Event Guidelines in the Disputed
Constitutional authority of the State Agency, stated as follows:
Verse (1), the State Institute can be the applicant or please
in case of dispute the constitutional authority of the institution
the country is:
a. House of Representatives (DPR);
b. Regional Representative Council (DPRD);
c. The People's Consultative Assembly (MPR);
d. President;
e. The Board of Financial Examiners (BPK);
f. Local Government (Pemda); or
g. Other state agencies whose authority is provided by
Constitution of 1945.
The paragraph (2), the disputed authority as intended
in paragraph (1) is the authority granted or
determined by the 1945 Constitution;
A. 2. That there are 3 (three) groups of state institutions that can be distinguished
as follows:
1. State institutions whose existence is referred to in the 1945 Constitution,
like the Constitutional Court;
2. State institutions whose existence is referred to in the 1945 Constitution and
the authority is not given explicitly in the 1945 Constitution,
such as the Central Bank;
3. State institutions whose existence is not called explicitly
in the 1945 Constitution, but its existence has what experts
called constitutional imporatance, such as the National Commission on Human Rights
Humans and The Attorney General whose existence can be interpreted
implicitly from the 1945 Constitution.
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A. 3. That further, if the Applicant and Please Include The Institution
Another country whose authority is granted by the Basic Law
as paragraph 2 Verse (1) the letter of PMK Number 08 /PMK/2006
that is above, so that If the applicant's authority
is taken, minus, debarred, ignored, and/or harmed by the agency
the other state, is the authority of the Constitutional Court to
inspect and prosecute as set in Article 24C paragraph (1)
UUD 1945? For that to be aware of the Court's consideration
The Constitution in case Number 004 /SKLN-IV/2006 as a reference in
conduct an assessment of the state institution as intended
Article 24C Verse (1) UUD 1945, that is "then which should first
be aware of certain privileges in
Basic and new laws then to what agencies
The authority is granted. "
B. The authority of the Constitutional Court in accordance with Article 24C Clause
(1) of the 1945 Constitution is not against a state institution called
written in the Act. The base, but rather the authority
is disputed. The Constitutional Court has established, that "In
specifies the contents and limits of authority that are objectum litis of
the dispute over the authority of the state institutions, the Court is not only sole-
the eyes Textually interpret the sound of the provisions of the Act
The basis that authorizes the institution of a given state,
but also sees the possibility of implicit authority
It is in the underlying authority and authority
required. (necessary and proper) to perform the underlying authority
that is. Such authority may be loaded
in a statute".
C. That Article 18 of the Constitution of 1945 says that:
The Union State of the Republic of Indonesia is divided over provincial areas
and the province area is divided over districts and cities, which are each
provinces, counties, and The city has an area government that
is set up with legislation.
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The provincial government, county district, and city governs
and takes care of its own affairs of government affairs according to the principle
The autonomy and duties of the host.
Governance province, county county, and city setand take care of its own affairs of government according to autonomous principles and
master duties ".
Governor, Regent, and Mayor respectively as head
provincial, county, and city governments are selected
democratic.
The county government is running its autonomy-wide autonomy, unless
Government affairs by legislation are determined to be
Central Government affairs.
Local Government entitled to establish regional regulations and
Rule other regulations to carry out autonomy and duties
governing.
Susunan and the layout of local governance is set
in laws.
D. That of the provisions of Article 18 of the Constitution of 1945 above, it is set up
some organs of office that can be referred to as regional organs or
regional agencies that are the state institutions that are in the area.
The Institution of the state is the institution of the state. the area was:
1. Provincial Local Government;
2. The Governor as Head of Provincial Regional Government;
3. Provincial Regional Representative Council;
4. County District Government;
5. Bupati as the County Chief;
6. County District Representative Council;
7. Municipal Local Government;
8. Mayor as Regional Head of the City;
9. City Regional Representative Council.
E. That to host democratic elections, the Constitution
1945 has set up in Article 22E Clause (5) which states that,
"The general election is organized by a commission generic elections
is national, fixed, and independent".
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F. That to ensure that the head of the area is chosen through a process
the democratic which is conducted under direct, general, free,
secret, honest, and fair secrets, then in accordance with Article 56 Verse (1) Invite-
Invite Number 32 Years 2004 on Local Government (next
called Law Number 32 of the Year 2004), is set up as follows: " Head of the area
and deputy regional chief selected in one candidate pair
executed democratically based on direct, general, free,
secret, honest and fair".
G. That Section 56 Verse (2) of the Act No. 32 Year 2004
is also contained in Article 4 of Government Regulation No. 6 of the Year
2005 on Election, Unrest, Rapture, and Pit Stop
Regional Head and The Deputy Regional Head (later called PP Number 6
in 2005), among others, mentioned that:
(1) Elections are organized by KPUD
(2) In organizing the election of the Governor and Deputy Governor,
KPUD Province establishes KPUD County/City as part
executor The selection process.
(3) Elections as referred to in Verse (1), exercised
democratic based on direct, common, free, secret, honest
and fair.
H. Further whether the applicant and Please include the state agency
whose existence or authority is granted by the Act
Base, so that if the applicant's authority is taken,
minus, debarred, ignored, and/or harmed by the state agency
another, it is the authority of the Constitutional Court to examine
and prosecute as set forth in Section 24C Clause (1) of the 1945 Constitution?
For that to be aware of the Constitutional Court's consideration in
case Number 004 /SKLN-IV/2006 as a reference in performing
assessment of state agencies as defined by Article 24C paragraph
(1) The Constitution of 1945, "then the first to be noticed is the existence of certain authority in the Basic and only then to the institution of what authority-the authority is granted", (vthe idea of the Constitutional Court's severing of the Number of Constitutional Court). 004 /SKLN-IV/2006 page 88).
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I. The authority of the Constitutional Court in accordance with Article 24C Clause
(1) of the 1945 Constitution is not against a state institution called
written in the Act of Law. The basis, but rather to the authority
is disputed. The Constitutional Court has established
that " In determining the contents and limits of authority
objectum litis a dispute over the authority of the state agency, the Court
not only merely interprets textually the sound of the provisions
Basic law that authorizes the institution
a particular country, but also sees the possibility of an authority-
implicit authority contained in a principal authority and
required privileges (necessary and proper) to run
that particular underlying authority. Such authority
could be contained in a law. " (videa of the Court of Justice
Constitution Number 004 /SKLN-IV/2006 page 90);
J. That to ensure that the regional head of the County and
Province are selected through a democratic process performed based on
direct, general, free, secret, honest and fair, then is
the authority General Election Commission of Morowali County District
as set out in Article 57 of Verse (1), Article 66, Section 101 and Article
102 Law No. 32 Year 2004 juncto Section 9 Verse (3) Act Number 22 Year
2007, Section 80 PP Number 6 2005 to set up and
set out the Election stages of the Regent and the Deputy Regent of the Regency
Morowali, Central Sulawesi Province;
K. That to guarantee the laceration of an election of the regional head and
the deputy head of the democratic region, then the Supervising Committee of the Supervising Committee
Election as mandated by Article 57 Verse (3) Act No. 32
2004, that is that " In supervising the hosting
regional head and regional vice, set up committee
regional election supervisor and deputy head of the area
membership consisted of force of police, attorney general, college high,
press, and public figures ";
L. Under the terms of the laws then the applicant
as Election Supervisor has the duty and authority
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as set out in Section 66 Verse (4) Law Act No. 32 Year 2004
juncto Section 108 Verse (1) PP Number 06 Year 2005 on Election,
The Concern, Rapture, and the Stop of the Regional Head and Vice
The Regional Head is as follows:
a. Supervising all stages of staging area head elections
and regional vice-head;
b. Received reports of violations of the laws
regional headmaster and regional deputy head;
c. Resolve disputes arising in the holding of elections
the regional head and the deputy head of the area;
d. Forward the findings and reports that cannot be completed to
authorized agencies; and
e. Set the coordination relationship between the supervising committee on all
levels.
M. That next the task and authority of the applicant under the terms
the laws may be further described as follows:
1. That the supervising task of the applicant is in
the implementation of the regional electoral process
morowali county is:
a. created a report;
b. make an event event news;
c. forwarded a report to the related instance;
N. That the stages of execution of the Regent's election and the Deputy Regent of County
Morowali [vide of the District Election Commission's decision Morowali
number 282/05/PILKADA/2007 dated June 16, 2007 (Proof P-2)] is
as follows:
1. Preparation, includes: 1. The Drafting Of The Program and Budget Elections of the Regent and Vice Regent
Morowali;
2. Law of Morowali Regency Decision:
a. Drafting (stage, program and Election schedule of the Regent and
Vice Regent);
b. Drafting of PPK Workspace, PPS and KPPS;
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c. Data Suffers and List of Voters for the Regent's Election and
Vice Regent Morowali;
d. Candidacy of Bupati and Vice Regent Morowali; Campaign in
Election of Regents and Vice Regent;
e. The election campaign of the Regent and the Deputy Regent of Morowali;
f. Vote and Counting Votes at the polls in the Election
Bupati and Deputy Regent Morowali;
g. Sound Calculate in PPK and KPU Regency;
h. " Candidate Candidate Candidate Election Regent and Vice
Bupati Morowali;
i. Inauguration and Oath of Oath and Promised;
2. Implementation, which includes: Data Determination and Chooser List, which includes:
Delivery/submission of temporary Voters List by KPU
Morowali regency to PPS through PPK;
Unrest and announcement of the List of Voters Temporary;
Refresh List of Temporary Voters;
Correction and Repair List of Provisional Voters, Seekers
New Voters and List of Voter Fixes and Legalizing
Permanent Voter List;
Register Delivery Temporary Voters and Voters ' List
Repair/Additional and Select List Fixed to KPU
Morowali County via PPK;
Drafting and Delivery of Permanent Voter Lists for PPS,
KPPS and Witness Couple Candidates;
Delivery Of Selector Cards.
3. Candidacy, which includes: a. Announcement of the Candidates for Regent and Vice Regent by KPU
Morowali County and the Nomination Form by
Parpol/Combined Parpol;
b. Registration of Lead Candidate Spouse and Vice Regent by
Parpol/Combined Parpol;
c. Administrative Research Terms Submission Of Candidate Mates and
Candidates Terms;
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d. Research/Notice of Research Results;
e. Completion of the Candidate Partner's completeness/condition;
f. Reresearch of the completeness and remediation of Requirements
The Candidate Partner;
g. Announcement Of Eligible Candidate Couples;
h. Assignment, Order Number, and Partner Announcement
Candidates for Regent and Vice Regent;
4. Printing and Redistributions, which is of: a. Process of procurement administration and distribution of ballots
as well as the tools and completeness of the voting administration and
calculation of votes in PPS and event news forms of events, lists
spouse pairs, and ballots (approximate);
b. Print and distribution list of candidate pairs by KPU
Morowali County and PPK;
c. Distribution and acceptance of ballots as well as tools and
completeness of the voting administration and calculation of votes in
PPS and TPS, event news forms, list of potential spouses, and
ballots.
5. Campaign, which includes: a. Meeting of the General Election participants and the Deputy Regent
Morowali on the campaign implementation;
b. Campaign team notification;
c. Mission and Mission Delivery Campaign;
d. Quiet time.
6. Vote and Sound Calculations, covering:
a. Preparation: 1. Preparation of polling preparation in the area;
2. Formation of KPPS and socialisai;
3. Voter list delivery remains for polling stations and witnesses
the candidate pair;
4. Announcements and notices of places, days, and time
polling at polling stations;
5. A polling station.
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b. Implementation, including: 1. polling and sound calculations at polling stations by KPPS,
as well as the drafting of sound calculation results by PPK
and Morowali County KPU, covering:
a. Drafting and delivery of calculation certification
votes at polling stations to PPK via PPS;
b. Announcement of the calculation results and the delivery of the box
which is still locked and still sealed and contained
event news and certificate of sound calculation by
KPPS to PPK;
c. Preparation and event news delivery and
recapitulation of sound calculations at the subdistrict level
by PPK to the KPU of Morowali County;
d. Event-setting and recapitulation of the calculation results
the county-shortened vote as well as the designation of the candidate pair
elected for the election of the Regent and Vice Regent Morowali;
e. The assignment of the regent and Deputy Regent
Morowali;
f. Authorization for the selected pair of Regent and Vice Regent
Morowali;
g. Appointments and pronunciations/appointment of the Regent's spouse
and Vice Regent Morowali;
O. As provided in Section 66 Clause (1) Act No. 32 of 2004
that " The duties and authority of the KPUD in the holding of elections
the regional head and the deputy head of the area are:
a). plan to host regional head selection and vice
regional head;
b). set the layout of the regional head selection and
the regional vice head according to the set stage in
the laws of the negotiations;
c). coordinate, organize, and control all
stages of regional head selection and vice-head
area;
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d). establish the date and layout of the campaign implementation, as well as
the regional head election ballot and the regional deputy head;
e). Examine the requirements of a political party or a combination of political parties that
propose a candidate;
f). Examines the requirements of the regional head candidate and the regional deputy head
proposed;
g). set a candidate mate who has met the requirements;
h). receive registration and announce the campaign team;
i). announced a campaign fund donation report;
j). sets the recapitulation results of the vote counting and
announces the result of regional head and vice-head selection
area;
k). conduct the evaluation and reporting of the implementation of the head election
area and deputy regional head;
l). exercised duties and other powers governed by the rules
negotiations;
m). set the public accountants ' office to audit campaign funds
and announce the audit results.
P. That is mentioned in Article 1 of the number 3 Act No. 12
In 2003 about the General Election of the Members of the House of Representatives
People, the Regional Representative Council, and the People's Representative Council
Regions (Law Number 12 of 2003) as well as the juncto Invite-
Invite Number 22 Year 2007 on Election Organizers
(Act No. 22 of 2007), that " The General Election Commission
subsequently called the KPU is a national, fixed,
institution and the independent, to organize elections. "
Q. That the authority granted to the KPU by Law Number 12 of the Year
2003 juncto Act No. 22 of 2007 was the derivative authoritative
which was derived from the Constitution of 1945, so that the authority of the KPU
also must be interpreted as the derivative authority of the 1945 Constitution and
hence the KPU must be construed as a state institution.
R. With the construction of the yuridis above, the applicant postulate
that although the applicant's seat and beg as an institution
the country is not textually referred to in the 1945 Constitution, it is called
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in law, that is Law No. 32 of 2004, but
the authority is owned by the applicant, in casu The Supervising Committee
Election of Morowali County of Central Sulawesi Province, implicitly
is the mandated principal authority/ordered
UUD 1945 or at least an authorization that
is required (necessary and proper) to exercise the authority
such subject, i.e. performing the election of the regional head in
democratic.
III. LEGAL FACTS
THAT PLEASE BE THE ORGANIZER OF THE ELECTION OF THE REGENT AND VICE
THE REGENT OF MOROWALI REGENCY SHOULD CARRY OUT THE ELECTION
DEMOCRATIC, HONEST, AND FAIR AS APPROPRIATE TO THE PROVISIONS OF Invite-
invitates, but in fact Please have prevented the execution of duty and authority and reduce and usurpate the authority mandated by the Applicant in the The capacity of the Supervising Committee of the Regent and the Vice Regent of Morowali County. The period of 2007-2012 (later called
Panwas Morowali) during the election process of the Regent and Vice
The Regent of Morowali County in particular in stages of execution, which
is shown through a series of several Please (Morowali County Elections Commission, next called KPU Morowali) in violation of the provisions of vide Act No. 32 Year
2004 juncto Article 108 Verse (1) PP Number 6 Year 2005, that is as follows:
1) Termination of the Prospective Spouse and Vice Regent (1) Please remain in violation of the seven-day deadline, which is the 28th
August 2007, regarding the acceptance of the candidates for the Regent and the Vice
Regent as the Selection of the Regents and the Deputy Regent of the Regency
Morowali Period 2007-2012 (Proof P-3), where Please at
date 29 August 2007 still contact the DPP Party of Peace
Prosper (PDS) to clarify the supported candidate pair
by PDS as the PDS supports two couples Candidate Count and
Vice-Regent on behalf of Drs. Anwar Hafid and Drs. S.U. Marundu,
M. Hum as well as Drs. H. Abd. Malik Syahadat and Waris Kandoro, SH.
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The Begging Act has violated Section 60 Verse (4) and
paragraph (5) Act No. 32 of 2004 juncto Article 47 Verse (4) PP Number
6 Year 2005;
(2) Please have misapplied the legal basis for action
aborts the prospective spouse of the Regent and Deputy Regent of the regency
Morowali on behalf of Drs. H. Abd. Malik Syahadat and Waris
Kandori, SH., by reference Section 59 Verse (2) Law No. 32 Year
2004 juncto Article 56 Verse (2) PP Number 6 of 2005 as
is mentioned in the Letter of KPU Morowali Number
271 /115/KPUM/VIII/2007 dated August 28, 2007 subject
Notices of the Regent Candidate and Vice Regent who are not
are eligible to follow the General Election of the Regent and Vice
Regent of 2007 (Evidence P-4). Article 56 PP Number 6 of 2005 only sets about campaign forms as well as consisting of
letters (a) until letter (i);
(3) KPU Morowali does not make any clarification about the correct or correct
support letter was signed by the Political Party, for example a letter
support from PKP Indonesia to the prospective spouse Ir. H. Ilyas
Mekka, MK., and Artha Mahmud, SH., signed by PKP Chairman
Indonesia and its Secretary, i.e. Drs. Sa'awo Banawa who
was a civil servant in the Office of Camat Petasia (Evidence P-5) in accordance with the Decree of Count Morowali No. 821.3.PD/293-
Cp/B.M. W/ 2006 dated 31 March 2006 TMT 1 April 2006 (Proof P-6). According to the 2004 PP number 37, civil servants (civil servants) were banned from being members of the Parpol. Therefore, the letter
candidacy of the model (B-KWK) signed by Drs. Samawi
Banawa as PKP Secretary of Indonesia Morowali Regency
legally invalid;
2) Selector's List Process (4) Panwas Morowali has written to KPU Morowali on the 9th
October 2007 subject matter Mandatory Dataan (Number 275 /24/Panwas
Pilkada/X/2007), due to registration performed by KPU
Morowali does not comply with the laws, where
List of Provisional Voters (DPS) is compiled and specified by
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PPS does not announce it for 3 (three) consecutive days in order
the public may know it has registered or unregistered
as a voter, so many conscripts are not listed in
The list Fixed Selector (Proof P-7);
3) Campaign (5) During the Panwas Morowali campaign found immediate
violation by the spouse of the Regent/Deputy Regent,
among others the use of government facilities is a service vehicle
wheel four and a marine vessel belonging to the Government of the County Morowali besides
it involves civil servants as a campaign participant. All records
violation of the campaign has been recorded and delivered to
KPU County Morowali via the following letters:
a) Letter Introduction 045.2/41/Panwas Pilkada/X/2007 date
25 October 2007, type of mail sent Notice of
status report Number 03 /SL/Panwas Pilkada/X/2007 dated 19
October 2007 (Proof P-8); b) Introduction to Number 045.2/42/Panwas Pilkada/X/2007 date
October 25 2007, the type of mail sent " Notice of
Number of Report Numbers 04 /SL/Panwas Pilkada/X/2007 date 24
October 2007 (Proof P-9); c) Letter of Introduction 045.2/43/Panwas Pilkada/X/2007 dated
25 October 2007, type of mail " Notice of
Number of Report Numbers 04 /SL/Panwas Pilkada/X/2007 date 24
October 2007 (Proof P-10); d) Letter of Introduction 045.2/44/Panwas Pilkada/X/2007 dated
25 October 2007, type of mail call " Notice of
Number of Report Numbers 04 /SL/Panwas Pilkada/X/2007 date 24
October 2007 (Evidence P-11); All of those reports above were not actionable by the KPU Morowali until the campaign period was completed. Therefore, the KPU Morowali has violated Article 81 Verse (2) letters a and letter b, paragraph
(3) and Verse (4) Act No. 32 of 2004 juncto Article 63 Verse (2)
letter a, b, paragraph (3) and Verse (4) PP Number 6 of 2005. KPU
Morowali did not carry out his duties to put on sanctions
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against real Regent/Deputy Regent pairs have been real
in violation of the campaign's implementation ban.
4) The vote (6) Due to many unregistered conscripts, then on the date
4 November 2007 midnight or a few hours before time
polling, KPU Morowali issued Circular Letter Number
277 /143/KPUM/XI/2007 (Proof P-12), at its core allowing unregistered conscripts In DPT (Fixed Chooser List)
using the option right to use the ID card or letters
captions from the local Head of Village or Lurah. The action of the KPU
The Morowali contradictory Article 69 Verse (1) Act Number
32 Years 2004 juncto Article 16 Verse (1) PP Number 6 Year 2005
juncto Article 18 of the Decree of KPU Morowali Number 6 Year 2007
August 15, 2007. Referring to all such provisions,
then the KPU Morowali does not have a legal basis
to issue the Circular Letter. As a result of it
The Circular Letter is intended, so many unregistered sufferers
in the DPT can give a vote. This is in violation of Article 104 Verse
(2) letter e Law No. 32 Year 2004 juncto Article 91 Verse (2) PP
Number 6 Year 2005. Other issues that arise with respect to
include the Circular Letter, then most KPPS in
Morowali Regency did not acquire the Circular Letter, where
timeout in the Circular Letter of the Circular. (November 4,
2007, at 23:30, Wita) with the election time only
one day apart, on 5 November 2007. As such,
The Circular Letter has generated a loss
constitutional for registered voters who should also be able to
vote on the day of voting, but not
uses the right of choice as a result of a one-day difference from
the Circular Letter with an election time.
The circular letter opens the cheating gap that can
be done mainly in the KPPS environment, PPK and Village Head to
direct the delivery of the Circular Letter only on the candidate region
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A certain Regent/Deputy Regent pair, in which Panwas Morowali
records a number of violations as follows:
(a) Violation at TPS V Kelurahan Bahontula, Petasia's sub-district, the presence of 101 voters The extra-clear additional TPSs,
because in the C6 model letter KWK their names are not listed
the TPSs origin and they can vote only with
showing KTP only (Proof P-13);
(b) Breach at TPS 1 Kelurahan Tofoiso, BMY ' s Subdistrict
Middle (Proof P-14) , where in the news show the results of the vote tally recorded 80 people were unable to use
the right of the vote, when the correct number was 91, so
there was a 1-letter warrant. In the 11th C6 KWK letter
the ballots were voters who moved from other polling stations, but
it was not clear from the TPSs. In a copy of the Permanent Chooser List (DPT)
recorded 452 people who were entitled to vote, while the DPT
received from the PPS (including backup) of 450 letter sheets
votes. As such, there is a reduction in the number of votes
a ballot of two letters sent by PPS;
(c) Violators at the polls in Umbele Village, Greater Earth District,
There is an additional number of five people who are not clear.
TPSthereof, because in C6 KWK is not listed from its TPSs
(Proof P-15);
(d) Violats at polling stations I, Pebotoa Village, Greater Earth District,
in the News Event Certification of the calculation amount of the vote
recorded 40 voters who did not use the right to vote
a number of 41 people, As such a decrease in numbers
voters (Proof P-16);
(e) The offense also occurs at polling stations 2 Village Sakita District BMY
Middle (Proof P-17), where the number of voters remains 511 people and additional voters from the other polling stations 3 people, while the number of papers
votes available 523 consisting of ballots received from
PPS as much as 516 are included in the reserve and
additional 7 ballots from the PPS. Used ballots
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reported 511 unused ballots 5, meaning 7 leaves
invalid ballots as well as a ballot which
invalid also is not clear. The candidate vote Number 3
should be 23 to 33 (C2-KWK), in the C2-KWK format
nor is it signed by the KPPS chairman on behalf of
Mahyudin, S. Ag., voters from other polling stations on behalf of Baco (Model C8-
KWK) is not recorded for the parent number.
(f) Violats at polling stations II Bungintime, Petasia sub-district, where
TPS and KPPS officers did not allow 15 voters who
not entered in the DPT, but based on Mail KPU roundabout
Morowali reserves the right to pencoblosan (Proof P-18);
(g) Violations at polling stations I Village Ungkea, Petasia's subdistrict there are 2
(two) people who do not belong in DPT (Proof P-19), but based on the Circular KPU Morowali's letter is entitled to vote
which the Chief of the Village and KPPS are not allowed to take. performing the
vote, while many non-entry citizens
in the DPT are permitted, which is then based on the Circular Letter
a quo becomes eligible to vote by the Head of the Village and
KPPS;
(h) On The C9-KWK Model TPS 1 Bahodopi, The Introduction Letter
The Event-News Injection Votes and Counts
Sounds at polling stations, using the Governor's selection format and the Vice
Governor, on which it should be the election of the Regent and
Vice Regent (Proof P-20);
5) Recapitulation Vote counting (7) Before the recapitulation of the sound at the Regency level, Panwas
Morowali County has written to KPU Morowali (Number
282 /66/Panwas Pilkada/XI/2007) on November 10, 2007
concerning problem Pilkada, which is the point of request to delay
recapitulation The vote count before the vote was held
re on the troubled TPS-TPS, but the letter was responded
KPU Morowali (Proof P-21).
19
(8) On November 13, 2007, KPU Morowali continued to conduct a meeting of Plenary Votes attended by KPUD Province
Central Sulawesi, Morowali County Muspida, and DPRD Leadership
Regency Morowali, Panwas Morowali, witness the couple's candidates
Regent/Vice Regent Number 1,2,3 and 5. At the plenary meeting
happened "walk out" witness the prospective couple numbered 1.3, and 5 as well
Chairman Panwas Morowali due to some of the objections submitted
by Panwas Morowali and the witness of the number-candidate candidate number 1.3, and 5
not accepted by KPU Morowali (Proof P- 22).
(9) There is the following related calculation of the number of votes based on
recapitulation of the number of votes from the PPK by KPU Morowali at the level
District on 13 November 2007, the following:
-According to the Report The Pilkada violation (Number 12 /LP/Pilkada/
XI/2007), that 107 ballot papers were taken outside polling stations by
KPPS before voting time of November 4, 2007
and then proved 107 papers to be dicoblos outside.
arena TPS 2 Uemalmine, Upper Kolo Village, Subdistrict
Mamorsalato. (Proof P-23);-According to the Pilkada Breach Report delivered by
Leader of the Party of the Party of the Works to Panwas
Mamosalato elections dated November 8, 2007 that
a ballot paper coblosan at polling station II Alas City Village, Subdistrict
Mamorsalato is performed outside of polling stations, i.e. through "TPS Walk"
in the form of plastic bags (Proof P-24);-In accordance with the witness statement of the Prospective Spouse/Vice
Count of the number Type 5, i.e. Sahbudin Zen, tertangal 6 November
2007 that is concerned Only witnessed the calculation
1 ballot box only at the Pleno KPU Meeting of Morowali County,
not 13 ballot boxes based on the number of 13 subdistricts in
Morowali County (Proof P-25);-According to the witness statement spouse of the Regent/Vice
Count of serial number 1 named H. Abudin Halilu, SH that
is concerned not witnessing the opening 12 (twelve) city
votes of 13 (thirteen) city sound results recapitulation rates of PPK se
20
Morawali Kabumultiple in the presence of KPU Morowali on 13
November 2007 (Proof P-26);-In accordance with the witness statement of the prospective spouse of the regent/Vice
Regent of 3 Saleh Gamal, SH., that concerned
not witnessing the opening of 12 (twelve) sound cities from 13
(thirteen) city sound city recapitulation rate PPK se Kabumultiple
Morawali in presence of KPU Morowali on 13 November
2007 (Proof P-27);
10) That based on multiple reports violation of the Pilkada in
top, then Panwas Morowali asks for KPU Morowali not to do
assignment of Regents/Vice Regent elected before being completed
all Pilkada violations in accordance with the perinvite rule-
the applicable invitation (Proof P-28).
11) That in line with the Pilkada violation report as
has described it above, then the People's Representative Council
The Morowali County District has written to Panwas Morowali (Number
720 /273/XI/DPRD/2007) asked Panwas to solve everything
a violation of the laws that occurred in KPU Morowali and in
the execution of Pilkada in society (Proof P-29).
12) That the Recapitulation result of the Sound Count performed
KPU Morowali as it has been poured in " Event News
Recapitulation The General Election Sound Count and Vice
Regent at the Level Regency by the District Electoral Commission
Morowali " dated November 13, 2007 and announced the results
receiving votes each pair of potential Regent/Deputy Bupati
Morowali as follows: (vide Evidence P-22) a. H. Zainal Abidin Ishak and Rolandy Owolu Mardownload, SH,
with a valid voice acquisition of 18.424 (eighteen thousand four hundred and twenty-four) votes, earned the most votes
Four; b. Drs. Anwar Hafid and Drs. S.U. Mardownload, M. Hum, with
valid voice acquisition 26,271 (twenty-six thousand two hundred and seventy-one) votes, acquiring the most First ;
21
c. Drs Datlin TamAgain and Djaidin Rompone, BA, with valid votes 22.116 (twenty-two thousand one hundred sixteen) votes, obtaining the most votes Third ;
d. Ir. H. Muh. Ilyas Mekka, MM and Atha Mahmud, SH, with the legitimate votes of 9.195 (nine thousand one hundred ninety-five), earned the most votes Fourth.
e. Drs. H. Chaerudin Zen, MM and Aminullah, BK, with valid voice acquisition 8034 (eight thousand thirty-four) votes, earned the most votes Fifth.
13) That to prove the truth dalil is in the objection of the applicant then The applicant will include evidence and witnesses
that is strong and legitimate according to the law;
Based on the reasons as the applicant is above,
Please kindly ask the Chairman of the Constitutional Court to decide with an amar.
as follows:
1. Grant the applicant request for the whole;
2. Stating by law that the applicant is a state institution that
is valid and has the authority to conduct the supervision of the execution
The General Election of the Regent and the Vice Regent at Morowali County Level,
Sulawesi Province Center;
3. Declaring the Election Commission of Morowali County has been not
legitimately deprive the constitutional authority of the applicant to perform
oversight of the implementation of the General Election of the Regent and Vice Regent at the Level
Morowali County, Central Sulawesi province;
[2.2] weighed that in the February 14, 2008
trial on the advice of the Judge, the applicant has crossed the petitum number 4 and
number 5 by means of me-renvoi, so that the petitum number 4 and the The number 5 is
deleted;
[2.3] weighed that for corroborate his request control,
The applicant has submitted a written evidence tool that is assigned a P-1 to the
P-28, as follows:
22
P-1 evidence: Meeting of the Supervisors Committee of the Regent Selection and Deputy Regent
Morowali County dated December 11, 2007;
Evidence P-2: Decree of the Election Commission of Morowali County Number
282 /05/PILKADA/2007 dated June 18, 2007;
Proof P-3: Letter of Election Supervising Letter of Regents and Deputy Regent of County
Morowali Period 2007-2012 to the General Election Commission
Morowali County dated 29 August 2007 (Number 06 /Panwas
Pilkada/VIII/2007);
TP-4 proof: KPU Morowali County Letter 271 /115/KPUM/VIII/ 2007
dated August 28, 2007 on Notice of Lead Couple
Regent and Vice Regent who are not eligible to follow
The General Election of the Regent and Vice Bupati Tahun 2007;
Evidence P-5: Letter of support from PKP Indonesia to the prospective spouse Ir. H. Ilyas
Mekka, MK and Artha Mahmud, SH signed by PKP Chairman
Indonesia and its Secretary, i.e. Drs. Samawi Banawa;
Evidence P-6: Decree of Bupati Morowali Number 821.3.PD/293-Cp/B.M. W/ 2006
dated 31 March 2006 TMT April 1, 2006;
Proof P-7: Panwas Morowali had written to KPU Morowali on 9
October 2007 Subject of the Condataan Wajib Choose (Number 275 /24/Panwas
Pilkada/X/ 2007);
Proof P-8: Letter Introduction 045.2/42/Panwas Pilkada/X/2007, dated 25
October 2007 subject Notice of Number of Report Status
03 /SL/Panwas Pilkada/X/2007 dated October 19, 2007;
Proof P-9: Introduction Letter 045.2/42/Panwas Pilkada/X/2007, dated 25
October 2007 on Notice of the Status Report Number
04 /SL/Panwas Pilkada/X/2007 dated October 24, 2007;
Proof P-10: Letter Introduction 045.2/43/Panwas Pilkada/X/2007, date 25
October 2007 regarding Notice of the Status Report Number
04 /SL/Panwas Pilkada/X/2007 dated October 24, 2007;
Proof P-11: Introduction Letter 045.2/44/Panwas Pilkada/X/2007, dated 25
October 2007 on Notice of the Status Report Number
04 /SL/Panwas Pilkada/X/2007 dated October 24, 2007;
Proof P-12: Letter of Circular KPU Morowali Number 277 /143/KPUM/XI/ 2007;
23
Proof of P-13: Election Event and Election Sound Consequences
Regent and Deputy Regent at the polling station, related
violation of polling at polling station V Kelurahan Bahontula, Subdistrict
Petasia, that is 101 additional voters that are unclear from polling stations-
, because in the C6 model letter KWK their names are not registered
their TPSs and they can vote only with
showing the Steel ID;
P-14 proof: Voting Event News and Election Sound Count
Regent and Vice Regent at the polling stations, namely
violation of polling at polling station 1 Kelurahan Tofoiso, Subdistrict
BMY Middle;
Proof P-15: Election Event News and Election Sound Count
Regent and Deputy Regent at the polling stations, namely
Violation of the violations at polling station II Umbele Village, Earth District
Raya;
Proof P-16: Voting Event News and Election Sound Count
Regent and Vice Regent at the polling stations, namely
violation of polling at polling stations I, Pebotoa Village, Earth District
Raya;
Proof P-17: News Selection Event and Selection Sound Event
Regent and Vice Regent at the polling stations, namely
violation of polling at polling station 2 Village Sakita District BMY
Middle;
Proof P-18: Election Event News and Election Sound Count
Regent and Deputy Regent at the polling stations, namely
Violation of the Breach at TPS II Bungintimbe, Petasia sub-district;
Proof P-19: News Event Vote and Election Speaker
Bupati and Deputy Regent at the polling station, related
Violation of the breach at polling station I Village Ungkea, Petasia sub-district;
P-20 evidence: Election Event News and Election Sound Count
Regent and Deputy Regent at Polling Place, ie related
Violation of Offences in Bahodopi Village, Bahodopi Subdistrict;
Proof P-21: Letter of Panwas Regency Morowali has written to KPU Morowali
(Number 282 /66/Panwas Pilkada/XI/2007) dated November 10, 2007;
24
Proof P-22: News Event Recapitulation Results of the General Election Sound
Regent and Vice Regent at the Regency Level by Election Commission
General of Morowali County, dated November 13, 2007;
Evidence P-23: Reports of Pilkada Breach (Number 13 /LP/Panwas Pilkada/
XI/2007);
Proof P-24: Letter Statement from the Prospective Spouse/Deputy Regent
number 5, i.e. Sahbudin Zen tertangal 6 November 2007;
Evidence P-25: Party to Panwas
Election Mamosalato dated November 8, 2007;
Proof P-26: Letter of the spouse of a prospective spouse Regent/Deputy Regent number
ordered by 3, i.e. Saleh Gamal, SH dated 6 December 2007;
Proof P-27: Letter of Panwas Morowali to KPU Morowali dated to 17
November 2007 (Number 282 /91/Panwas Pilkada/XI/2007);
Proof P-28: Newspaper of the People's Representative Council of Morowali County to
Panwas Morowali, dated November 15, 2007 (Number 720 /273/XI/
DPRD/2007);
[2.4] weighed that to shorten this description, all
something that happened at the trial was appointed in the News Event News, and
is an integral part of this disconnect;
3. LEGAL CONSIDERATIONS
[3.1] weighed that the intent and purpose of the applicant's application was
as described above;
[3.2] weighed that there were three legal issues to be
is considered in this request, that is:
a. The Constitutional Court's authority (later called the Court) to
check, prosecute, and cut off a quo;
b. Legal standing (legal standing) supplicant;
c. Subject matter;
25
LEGAL STANDING (LEGAL STANDING) PEMOHON
[3.3] weighed that one of the constitutional powers of the Court
under Article 24C Clause (1) of the Basic Law Republic State
Indonesia In 1945 (later called UUD 1945) was severing the dispute
the authority of the state agency (abbreviated as SKLN) whose authority was granted
by UUD 1945;
[3.4] weighed that Article 61 Act Number 24 Year 2003
about the Constitutional Court (Sheet The Republic of Indonesia in 2003
No. 98, the addition of the Republic of Indonesia State Sheet Number 4316,
subsequently called the MK Act) had determined the matters related to
The SKLN as follows:
a. That the applicant SKLN is a state institution whose authority
is granted by UUD 1945;
b. That the applicant has direct interest to the authority
that is disputed and outlines clearly in his request;
c. That the applicant must decipher the disputed authority;
d. That the applicant must specify which state agencies are
to be PLEASE;
[3.5] In the draw that the applicant is the Supervising Board of the Board of Elections
and the Deputy Regent of the Regency (later called Panwas Pilkada) underlying
there has been a SKLN with the Morowali County General Election Commission
(subsequently called KPUD) as PLEASE with argumentation as
following:
1. That according to the applicant, both Panwas Pilkada as the applicant, nor
KPU of Morowali County (KPUD) as PLEASE, although as
the state institutions are not textually referred to in the 1945 Constitution, but only
are called in Law No. 32 of 2004 (later called the Act
Pemda), the applicant's authority and implicit implicit authorization are
the principal authority mandated by the 1945 Constitution or at least not
is the authority that required (necessary and proper) to
run that underlying authority, i.e. Execute the selection
26
democratically regional head as referred to in Article 18 paragraph
(4) Constitution of 1945 juncto Article 56 Verse (1) Pemda Act;
2. That the Applicant Authority (Panwas Pilkada) is under Article 66 Verse (4)
The Penda juncto Act Section 108 Verse (1) Government Regulation Number 6 of the Year
2005 on Election, Unrest, Rapture, and Pit Stop
The area and the Deputy Head of the Regions are as follows:
a. Supervising all stages of staging area heads and vice
regional heads;
b. Received reports of violation of election law
regional head and regional deputy;
c. Resolve disputes arising in the holding of elections
the regional head and the deputy head of the area;
d. Forward the findings and reports that cannot be completed to
authorized agencies; and
e. Set the coordination relationship between the supervising committee on all
levels;
3. That the Requesting Authority (KPUD) is under Article 66 Verse (1) of the Act
The Pemda is as follows:
a. plan to host regional head selection and deputy head
area;
b. set the way of the implementation of regional and representative elections
the regional head in accordance with the set stages in the rules
negotiations;
c. coordinate, organize, and control all
stages of implementation of regional head elections and regional vice-heads;
d. establish the date and layout of the campaign implementation, as well as
the regional head election ballot and regional deputy head;
e. Examine the requirements of the political party or the combined political party that
proposes a candidate;
f. Examining the requirements of the regional head candidate and the deputy head of the region
proposed;
g. set a candidate mate who has met the requirements;
h. receive registration and announce the campaign team;
i. announced a campaign fund donation report;
27
j. set the recapitulation results of the vote count and announced the results
the regional head selection and the regional deputy head;
k. conduct an evaluation and reporting execution of the regional head election
and the regional deputy head;
l. exercised duties and other powers governed by the rules
negotiations;
m. establish a public accounting office to audit campaign funds and
announce the audit results;
4. That according to the applicant, please have blocked the execution of
the duty and authority, as well as reducing and usurpating the applicant's authority
as the Supervising Board of Election Supervising and Deputy Regent of the regency
Morowali, i.e.:
A. In the designation of the candidate the regent and the deputy regent have broken
the seven-day time limit (Evidence P-3), has misapplied the legal basis
for the act of aborting the candidate spouse (Evidence P-4), and not
perform The related clarification of the correct support letter
is signed a political party (Evidence P-6);
b. In the voter registration process, KPUD (Please) have ignored
the letter of the Panwaslih (applicant) that the registration is pleated
is not in accordance with the laws (Proof P-7);
c. In the campaign, please do not follow up the applicant's letters
regarding the campaign violations committed by the pair
candidates (Evidence P-8, P-9, P-10, and P-11);
d. In a vote, on the grounds of many conscripts that are not
registered, the KPUD publishes a circular letter allowing it to choose which
is not registered using a KTP or a desa/lurah head caption letter
(Proof P-12), so in some polling stations there are many violations of the
sound derailer (Evidence P-13, P-14, P-15, P-16, P-17, P-18, P-18, P-19,
and P-20);
e. In the recapitulation of the vote count, the KPUD has ignored the letter
Panwaslih (applicant) to delay the recapitulation of the vote
(Evidence P-21) and ignoring the applicant's report on the occurrence of
various violations in Pilkada (Evidence P-22, P-23, P-24, P-25, P-26,
P-27, P-28, and P-29);
28
[3.6] weighed that the applicant ' s dalil above,
The court argued as follows:
1. That is true according to Article 18 Clause (4) of the 1945 Constitution of the head of the region
must be elected democratically. However, democratic elections
means not necessarily to be done through the regional elections
directly as it is embraced by the Pemda Act, but also to be done
the election is indirectly by the Regional People's Representative Council
(DPRD) as it is embraced by Act Number 22 of the Year
1999. Both of these ways remain constitutional and democratic, while
unconstitutional is if the head of the area is not elected
democratic is the way of appointment;
2. That the existence of the KPUD and the Panwaslih in the Pilkada is only possible
if the Pilkada is done directly under a statute,
whereas if the Act determines that the Pilkada is done
directly, then the presence of KPUD and Panwaslih in the Pilkada
is not required;
3. That under Article 22E paragraph (5) of the Constitution of 1945, the Election Commission's task
The national, fixed, and independent General is hosting
a general election to elect a member of the DPR, DPD, President and Vice
President, and the DPRD. While the KPUD authority in the Pilkada is not over
the Constitution of the Constitution of 1945, but by the order of the Act juncto Act
No. 22 of 2007 on Election Organizers, so that the KPUD is not
can be qualified as a state institution whose authority is granted
by UUD 1945;
4. That under Article 109 of the Government Regulation No. 6 of 2005,
Panwaslih is a ad hoc institution whose duty ends 30 (thirty)
days after the pronunciation of the Head of State and Deputy Head
Regions, so that Panwaslih cannot be qualified as an institution
country, let alone an institution of state whose authority is granted by the Constitution
1945;
5. That based on the evidence of the written evidence submitted and also the caption
The applicant at the trial, there is no dispute the result of the Pilkada in
the hosting of the Pilkada in Morowali County, so what
29
is regrettable by the applicant is a matter of cooperation and
a less or non-harmonious communication between the Applicant And implore
that has no effect at all with Pilkada's validity in
Morowali County;
6. That since it is already very bright benderang (expressis verbis), both in terms
objectum litis or from subjectum litis unfulfilled terms have
there is a dispute over the authority of the country's institutions which The authority was granted
by the Constitution of 1945, then the Court saw no need to call
Please and other related parties in the trial;
7. That the applicant's request does not meet the provisions of Article 61 of the MK Act,
so that the subject of the plea should not be considered further;
4. KONKLUSI
Based on the entire description above, the Court argued that
The applicant's application is not eligible as intended in
Article 61 of the MK Act, so that the applicant's request is not acceptable (niet
ontvankelijk verklaard);
5. AMAR RULING
By recalling Article 64 Verse (1) Act Number 24 of the Year
2003 on Constitutional Court (Sheet State Of The Republic Of Indonesia
2003 Number 98, Additional Leaf Republic Of Indonesia Number 4316)
Prosecute:
Declaring the applicant is not acceptable (niet ontvankelijk
verklaard).
So it was decided in a Meeting of Judges, by nine
Constitutional Judges on Thursday, March 27, 2008, said 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 the Chairman, H. Abdul Mukthie Fadjar, H. Harjono, Maruarar Siahaan, H. Achmad
Roestandi, H.A.S. Natabaya, I Dewa Gede Palguna, and Soedarsono, respectively-
30
each as a Member with an accompanied by Fadzlun Budi SN, as
Panitera Replace as well as attended by the applicant/its ruler and
Terbeg/its Rulers.
CHAIRMAN,
ttd.
Jimly Asshiddiqie MEMBERS,
ttd.
H. Abdul Mukthie Fadjar
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
PANITERA REPLACEMENT,
ttd.
Fadzlun Budi SN