Key Benefits:
F
RULING Number 41/PUU-XII/2014
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters on the level of First and last,
dropping the verdict in the Test case Act Number 5 of the Year
2014 about the Civil Service of the State against the Country Basic Law
The Republic of Indonesia Year 1945, submitted by:
1. Name: Dr. Rahman Hadi, MSi Citizen: Indonesia
Employment: Civil civil servant (pNS)
office: Head of the Secretariat section of the chairman of the DPD RI
address: The path of the Pm VII number 16 RT 004/001,
This teacher, Menteng, Jakarta Central.
2. Name: Dr. Genius Umar, S. Sos; MSi Citizen: Indonesia
Employment: Civil Civil Service (PNS)
Title: Deputy Mayor Pariaman
Address: Al Akbar Mosque Number 5 RT/RW
007/001, Kelurahan MSHOW, "
Ciumbrella, East Jakarta.
3. Name: Empi Muslion, A. P; S. Sos., MT., M. Sc Citizen: Indonesia
Occupation: Civil Servant (PNS)
Office: Head Of The Operational Sub Section Activities
Secretariat Vice Chairman DPD RI
Address: The Path Of True Bunder RT/RW 003/015,
Kelurahan Kebon Melati, Subdistrict
Tanah Abang, Central Jakarta.
4. Name: Rahmat Hollyson Maiza, M. AP Citizen of the Nation: Indonesia
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Work: Civil Servant (PNS)
Title: Kasubbag TU Secretary General DPD RI
Address: Jalan Peaceful RT/RW 001/002 Kelurahan
South Petukangan, Subdistrict
Pesanggrahan, South Jakarta.
5. Name: Dr. Muhadam Labolo Citizen: Indonesia
Employment: Civil Service Officer (pNS)
Post: Lecturer Remains Postgraduate IPDN Cilandak
Address: IIP Campus RT/RW 003/006, Kelurahan
Eastern Cilandak, Subdistrict Sunday Market,
South Jakarta.
6. Name: Dr. Muhammad Mulyadi; AP., MSi Citizen: Indonesia
Employment: Civil Service Officer (pNS)
Post: Functional Researchman Madya Goal. IV/B
Dosen Graduate University
Krisnadwipayana
Address: S. Citanduy IV/111 RT/RW 015/001,
Semper West Kelurahan, Subdistrict
Cilincing, North Jakarta.
7. Name: Sanherif S. Hutagaol, S. Sos., MSi Citizens of the State: Indonesia
Work: Civil Servants (pNS)
Posts: Kasubag Operations and Activities Set.
Chairman of DPD RI
Address: JalanHankam Number 4 RT/RW 009/002,
Ragunan Kelurahan, Market Subdistrict
Sunday, South Jakarta
8. Name: Dr. Sri Sundari, SH., MM. Citizen: Indonesia
Employment: Civil Servlet (PNS)
Title: Head of the Waka Secretariat Section
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Address: Highway Number 1, RT/RW
007/003, Palgunate,
Matraman district, East Jakarta.
In this case according to the Special Power Letter dated April 1, 2014, gave
the power of the to: 1). Sunggul H. Sirait, S. H; 2). Freddy Alex Damanik, S. H; 3). Silas Dutu, M. H; 4). Print, S.H. I; all are Advocate and Legal Consultants in Silas Dutu & F. Alex Damanik Law Office law office, which
address at Graha Codefin (Ex Building Tira) 4th Floor Suite 4-D Road H. R
Rasuna Said Kav.B-3, Jakarta South, acting for and on behalf of the giver
power
Next is called as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The applicant;
Check the evidence of the applicant;
2. SITTING LAWSUIT
[2.1] Ruling that the Petitioners have applied
dated April 3, 2014yang is accepted in the Supreme Court of the Constitutional Court
(subsequently called the Court of Justice) on 3 April 2014 and
has been noted in the Book Registration Book of Humanity with the Nomor41/PUU-
XII/2014 on April 10, 2014, which has been corrected with improvements
requests received at the Court of Justice on 19 May 2014.
which on the point describes the following things as follows:
I. LEGAL STANDING (LEGAL STANDING) THE APPLICANT 1. That this fix is an inseparable part with
the previous applicant ' s request is dated April 3, 2014;
2. That the applicant is a citizen of Indonesia who is a citizen of the
civil servant (State Civil Service) and also as a payer
tax (tax payer)
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3. That the PNS is a profession, since the ASN Act does indeed conceptions and
defines that the PNS is a profession;
4. As the ASN's understanding of the Act
Number 5 of 2014 on ASN, that the ASN was an
profession that stated that, "The next Civil Service of the Nation
(ASN) is abbreviated as ASN. is a profession for civil servants and employees
government with a work agreement working on government agencies".
5. PNS is also a job, as we know almost all
official documents issued by the state bound by the Invite-
Invite such as the Population Tag Card, Drive Permission Letter, Passport,
Document to be nasabah Bank or credit filing documents to
Bank, everything listing that PNS is the kind of work.
6. That according to the applicant, the provisions of Article 119 and Section 123 of the paragraph (3)
Act 5 Number of the Year 2004 on Civil Aparregulated States have
caused the petitioners to lose its rights as citizens
the state, simply because nominating or nominated to occupy
the post of State selected through the direct general election mechanism
as described below:
Article 119 Act No. 5 of 2014 on Civil Aparatur
Country, beeping, " Madya High-led officials and leadership officials
top of the preview that will run for governor and deputy
governor, bupati/mayor, and deputy regent/deputy mayor are required to declare
resignation in writing from the civil servant since enrolling as a candidate".
Section 123 paragraph (3) Act No. 5 of 2014, reads,
"Employee ASN of the PNS who ran for office or was nominated
President and Vice President; chairman, co-chairman, and Board member
Representative People; chairman, vice chairman, and representative of the House of Representatives
Regions; governors and vice governors; bupati/mayor and deputy bupati/deputy
the mayor is obliged to declare the resignation in writing as PNS
since registering as a candidate".
7. That the applicant is a civil servant who is a member of the rank and position
his post in the civil servant will continue to rise which in time will be
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up to the high-leadership position of the madya and top leadership officials
pratama or even more.
8. That the applicant considers his constitutional right to be harmed by
the enactment of Article 119 and Section 123 of Article 123 (3) of the Law No. 5
of 2004 on the Civil Aparatur of the Country: where the base of the footing
the loss The applicant's constitutional rights are governed in Article 51 of the paragraph (1)
Act No. 24 of 2003 of the Constitutional Court
states, "The applicant is a party that considers the right and/or
the constitutional authority of the law. harmed by the enactment of the law,
that is: (a) individual of the Indonesian Citizen, (b) community unity
The customary law of all is still alive and in accordance with the development
The society and principles of the Republic of the Republic of Indonesia are set
in legislation, (c) public and private legal entities, or (d) agencies
states"; and since the Number 006 /PUU-III/2005 and subsequent ruling
, the Court has determined 5 terms of rights loss
constitutionality as referred to in Article 51 of paragraph 51 (1) of the MK Act,
as follows:
A. there must be a right and/or constitutional authority of the applicant
granted by UUD 1945;
b. the rights and/or the constitutional authority is considered
has been harmed by the enactment of the required Act
testing;
c. the rights and/or constitutional authority is
specific and actual, At least one of the candidates is potential that
reasonable reasoning can be certain to occur;
d. there is a causal link (causal verband) between the loss
the hakdan/or constitutional authority with the Act
which is moveed testing; and
e. It is possible that with the request of a request,
the rights and/or constitutional authority postured
will not or no longer occur.
9. That the Constitutional rights of the petitioners, the right to be chosen and right
obtain equal opportunity within the government has been restricted,
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distinguished and excluded from and/or with a citizen group
and/or other professions, by requiring a PNS (thus
including the applicant) to resign since registering as
regional head candidate and member of the DPD. However, the restrictions, the distinction,
and the exception of resigning are not enforced against
citizens, others.
10. That the restrictions, exclusions, and differentiates as implied
in the section/paragraph are required to qualify as
are included in the forms of discrimination.
General Commment (General Commment) Section 18 ICCPR on
nondiscrimination, Article 7, mentions,
"the term" discrimination " as used in Kovenan must
is understood to include distinction, exception, restriction or preference
what puns based on any reason like race, skin color, kind
gender, language, religion, political or other opinion, ascertain
nationality or social, proficiency, proficiency status or otherwise, and
which has the purpose or impact of reducing or eradicating
recognition, enjoyment or use of human rights all rights
human rights and fundamental freedoms for all people, on the basis
equality. "
That the rights and/or constitutional authority is
specific and actual, at least as potential as possible
reasonable reasoning can be certain.
II. NORM ARTICLE 119 AND SECTION 123 VERSE (3) (called "Test Objects" /NOP) IS DISCRIMINATORY TO 11. That is intended by discriminatory treatment in
This plea is discrimination between citizen status in
the civil servant profession if nominating or being nominated to be a State official
is required to step back when registration.
Discrimination is any restriction, harassment, or impossibility that
directly or indirectly based on human differentiation over
the basis of religion, tribe, race, ethnicity, group, group, social status, status
ecomomi, gender, language, political beliefs. which is
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reduction, deviation or removal of recognition, execution
or use of human rights and basic freedoms in
the lives of both individual and collective in the political, economic,
laws, Social, cultural. and other aspects of life [Article 1 paragraph (3)
Act Number 39 of 1999 on human rights].
Following some form of discrimination to the PNS:
PNS discrimination in terms of work relating to the resignation of the civil servant
from a state office to obtain state office, the PNS already exists
rules that govern it. Article 59 paragraph (5) letter g Invite-
Invite Number 12 Year 2008 on the Second Amendment of the Invite-
Invite Number 32 Year 2004 on Local Government, which
states, " The letter of the statement withdrew from office. country to
candidates coming from civil servants, members of the National Army
Indonesia, and member of the Indonesian National Police ". But
in Section 123 of the paragraph (3) of the Act No. 5 of 2014 occurred
the inequities and restrictions of the rights of citizens to which the PNS should
enter the office of the state of PNS are required to step down since registering as
the candidate, whereas a civil servant is a profession or a job for citizens
that is a citizen's right of citizens in the field of getting
jobs.
This is contrary to Law No. 39 of 1999 on
Human Rights , Article 38 says that:
(1) Every citizen, according to talent, prowess, and
ability, is entitled to a job appropriate.
(2) Everyone has the right to freely choose the job he likes
and is entitled to fair employment terms.
(3) Everyone, both men and women who do the job
equal, comparable, equivalent or similar, entitled to wages and terms-
the terms of the agreement equal work.
(4) Everyone, both men and women, in doing the job
commensurate the dignity of its humanity entitled to the wages
that is fair according to its achievement and can be ensnare
the continuity her family life.
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Discrimination of procedures became state officials by the PNS themselves, If the PNS who became a state official as of Article 119 and Article
123 verses (3) they are required to declare resigning in writing
as a civil servant since registering as a candidate, why would a civil servant be
State officials under Article 123 of the paragraph (1) they are not required as well
to step down?
If the reason for the procedure became state official in Section 119 and
Article 123 of the paragraph (3) is due to the electoral system factor,
his election by the people directly through Election, while the post
states in Section 123 of the paragraph (1) do not go through direct elections or
in the process of appointment. Is n' t a state official Article 123
paragraph (1) that the procedure is also through the electoral system? such as
election judge MK, KY, BPK, that is elected by the House, which the House
is a representation of the political party. Both of these electoral methods are the same
recognized in the democratic system. So this led to the
not equal treatment for PNS itself.
Recruitment discriminates to state officials If recruitment to become state officials as Pasal119
and Section 123 of the paragraph (3) is said to be the political party's domain for the reason
the recruitment process by election by the people, therefore the post
of the inidiprohibited state for civil servants, and the consequences of civil civil service are required to declare
resigning in writing as a PNS since registering as the
candidate. The position of state as section 123 (1) is considered
the domain of professionals and career positions. The question
why recruits become state officials according to Article 123 of the paragraph (1)
also exists from political parties? such as for a constitutional judge,
judge KY, BPK, for which there is an element from his Council that is no other than the other. is
a member and or administrator of the political party. Why political parties
could enter the areal that says its own career officials or circles
professionals? and why they could enter the post of state that
The recruitment was not through direct election by the people through the election?
so there was unfair treatment for PNS.
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If the reason for state officials Article 123 (3) is the recruitment factor
through the political party, this argument is also unacceptable because in nature
the current democracy, that channel for office for office. country
to head the area not only through political parties, but there is a line channel
individual, which has nothing to do with the political party. As
Act Number 12 of 2018 on the Second Amendment
Act Number 32 of the Year 2004 on Local Government
Article 59 paragraph (1), regional electoral participant and regional deputy head
is; " a. the spouse of a candidate proposed by a political party or a joint
political party; b. Individual candidate pairs are supported by a number of
people.
Also to be a state official in the legislative field as a Council
The Regional Representative who is also not through the political party but stressed
the capacity and quality of the individual individually. Of course it is
discriminates against and violates the rights of -civil servants as citizens of the country:
the right in advancing itself to fight for its right
collective to build society, nation, and country.
Discrimination and unequal treatment of the PNS profession
The constitutional guarantee that becomes conditions for democracy are
eligibility and the existence of a right to compete in a healthy snatch
support and voice (Robert Dahl). In nomocracy states, the law only
can be established in relation to justice, so that justice should
be understood in the sense of similarity (Aristotle). Important difference
between numerical and proportional similarity, numerical similarity
complies each human as a unit, this is what is understood
regarding the similarity of all citizens is equal before the law,
whereas Proportional similarity gives each person who becomes
his right to the ability, achievement, and so on.
Such a way of view of the principle of justice
is defined as truth (fairness).
The provisions of Article 119 and Section 123 paragraph (3) Act No. 5
2014 other than contrary to the principle of legal certainty, as well
contrary to the principle of the treatment equation (asas uniformity). Asas
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the treatment of treatment with asas of legal certainty is essentially
is the most fundamental and most rooted principle in
a common law awareness (Indroharto, 1994: 163). This principle
intends that in order for the same cases to be treated similarly,
whereas the same non-equal cases are treated as not equal to
the level of displeasure.
In the case of PNS they are required to declare resigning
written as a PNS since registering as a very clear candidate
contrary to the principle of the treatment equation, due to the many jobs
or the existing profession, only the civil profession is required to stand down,
whereas the profession or other work, there is no need to retreat.
Related with common to restate the state office in the republic
this, if the regulated office is certainly the equivalent of the post
anyway. For the PNS is his state office in the bureaucracy, for members
the political party of course His political office in his political party.
In terms of upholding commonality and justice, if the civil servant is requested
withdraw from his own office, it is mandatory for a member or caretaker
political party to step down from office. the organics in his political party.
But why the ASN Act set up for obtaining a state post,
which state office is open public office for the public
and to obtain it based on the principles of fair, equality, and freedom,
why civil servants are required to withdraw from the profession Or the PNSs job?
while for his own state office by the existing Act
has been required to withdraw from his current state office since the nomination.
Why by the ASN Act it has been weighed again by pair of key rights
PNS with Require the civil servant to withdraw from his profession?
But this provision does not apply to any political party member.
For justice and legal equality, if the PNS is obliged to withdraw from
the office and profession, the members of the political party should certainly also withdraw from
The electoral office in the political party and the withdrawal of the party's membership
its politics that he cannot enter since enlisting as
a candidate for state officials as mentioned in Article 123 of the paragraph (3)
In question.
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In equality of equality alone has been discriminated against, it is not
discrimination again but already the observer's rights of citizens, very
ironic, not just the civil office of the civil servant that must retreat, but precisely
the employment rights of citizens as a PNS protected by the 1945 Constitution
which must be forced to be dismissed. This is the form of the zaliman that
is outstanding for civil servants.
12. That such a restriction can be qualified as an act
discrimination.
Article 1 paragraph (3) of Law Number 39 of 1999 on
human rights, mentions:
"Discrimination is any restriction, harassment, or impossibility that
directly or indirectly based on the distinction human over
basic religious, tribal, racial, ethnic, group, group, socio status, status
ecomomi, gender, language, political beliefs. which results
the reduction, deviation or removal of recognition, execution
or the use of human rights and basic freedoms in
the lives of both individual and collective in the political field, economy.
law, social, cultural. and other aspects of life".
13. That is, as well as other professions, such as advocates, notaries, accountants,
and others when it is proposed to be the President and Vice President;
chairman, vice chairman, and member of the House of Representatives; chairman, vice
chairman, and member of the Regional Representative Council; governor and deputy
governor; bupati/mayor and deputy regent/deputy mayor do not withdraw from
his profession since signing up for the positions whose charge is through
general election mechanism as intended above.
14. That the filling of political office through an Election mechanism is the right
the political and constitutional rights of any citizen including the
applicant. In the nature of these rights are the rights of every citizen
the state because every citizen is also entitled to self-development,
improving the quality of life and well-being of the faithful, let alone any citizens
the country is fellow citizen who paid taxes (tax
payer);
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15. That such norm does not apply to the posts of other state officials
as mentioned in Section 123 paragraph (1) of the Law Number
5 Year 2014 on ASN, which mentions:
"The ASN Employee of the PNS is appointed to be chairman, vice chairman, and
Constitutional Court member; chairman, vice chairman and Board member
Financial Examiner; chairman, vice chairman and member of the Judicial Commission;chairman
and the vice chairman of the Commission Corruption eradication; Minister and office
serate minister; chief The representative of the Republic of Indonesia in Foreign Affairs
which is based as an extraordinary and powerful ambassador
temporarily dismissed from his post and not hyleed status
as a PNS".
There should be no different treatment for the civil servants who would
be state officials, if the nai should resign
for reasons of neutrality and professionalism, i.e. PNS cannot be involved
politics practical, then the reason is very unfounded, besides
for not Applied to all state officials.
16. That with Article 119 and Section 123 paragraph (3) of the Act
Number 5 of 2004, requires the applicant to declare
resign as a civil servant since registering as a candidate
as referred to in second The section, in practice
has violated or at least potentially violating the rights
the constitutional of the applicant.
17. That the petitioners, like the citizens of Indonesia in
generally, are entitled to equality in front of the law, including the equation
in front of the law (regime) of the election. Thus the applicant and the PNS/ASN
others are entitled to vote and be selected and entitled to obtain
equal opportunities in government.
a) Discrimination PNS compared to Governor/Wabup,
Regent/Wabup, and the mayor/deputy mayor in the post of office
politics through the electoral mechanism and the politically electoral process
in the House.
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b) PNS discrimination compared to the House, DPD, and DPRD (DPRD) professions
in the filing of political office through the electoral mechanism and
the political electoral process in the House.
c) Discrimination PNS compared to other professions such as advocates,
lawyers and others in the filling of political office through
the electoral mechanism and the politically electoral process in the House.
On the second point, if the PNS will run for chairman, vice
chairman, and member of the Constitutional Court; chairman, vice chairman and member
Board of Financial Examiner; chairman, vice chairman and Commission member
Judicial; chairman and vice chairman of the Corruption Eradication Commission; Minister
and the post of ministerial level; the chief representative of the Republic of Indonesia at
The Foreign Affairs is outstanding as the outstanding ambassador and
full power dismissed while from his post and not
lost status as a civil servant.
From that description, it is clear the difference in the country ' s post-office between
selected and election. However, when noted for the state posting
on the Constitutional Court, the BPK, the Judicial Commission, the KPK is clearly co-opted
the political party that is in charge of the number of membership in charging
the post (mention the The Act governing of
is filling the office in the institution) ... meaning although the filling of the post
that selected is out of a different political intervention with
charging the position of state officials for the President, KDH...but actually
The political intervention is also still viscous in The country's state of the position is
.
It also raises discrimination for civil servants, as it should be
political intervention occurs if the charging of the President and
KDH...through election should use the political party vehicle.
However, Its waste in the selected selectedat the post
MK, BPK, KY, KPK, is clearly still using the Parpol affiliate.
18. That the applicant is either a serving or a non-
not an opportunity to be a top-ranking officer of the madya and the official
top leader, with the required applicant to
declaring resigning. written as a PNS since registering
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as a candidate, thus reducing the constitutional right of
The applicant as a citizen, in this case:
The rights of the profession and the work of the applicant for not loss
status and jobs as post-candidacy PNS, both when
The applicant and other PNS were lost in the Election and post
The petitioners completed the task and/or job as President
and the Vice President; chairman, vice chairman, and member of the House of Representatives
People; chairman, deputy speaker, and members of the Regional Representative Council;
governor and deputy governor; bupati/mayor and deputy bupati/deputy
mayor, the norm has violated the rights to recognition, bail,
protection and a fair legal certainty as well as equal treatment in
before the law (right of legal certainty and equal treatment or non
discriminative treatment) Article 28D paragraph (1) UUD 1945 and the right to
obtain the same opportunities in the governance of Article 28D paragraph
(3) UUD 1945;
19 . That NOP is very clearly at odds with the same rights
both in law and government, the norma quo is also very
discrimination. Sebabnormaa quo only addressed to a civil servant who
served as a high-ranking official of the madya, high-ranking official
a preview that will run for governor and vice governor,
bupati/mayor and vice president It's the mayor. Norm a quo does not apply to
civil servants as other officials, should the norm not
there needs to be, since it does not provide fair treatment for the applicant
which at this time is mostly occupied Posts in his pitch, and
could potentially occupy the high-leadership title of madya, lead official
high pratama;
20. That the a quo norm is also very unfair and discriminatory because it is not
is enforced for all state officials, but only to be
President and Vice President; chairman, vice chairman, and Board member
Representative People; chairmen, vice chairmen, and members of the House of Representatives
Regions; governors and vice governors; bupati/mayor and deputy bupati/deputy
mayor.
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III. ABOUT NEUTRALITY OF THE COUNTRY ' S CIVIL APPARATUS 12. The conception of neutrality is the prevailing norm for the profession of the civil servant
when she runs her profession, the element of neutrality is very influential
with the inherent position and the facility being held. Since the
reform of the PNS has long been neutral, they have been tied with various
sorts of rules and norms about neutrality.
13. That in Article 3 of the Law No. 43 of 1999 on
The State of State is set firmly on neutrality in
government:
a) The civil servant is based as an element of the country's apparatus
duty to provide services to the community
professional, honest, fair and equitable in the hosting of tasks
country, governance and development;
b) In that position and duties, civil servants must neutral from
influence of all groups and political parties as well as non-discriminatory
in providing services to the community;
c) In order to ensure neutrality, civil servants are prohibited from becoming members of the
and/or political party administrators. In violation of the rules
the invitational can then be dropped by a stop
as a PNS [Article 3 of the verse (3) and the General Explanation of the number 6 Invite-
Invite Number 43 Year 1999].
14. As well as the neutrality rules governing the PNS retreat from the post
negeries to get the state office, i.e. in Article 59 of the paragraph (5)
letter of Act No. 12 of 2008 on the Second Amendment
AtasAct Number 32 of 2004 on Local Government,
which stated, "A letter of the statement withdrew from the post of state
bagicalon from the Civil Service, member of the Army
Indonesian Nationalities, and member of the Indonesian National Police ".
15. The Circular Letter of the State Minister of Personnel
SE/08.A/M. PAN/5/ 2005 on the neutrality of civil servants
in the Election of the Chief of Regions set out as follows: For civil servants who
become headers or vice-chief area:
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− is required to make a waiver of the position of the country
on a structural or functional position delivered to a superior
directly to be processed in accordance with the rules of the invite-
invitation;
− is prohibited from using the government budget and/or government
area;
− is prohibited from using the facilities associated with its post;
− is prohibited from involving any other PNS to provide support in
campaign.
16. This is no longer a matter of office whether a public office, organic office
or state office, but about the rights of citizens in this regard
amputated civil rights rights in the field of getting
work (i.e., the work of the civil servant that they already have chosen) (violated
Article 27 of the 1945 Constitution) and the right civil rights in self-realization in
struggle for the rights collectively (Article 28 of the Constitution of 1945).
17. That with the required PNS to declare resigning
since signing up on the posts, specifically allowing
the individual candidate, then against the PNS including the petitioners,
given the opportunity and a different treatment with the other citizens
Indonesia. This is where the applicant feels interested
to test the passages that are being directed to the Constitutional Court.
18. That the issue of neutrality, the concern of the self-running PNS,
in particular in this plea as the head of the area would impact
on the neutrality of the civil servant, then it should be found the best solution for
all parties, It's good for the civil servant to run for it, and it's good
for the people. However, the section and/or the paragraph motted not
reflects that solution, but rather gives birth to a new problem with
through the constitutional rights of the PNS to run for
the head of the area of the individual path, more as a candidate
DPD who is indeed only of the individual candidate, in a way
requires that the candidate from the civil servant to resign from the civil servant in the moment
registration of the candidate. However, this neutrality issue has been disputed
since the candidate of the regional head of the individual line is clearly independent
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and is not partisan, any more DPD candidate who does not exist
ties to the political party.
19. That if it is associated with a civil servant profession that should be neutral, it should be
such as it is, only the neutrality of the civil servant does not have a point of it
with the right of citizens to advance him. The conception of neutrality
is the norm that applies to the profession of the civil servant when he runs
his profession, the element of neutrality is highly influential in the presence of the office
which is attached, the facility is owned, thus this element must be dicopot but
not his job status should be destroyed.
20. That Act goal according to Jeremy Bentham is
giving happiness to every person. This is where the irony is,
that a person professed as a civil servant who wants to acquire
a post as a state official should give up his job rights as
A civil servant to be dislocated that cannot be withdrawn and The entry is returned
if the age exceeds the terms defined by the Act,
while he has not necessarily obtained the position he wants. Whereas
the post was an open public office for the public to which
can be obtained based on the principles of fair, equality, and freedom. The requirements
Article 119 and Section 123 paragraph (3) of the Act a quo are
the pressure for the PNS not to run as state official
mentioned in the section a quo.
21. Allow the petitioner to cite his views of the Court of Justice
Constitution Achmad Sodiki in dissenting opinionagainst the ruling
Constitutional Court Number 4/PUU-VIII/2010. He said
"From the professional side, it is not necessarily a PNS loss to address
issues that are happening in the government in the area compared to
candidates are not PNS".
This The competency of the PNS is one of the elements of the element
A nation's worth of appreciation and given the opportunity to
address the issues that occur in government both at the center and in the
area.
On the side if the state dismiss the civil servant, which is surely a civil servant
who is running or is nominated to be a state official
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as mentioned in section a quo is the PNS that
has sufficient quality, competence and experience
in government, this will cost the country itself because the PNS is
A very large state SDM investment. In the coaching process and
improving quality and capacity of SDM PNS requires a variety of types
education, training, seminars, workshops and so on
consuming sizeable state costs, should the country only because
calls the soul of a civil servant who wants to build its country, the state must
sacrifice so large an investment that has been issued to
an increase in the SDM of its nation ' s children?
22. In the formyl aspect of the drafting of the bill on ASN, after the petitioners
read and study the paper, which is now the applicant
take either in the form softcopy or hardcopy. It turns out in
debate and formulation for the arrangement that civil servants if
running for office or nominated to be their state official is mandatory
declares resigning in writing as a civil servant since
enlist as a candidate, as conditioned in the Article
119 and Section 123 paragraph (3) Act No. 5 of 2014. In
The treatise and debate of the creators of the ASN is not seen
the slightest conception of basic philosophy, theoretical arguments and
the juridical aspect of being the scientific argumentation that could be
is responsible for citizens especially for the civil profession that
the profession must be amputated, despite the real profession and work
protected by the state of Article 27 and Article 28 of the 1945 Constitution.
23. Likewise, in the academic script, there is no one
a sentence that lists the subject's theoretical subject and
the scientific argument of what is the foundation of the foundation that
The civil servant of the civil servant who is a member of the civil servant who is a member of the civil servant who is a member of the nominated for a state official
as section a quo they are required to declare resigning
in writing as a PNS since registering as a candidate.
24. It further strengthened the impression that in the drafting of the Invite-
Invite Number 5 of 2014 on ASN this political factor was stronger
than the scientific academic factor and the main purpose factor in
19
Act creation as said by Jeremy
Bentham that the goal of the Act is to provide
the happiness for each person.
25. That this Act further suppresses the existence of the civil profession as well
confirmed from the Minister of Personnel's statement of the State of Aparatur
in the newspaper Indopos 6 May 2014 which stated " that
decision was over request of the House to increase professionalism
PNS " means this section implies something unsettled
between the House and the government, it indirectly implies
that this Act is discredited. hurry and sarat with the charge
that is not fairness.
IV. PETITUM Based on the items described above and the attached proofs
with this the petitioners pledging the Honorable Assembly of the Constitution
in order to please give the verdict as follows:
1. Grant the Applicant for the whole;
2. Declaring Section 119 and Section 123 of the paragraph (3) of the Law No. 5
of the State Civil Service in conflict with Article 27
paragraph (1) and paragraph (2), Section 28C paragraph (1), Section 28D paragraph (1), and paragraph (3),
Article 28I of the paragraph (1), and paragraph (2) of UUD 1945;
3. Stating Article 119 and Section 123 of Article 123 (3) Act No. 5
In 2014 on Civil Aparregulated State has no power
binding laws with all due to its law;
4. Ordering a loading of this Constitutional Court ruling in
Lembara State of the Republic of Indonesia.
If the Assembly of Judges of the Constitution of His Majesty view it necessary and feasible,
then we are begging for the matter aquo can be It was decided to be fair.
(ex aequo et bono).
[2.2] weighed that to prove its control, the applicant
submitted the letter/written evidence given the P-1 evidence to the proof of P-
8Cas follows:
20
1. Proof P-1a: Photocopy of a resident sign card on behalf of Dr. Rahman Hadi,
M. Si;
2. Evidence P-1b: Photocopied a live history list on behalf of Dr. Rahman Hadi, M. Si;
3. Evidence P-1c: Photocopy Decision General Secretary General of the Board
Regional Representative Number 367 of 2010 on the Task Alih
Officials Eselon IIIa and Eselon IVa in the Environment Secretariat
General of the House of Representatives of the Republic of the Republic Indonesia;
4. Proof of P-2a: Photocopy of a resident sign card on the name of Dr. Genius Umar,
S. Sos., M. Si;
5. Evidence P-2b: Photocopy curriculum vitae on the behalf of Dr. Genius Umar, S. Sos.,
M. Si;
6. Evidence P-2c: Photocopy Decision Secretary General Of The House Of Representatives
Area Number 538 Year 2011;
7. Evidence P-3a: Photocopy of a resident sign card on behalf of Empi Muslion, AP.,
S. Sos., MT., MSC;
8. Proof P-3b: Photocopy of biodata on behalf of Empi Muslion, A.P.S., S. Sos., MT.,
M. Sc;
9. Evidence P-3c: Photocopy Decision Secretary General of the House of Representatives
Area Number 328C of 2010 on the Rise of the Rank
Civil Service Officer;
10.Evidence P-4a: Photocopy of the citizen sign card in the name of Rahmat Hollyson
Maiza, MAP;
11.Proof P-4b: Photocopy of biodata on behalf of Dr. Drs. Grace Hollyson Maiza,
M. AP;
12.Evidence P-4c: Photocopy of the Secretary General of the House of Representatives
Area Number 386 of 2011 on the Ascension of the Rank
Civil Service Officer;
13.Evidence P-5a: Photocopy of the card the name of the population on behalf of Muhadam Labolo;
14.Evidence P-5b: Photocopy of the biodata on behalf of Dr. Muhadam Labolo;
15.Evidence P-5c: Photocopy Decision of the Minister of the Interior
811.212.9-29 about the Rapture In Office Functional
Dosen;
21
16.Evidence P-6a: Photocopy of the population card on behalf of Dr. Mohammad
Mulyadi AP., M. SI;
17.Evidence P-6b: Photocopy of the Life History List on behalf of Mohammad Mulyadi;
18.Evidence P-6c: Photocopy Decision Secretary General of the House of Representatives
People Number 1280 /SEKJEN/2013 about the Rapture
Functional office Researcher Madya Gol.IV/B on behalf of Dr.
Mohammad Mulyadi, AP., M. Si., NIP.19760313 199412 1 002,
Pangkat Pembina, Room IV/A;
19.Evidence P-7a: Photocopier of the inhabitants card in the name of Sanherif S Hutagaol,
S. Sos., M. Si;
20.Evidence P-7b: Photocopy of the Life History List of Sanherif S Hutagaol,
S. Sos., M. Si;
21.Evidence P-7c: Photocopy of the Secretary's Decision DPD General Number 160C
about the Ascension of the Civil Servr of the civil servants;
22.Evidence P-8a: Photocopy of the citizen mark card on behalf of Dr. Sri Sundari, S.H.,
M. M;
23.Evidence P-8b: Photocopy of the History of Life on behalf of Dr. Sri Sundari, S.H.,
M. M;
24.Evidence P-8c: Photocopy Decision Secretary General of the House of Representatives
Area Number 591 of 2011 on the Ascension of the rank
civil servants.
[2.3] Is weighing that for shortening the description in this ruling,
everything that happens in the trial refers to the news of the trial event,
which is one unbreakable unity with this ruling;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant ' s plea
is testing the constitutionality of Article 119 and Section 123 of the paragraph (3) Invite-
Invite Number 5 Year 2014 about the Civil Aparregulated State (Sheet) Country
Republic of Indonesia Year 2014 Number 6, Additional Gazette Republic of State
Indonesia No. 5494, subsequently called the ASN Act) which respectively
states:
22
Article 119, " High-led madya and top-ranking official of the preview will run for governor and vice governor, regent/mayor,
and the deputy regent/deputy mayor is mandatory. expressing the resignation in writing
of the PNS since registering as a candidate ".
Article 123 paragraph (3)," ASN Employees of PNS who are nominating or nominated to be President and Vice President; chairman, vice chairman, and member
The House of Representatives; chairman, vice chairman and member of the House of Representatives
Regions; governors and deputy governors; bupati/mayor and deputy bupati/deputy
The mayor is obliged to declare the resignation in writing as a PNS since
register as a candidate ".
against Section 27 paragraph (1) and paragraph (2), Section 28C paragraph (1), Section 28D paragraph (1)
and paragraph (3), Section 28I paragraph (1) and paragraph (2) of the Basic Law
The Republic of Indonesia in 1945, subsequently called UUD 1945, which
stated:
Article 27 paragraph (1) and paragraph (2) (1) All citizens at the same time in the law and
governance and shall uphold the law and governance with
no exceptions;
(2) Each citizen is entitled to a job and a viable livelihood
for humanity
Article 28D paragraph (1) and paragraph (3) (1) Everyone is entitled to recognition, assurance, protection, and certainty
fair laws as well as the same treatment before the law;
(3) Each citizen is entitled to a similar opportunity in
government;
Article 28I paragraph (1) and paragraph (2) (1) The right to life, the right to not be tortured, the right to independence of the mind and
conscience, religious rights, the right to not be enslaved, the right to be recognized
as personal before the law, and the right not to be prosecuted on the basis
The prevailing laws are human rights that ca n' t
minus under any circumstances.
23
(2) Each person is entitled to be free from the discriminatory treatment of
dasaranything and is entitled to be protected against the treatment
that discriminatory fatality is;
[3.2] A draw that before entering the subject of a plea, the Constitutional Court
Constitution (subsequently called the Court), first will
consider the following:
a. The court has the authority to judge a quo;
b. (legal standing) the applicant;
Against both of those above, the Court argued as
following:
The authority of the Court
[3.3] weighing that Article 24C paragraph (1) of the 1945 Constitution states,
" The Constitutional Court is authorized to prosecute at the first and last level
whose verdict is final to test the legislation against the Invite-
Invite Basic, severing the state agency ' s authority dispute which
Its authority is given by the Basic Law, severing dissolution
political parties, and severing disputes about the results of the general election ", Article 10
paragraph (1) letter a Law Number 24 of 2003 on the Court
Constitution as amended by the Act No. 8 Year
2011 on Changes to the Law No. 24 Year 2003 on
Constitutional Court (Indonesian Republic of Indonesia Gazette 2011 number
70, Additional Gazette Republic of Indonesia Number 5226, next
called Act MK) states, " Constitutional Court authorized to prosecute on
The first and last level of which the verdict is final for: a. Testing
legislation against the State Basic Law of the Republic of Indonesia
Year 1945 ", and Article 29 paragraph (1) letter a Law No. 48 Year 2009
on the Power of Justice (Republican Gazette)
2009 Number 157, Additional Gazette of the Republic of Indonesia No. 5076)
stated, "The Constitutional Court of Justice is prosecuting at the first level
and the final verdict is final for: a. Examining the legislation
against the Basic Law of the Republic of Indonesia in 1945 ";
24
[3.4] A draw that the applicant's plea is to test
the constitutionality of Section 119 and Section 123 of the paragraph (3) of the ASN Act against Section 27
paragraph (1) and paragraph (2), Section 28C paragraph (1), Section 28D paragraph (1) and paragraph (3), as well
Article 28I paragraph (1) and paragraph (2) of the 1945 Constitution which is one of the authority
The court, so that the court of justice is prosecuting
a request a quo;
Legal standing (legal standing) The applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act as well as
explanation, the applicant in the Act testing against the Invite-
The Basic Invite is those who consider the rights and/or authority
the constitutional constitution granted by the 1945 Constitution is harmed by the expiring
Act The ones that are being asked are testing, that is:
a. individual (including groups of people who have shared interests)
Indonesian citizens;
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. constitutional rights and/or constitutional authority granted by UUD
1945 resulting from the enactment of the required Act
testing;
[3.6] It is also that regarding the loss of rights and/or authority
constitutionality as referred to in Article 51 of the paragraph (1) MK Act, the Court
since the Number 006 /PUU-III/2005, dated 31 May 2005, and the Decree
Number 11 /PUU-V/2007, dated 20 September 2007 as well as the ruling
25
further has been established about the existence of 5 (five) terms that must be met,
that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific. (specifically) and actual or at least a potential according to
reasonable reasoning can be certain to occur;
d. Due (causal verband) between the rights loss and/or
the constitutional authority is referred to by the Act
which is being moveed to test;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postured is not
will or shall no longer occur;
[3.7] Draws That Based On The Description In
paragraph [3.5] and [3.6] above, further the Court is considering the legal standing (legal standing) the applicant in the application
a quo as follows:
That the applicant Within the country of the United States
as a Country Employee Civil (PNS) feels aggrieved with the article a quo because
the right to be chosen and the right of obtaining equal opportunities in
the government has been curtailed, distinguished and excluded from and/or with
the group of citizens and/or any other profession, by requiring the PNS
to resign since registering as an area head candidate and
member of the DPD. However, the restrictions, differences, and exceptions to
resign are not enforced against other citizens.
Restrictions, exclusions, and distinction as in section a quo
can be qualified as the form of discrimination;
Based on the judgment loss of the applicant's constitutional rights,
according to the Court there is a causal link between (causal verband) between
the loss of the applicant is actual, potential, and according to
26
reasonable reasoning may be confirmed, which is possible
with the request of a request then the constitutional loss of the applicant
will not or no longer occur. As such, the applicant has
a legal position to apply fora quo;
[3.8] It is balanced that by the case the court is prosecuting
plea a quo and the petitioners have a legal position (legal
standing) to apply for a quo, subsequently the Court
considers the subject;
The subject of a plea
[3.9] weighed that the petitioners were pleading for testing.
constitutionality of Article 119 and Section 123 paragraph (3) of the ASN Act on UUD 1945,
for the reasons for the following:
1. Article 123 paragraph (3) of the ASN Act of injustice and restrictions on citizens ' rights
the country in which PNS should enter state, PNS is required to step down
since signing up as a candidate, whereas the PNS is a profession or job
for citizens who are a citizen ' s rights in the field
get a job;
2. Article 119 of the ASN Act mandates the PNS to resign
written as a PNS since registering as a candidate for governor and deputy
governor, regent/mayor, and deputy regent/deputy mayor and Article 123 paragraph
(3) ASN Act which requires PNS to resign in writing
as a civil servant since registering as a candidate for President and Vice
President; chairman, vice chairman, and member of the House of Representatives; chairman,
vice chairman, and Board member Regional Representative, governor and deputy
governor, bupati/mayor and deputy The deputy mayor is very clear
contrary to the principle of the treatment equation, because of the many jobs
or the existing profession, only the profession of the civil servant alone is required to stand down,
whereas the profession or other work, it does not need to step down;
3. Article 119 and Article 123 paragraph (3) of the ASN Act is very contrary to the right
equal status in law and governance and very
discrimination. Because the a quo clause is addressed only to the current civil servant.
27
as the top chief executive of the madya, the top-ranking official of the preview
will run for governor and deputy governor, bupati/mayor
and deputy regent/deputy mayor. The a quo does not apply to any civil service that
serves as another official, should a quo do not need to exist
because it does not provide fair treatment for the applicant who in
currently occupies a lot of the following. The posts in his pitch, and potentially
occupy the high leadership positions of madya, top-ranking officials of the pratama;
Court opinion
[3.10] Draw that before considering the subject matter,
Court need to quote Article 54 of the MK Act stating, " Court
Constitution may request the captions and/or meeting treatises with respect to the requested invocation to the Consultative Assembly
People, House of Representatives, Regional Representative Council, and/or President "
in Conduct a test of the Act In other words, the Court
may request or not ask for the captions and/or meeting treatises that
with respect to the application being examined to the Assembly
The Consultative Assembly, the House of Representatives, the Council of Representatives, the Council of Representatives, the Council of Representatives The Regional Representative,
and/or the President, depends on the urgency and relevance. Because
a legal issue and the a quo plea fairly clearly, the Court cut
a matter of a quo without hearing the description and/or the meeting of the Assembly
The Consultative Assembly, the House of Representatives, the Council of Representatives, the Council of Representatives, the Council of Representatives, the Council of Representatives Regional Representative,
and/or the President;
[3.11] Draw that after checking in with the request
The petitioners, the proof of the letter/writing of the applicant, as contained in
the seat of the Perkara, the Court argues as follows:
[3.12] Draw that the Petitioners in a quo
applying for the constitutionality testing of Article 119 and Section 123 paragraph (3) of the Act
ASN due to the written resignation of PNS since registering as
candidates in conflict with Article 27 of the paragraph (1) and verse (2), Section 28C paragraph (1),
Article 28D paragraph (1) and paragraph (3), Article 28I paragraph (1) and paragraph (2) of the 1945 Constitution with
the reason for the inter-status discrimination of citizens in the profession of the civil servant if
28
nominating or nominated to be a state official is required to resign
self since registering as a candidate;
[3.13] A draw that is related to a dalil plea a quo, along
concerns The terms of the resignation of the civil servant while seeking to run for
occupy the political office whose charge is done through the election (elected
officials), the court has declared its stance on the matter.
Putermination Number 45 /PUU-VIII/2010, dated 1 May 2012, then referred to
back in Putermination Number 12/PUU-XI/2013, dated 9 April 2013. In
both of the decisions of the Court include:
" ...When one has chosen to become a civil servant then he has
binding himself in the rules governing the bureaucracy
government, so at the time registering to be a candidate
in the contested political office through the electoral mechanism
general, in this case as a candidate for the DPD, then the Act
can determine the terms of which they may restrict rights-
its rights as PNS in accordance with the political and state system
apply at this time. From an obligation perspective, the requirement to resign
yourself as the PNS does not have to mean human rights restrictions because
no human rights are reduced in this context, but as
the juridical consequences for his own choice to enter the electoral arena
political office, thus obliged to resign from PNS to comply
laws in the field of government bureaucracy. According to
The court, any perspective from those two perspectives that would
be used in the case of a quo then the obligation to resign
according to the legislation for the PNS that will contest the member elections. DPD
that is not a violation of constitutional rights;
That the a quo plea, substantially, is testing
the constitutionality of the norms of the Law in respect of public office
or the political office that the commissioning mechanism was done through the election
(elected officials). Since the DPD member office is the elected office
through the election then the legal considerations of the Court ruling above are also
apply to a quo.
29
Nevertheless, in addition to the description as affirmed in consideration of the Court's ruling above, the Court is critical to
adding that the position and role of the PNS is important as well as determining
in The government and the construction. That role guarantees
the agility of governance that depends on competency
PNS that is a career based on certain skills and
continuously obtaining coaching, education, gender Principal and measurable, including education education to achieve the level
principal and certain careers, at the point, a civil servant and/or
employee of the ASN are eligible to be an official in the field. a specific title
as defined in the sections tested by the The applicant is
the subject of an ASN employee who has been through a career-level, braid, promotion,
mutation, performance assessment, discipline, competence, and has been tested and experienced
capable of carrying out a public service assignment. provide services to
goods, services, and administrative;
In accordance with the terms of the resignation for TNI members
and the members of the Polri who are about to run in political office or
public office which is the commissioning mechanism done by the election,
The court has stated its stance, as contained in
Putermination Number 67 /PUU-X/2012, dated 15 January 2013. In
considerations of the law of the ruling, the Court among others states:
"That the phrase" resignation letter of resignation from state office " in
Article 59 paragraph (5) of the letter g Act 12/2008, according to the Court of Law. provision
a clear requirement for both TNI members and members of the Polri
will register themselves as a Participant Participant in keeping
the professionalism and neutrality of the TNI and Polri. In order to embody
The staging of Elections in this case is democratic, honest,
and accountable, the election participants, especially those of civil servants,
members of the TNI and Polri members are not allowed to capitalize
posts, authority, and influence attached to him as
As a result of the position he held at the time of the Illumination took place ... "
30
[3.14] Draw, based on legal considerations as contained
in two of the above Court rulings, it has been real that the provisions of the Invite-
Invite that require the resignation of both the PNS and the TNI members and
members of the Polri if concerned are about to run to occupy
a political office or public office whose commissioning mechanism is carried out through
elections, including in this case the nomination becomes head of the area or deputy
the head of the area, according to the Court, is not at odds with the 1945 Constitution.
[3.15] A draw that the ASN Act also contains provisions about
stops while the ASN employees of civil servants are appointed to the official
state namely chairman, vice chairman, and member of the Constitutional Court; chairman, deputy
Chairperson, and member of the Board of Financial Examiner; chairman, vice chairman, and member
Judicial Commission; chairman and vice chairman of the Corruption Eradication Commission; Minister
and the post of ministerial level; Chief Representative of the Republic of Indonesia Outside
The country that is based as an Ambassador Extraordinary and Full-Power.
Article 123 paragraph (1) and paragraph (2) of the ASN Act states that the PNS was appointed
to be the state official as mentioned above being discharged while
of his post during the concerned is still the office in
above So it doesn't lose status as a civil servant. This provision is valid
for posts belonging to appointed officials instead of elected officials,
so that no serta-merta can be likened to a civil servant to
running for office. which are elected officials,
as are postured by the petitioners. Such a distinction is not an
form of discrimination because the character of the two posts is indeed different
thus requiring different treatment as well.
[3.16] Draws That Even Though The Court Argues That
The resignation of a civil servant who was about to run for office as a public official that
The commissioning mechanism carried out through the election is not at odds with
Constitution of 1945, the Court sees the need to consider further
aspects of legal certainty and justice with regard to the question of "when"
The resignation should be done. It is attached to the provisions that
contained in Section 119 and Section 123 paragraph (3) of the ASN Act.
31
Article 119 of the ASN Act states, "High-led officials and officials
High-leader pratama who will run for governor and vice
governor, bupati/mayor, and deputy The deputy mayor must express the written resignation of the civil servant since enlisting as a candidate".
Section 123 paragraph (3) of the ASN Act states," ASN Employees of the PNS who
run for office or be nominated for President and Vice President; chairman,
vice chairman, and member of the House of Representatives; chairman, vice chairman, and
member of the House of Representatives Area; governor and deputy governor; bupati/mayor
and deputy regent/deputy mayor obliged to declare the resignation in writing as a PNS since registering as a candidate".
The question should be considered by the Court in
This relationship is whether fair and at once gives legal certainty if
a civil servant who is about to run for office as a public official
The charge mechanism done through the election must declare
his resignation in writing as a PNS since the time he was register as
candidate? Such questions are important for consideration because the term
"register" is only the initial stage before a person is declared
officially or lawfully as a candidate for election participants after verification
by election organizers.
Thus, in the context of the a quo application, if the terms
the resignation of the PNS are defined as written in the provisions of the Act
ASN above then a civil servant will soon be lost his status as a civil servant
once he signed up as a public official who the mechanism of the charge
is done through the election. Such an improvement or interpretation has indeed been
giving certainty to the law but ignoring the aspect of justice. In other words,
The refinement is only fulfilling a portion of the guarantee of the right
the constitutional stated in Article 28D paragraph (1) of the Constitution of 1945, that is
the facet of its legal certainty. However, Article 28D clause (1) of the Constitution of 1945 expressly
states that the right to be referred to is not merely the right to legal certainty
but the right to a fair legal certainty.
It is said to ignore the aspect of justice, because there is a provision
The act that regulates the substance is similar but contains requirements
32
or unequal treatment even though it is set in the Act
that is different, in this case Act No. 8 of 2015 on
Changes to the Number 1 Act 2015 concerning Redemption
Government Regulation Change Act No. 1 of 2014 on
The election of the Governor, the Regent, and the Mayor into the Act (next
called Act 8/2015). In the Act 8/2015 there is also a provision that
requires the PNS to resign since registering as a head candidate
area or regional deputy, while for members of the House, members of the DPD,
and members of the DPRD are only required to notify its chairman
if it is to run as head of the area or the deputy head of the area. The
thing is set in Article 7 of the s and the letter t UU 8/2015.
The head of the area and the deputy head of the area is the public office or
the political office whose commissioning mechanism is also carried out through the election.
Therefore the terms of the resignation for the PNS who are about to run for the election
being the head of section or vice-head of the region is not at odds with
the Constitution of 1945, as it has been affirmed in the Court's ruling
which has been described in paragraph [3.13] above. However, being
the question is why the same terms do not apply to House members,
DPD members, and members of the DPRD? Therefore, in order to be proportional and for the sake of
meet the demands of fair legal certainty, both the PNS and the members of the House,
members of the DPD, and the members of the DPRD must be equally required
resign if he is to nominate In order to occupy the post
the public or any other political office whose mechanism is done by the election
(elected officials). However, in order to meet the demands of a fair legal certainty
anyway, the resignation was meant not at the time of registering but
at the time concerned had been officially designated as a candidate by
organizer vote by means of making a statement stating
that if it has been formally established by the election organizer
as a candidate in public office or a political office whose mechanism
is done through the election then pertined to make a letter
a statement of resignation that cannot be retracted, which is at the time
registering and valid since it is officially designated as a candidate.
33
[3.17] Draw based on the above consideration, the postulate of the
Applicant along concerns Article 119 and Section 123 of the paragraph (3) of the ASN Act
reasoned according to law for some.
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court of competent court is prosecuting a quo;
[4.2] The petitioners have a legal position. (legal standing) for
applying for a quo;
[4.3] Dalil the applicant is reasonable according to the law for
in part.
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of the Year 2011 on
Change Under Law No. 24 of 2003 on the Court
Constitution (First Gazette of the Republic of Indonesia in 2011 Number 70,
Additional Gazette Republic of Indonesia Number 5226), Act
No. 48 Year 2009 of Rule of Justice (State Sheet
Republic of Indonesia of 2009 No. 157,
The Republic of Indonesia No. 5076).
5. AMAR RULING
Prosecuting,
States:
1. Grant the applicant request for a portion of:
1.1 Section 119 and Section 123 paragraph (3) Act No. 5 Year 2014
on the Civil Service of the State (Indonesian Republic of Indonesia
Year 2014 Number 6, Additional Sheet) Republic of Indonesia
34
Number 5494) in opposition to the State Basic Law
The Republic of Indonesia in 1945 as long as it is not understood, "resignation
self-written as a civil servant should be done not since enlisting
as a candidate but resignation in writing as PNS
done since it was set as a candidate Election of Governor, Regent, and Mayor and Presidential Election/Vice President as well as Election
A Member of the People's Representative Council, the Regional Representative Council, and
Regional People's Representative Council ";
1.2 Section 119 and Section 123 paragraph (3) Act No. 5 Year 2014
on Civil Aparregulated State (State Sheet Indonesia
Year 2014 Number 6, Extra Sheet) Republic of Indonesia
No. 5494) does not have a binding legal force as long as it is not
is defined, " resignation in writing as a PNS should be done
not since registering as a candidate but resignation
written as PNS done since set as a candidate for the election Governor, Regent, and Mayor and Election President/Vice
President as well as Election Members of the House of Representatives, Council
Regional Representative, and Regional People's Representative Council ";
2. Reject the invocation of the Applicant for other than and the rest;
3. Ordering the loading of this ruling in the Republic of Indonesia News
As it should be.
So it was decided in a Meeting of the Judges by
nine Constitutional Judges, Arief Hidayat, as the Chairman. Members,
Anwar Usman, Wahiduddin Adams, I Dewa Gede Palguna, Maria Farida Indrati,
Patrialis Akbar, Aswanto, Suhartoyo, and Manahan M.P. Sitompul, respectively
as Member, at Monday, the sixth, July, year two thousand fifteenth, spoken in the Plenary Session of the Constitutional Court open to the public at on Wednesday, date eight, in July, year two thousand fifteen, finished spoken at at 10.41 WIB, by nine Constitutional Judges, namely Arief Hidayat, as the Chief of the Members, Anwar Usman, Wahiduddin
Adams, I Dewa Gede Palguna, Maria Farida Indrati, Patrialis Akbar, Aswanto,
Suhartoyo, and Manahan M.P. Sitompul, respectively as Member, with
35
accompanied by Ida Ria Tamheap as Panitera Replacement, and attended by
the applicant, President or representative, as well as the House of Representatives
The people or the representing.
CHAIRMAN,
.
Arief Hidayat
MEMBERS,
ttd.
Anwar Usman
ttd.
Wahiduddin Adams
ttd.
I Dewa Gede Palguna
ttd.
Maria Farida Indrati
ttd.
Aswanto
ttd.
Patrialis Akbar
ttd.
Suhartoyo
ttd.
Manahan M. P Sitompul
PANITERA REPLACEMENT,
ttd.
Ida Ria Tamheap
36
