Key Benefits:
on the terms of the terms, due to the treatment of Article 8 (2),
Article 15, Section 16, and Section 17 of the paragraph (2) and paragraph (3) of the 08/2012 Act, it turns out
still requires the approval and/or the designation of the Election Commission
General of the Republic of Indonesia;
the system that, at the same time, the applicability of Article 8 of the paragraph (2), Section 15,
Article 16 and Section 17 of the paragraph (2) and paragraph (3) of the 08/2ached to the political party, including the constitutional right as set out in Article 22E (3) of the 1945 Constitution which reads: " General election participant to select members of the People's Representative Council and the Regional People's Representative Council
is the political party." (bold print added by the applicant);
That is, viewed from The formulation of Article 22E paragraph (3) of the Constitution of 1945, the position of the political party as a general election participant to elect a member of the House and the DPRD is not to be broadcast on any terms. That is, any organization that has met the overall terms
as specified in Law Number 2/2011 on Change of the Act
Number 2/2008 about the Political Party serta-merta has been based as a general election participants to select House members and members
DPRD;
5
The view that, however, a number of articles in Law Number 8
In 2012 about the General Election of the People's Representative Council, the Board
The Regional Representative, and the Regional People's Representative Council (Act 8/2012), are:
section 8 paragraph (2) reads: "The political party can be an Election Participant after meeting the requirements:
a. Status as a legal entity in accordance with the Act
about the Political Party;
b. Has affairs across the province;
c. It has an administration of 75% (seventy-five percent) of the amount
county/city in the province in question;
d. It has a business of 50% (fifty percent) of the amount
the district in the district/city is concerned;
e. Includes at least 30% (thirty percent)
representation of women on political party matters
center;
f. Have members of at least 1,000 (a thousand) people or
1/1,000 (one thousander) of the population on the subject
The political party as is attested in c.
with member tag card entitlement;
g. It has a fixed office for administration on the central level,
province, and county/city until the final stage of the Election;
h. Submitting the name, emblem, and image of the political party picture
to KPU; and
i. Give up the Election campaign fund number on behalf of
the political party to the KPU;
paragraph 15 which reads: "Document requirements as referred to in Section 14 of the paragraph (3) include:
a. State News of the Republic of Indonesia that the party
the politics is registered as a legal entity;
b. the decision of the political party center board about the administrator
provincial and county-level administrators/kota;
c. letter from the political party center board and
address remains caretaker center level, provincial level administrator, and
county-level administrators/kota;
6
d. A letter from the center of the political party for
The inclusion of women's representation of at least 30% (three
-thirty percent) in accordance with the provisions of the perinvite rules-
invitation;
. paper on registration, emblem, and/or
Political party image of the governing ministry
Government affairs in the field of law and human rights;
f. Evidence for political party membership is at least 1,000 (thousand) people
or 1/1,000 (one per thousand) of the population at any
county/kota;
g. proof of ownership of account number on behalf of political parties; and
h. Basic budget copy and political party household budget
in accordance with the provisions of the laws";
section 16 which reads: " (1) KPU performs verification of completeness and correctness
the requirements as referred to in Article 15 of the party
politics as referred to in Article 8 of the paragraph (2).
(2) Verification as referred to in paragraph (1) must be completed
executed at least 15 (fifteen) months prior to the day
vote.
(3) More terms on the execution and timing of verification
as referred to in paragraph (1) and paragraph (2) is set with
KPU rules."
section 17 verse (2) which reads:" The political party of the candidate of the Election Participant who passed the verification as referred to in Article 16 is set
as the Election Participant.
s article 17 paragraph (3) reads: " The designation of the political party of the Election Participant is conducted in the KPU plenary session."
has required political parties to register themselves
a general election for first to pursue verification by the Commission
The General Election as a basis for setting political parties
qualified and that is not eligible to be an election participant
general DPR and DPRD members;
7
The following is that, under Section 8 of the paragraph (2), Section 15, Section 16 and Section 17 of the paragraph
(2) and the paragraph (3) of the 08/2012 Act above, the General Election Commission
Republic of Indonesia through Decision Number 05 /Kpts/Year 2013 from
8 January 2013 on the Redemption of the Political Election Participant Party
in 2014 (proof P-4) had stated the applicant was not eligible to be a 2014 General Election participant;
the current That, Section 8 of the paragraph (2), Section 15, Section 16 and Section 17 of the paragraph
(2) and the paragraph (3) of the Act (2). 08/2012 has resulted in a noticeable loss for the applicant to the loss of the constitutional right of the applicant as a 2014 general election participant. That is because of what has been expressly stated in Article 22E of paragraph (3) of the p according to Indonesian law authorized for it
(proof P-2);
The applicant that, the applicant has received an authorization as a legal entity from the State of the Republic of Indonesia casu quo Government of the Republic of Indonesia casu
quo of the Minister of Law and Human Rights Republic of Indonesia as
required by Article 3 of the paragraph (1) Law Number 02 of 2011
about the Political Party (proof P-3);
The law that, legal entity (rechtspersoon) is one type of legal subject next to the subject of another type of law, i.e. man as an individual (natuurlijk persoon). As for, the subject of law is everything that according to the law can have rights and obligations (see, Chidir Ali, S.H., the Legal Agency. Bandung: Alumni, 1991, Things. 5; see also, Prof. Dr. Mr.
seize the political position --- (usually) by constitutional means --- for
carry out its program" (see, Prof. Miriam Budiardjo, Basic Science
Politics. Jakarta: Pustaka Utama Gramedia, 2008, hal. 404-405). Similarly
Giovanni Sartori --- the Grand Master of Political Science at Columbia University ---,
interprets the political party as: " ...any political group that presents at
elections, and is capable of placing through elections, candidates for public
office. " (see, Giovanni Sartori, Parties and Party Systems: A Framework for
Analysis. Cambridge, UK.: Cambridge University Press, 1979, thing. 64). as for
Carl Joachim Friedrich, --- who during his lifetime was the Teacher of the Science
Government at Harvard University ---, interpreting political parties as:
" ... a group of humrovincial KPU, members of PPLN, members of KPPSLN, Secretary
General KPU, and employees of the General Secretariat General KPU are proven
perform the actions that result in the disruption of the stage
The ongoing elections are based on
Your Bawaslu and/or the perinvite rules provisions-
invitation;
p. exercise the socialization of the Election and/or the
relating to the duties and authority of the KPU to the community;
q. establish a public accounting office to audit campaign funds and
announce a campaign fund donation report;
r. conduct an evaluation and create a report of every stage
Election host; and
s. executing the duties and other authority under the provisions of the laws. " (bold print added by PEMOHON);
9. As a result of the Act 8/2012 as it turns out from the title is
The Bill of Representatives Elections, DPD, and DPRD, in
where the general election of the House of Representatives, DPD, and the DPRD is only one
domain of the KPU authority as set forth in Law 15/2011;
10. That, if grouped by systematics of the charge material
legislation put forth by A. Hamid S. Attamimi, then Act
8/2012 included in the regulatory group on human rights (citizens) (see, A. Hamid S. Attamimi, "The Peranan Decision of the President of the Republic of Indonesia in the Governing Governing State",
Disertation of the Doctor of Science, University of Indonesia, 1990, matter. 212);
11. That, if seen in the context of the hierarchy of rules of the law-
invitation, Act 8/2012 is the further implementation of Article 22E of paragraph (6) of the 1945 Constitution which reads: "Further provisions about the general election are set up with the legislation". Accordingly, the Act of Charge Act 8/2012 is a legal norm that concerns the technical implementation of the general election, rather than the institutional organizing of the general election and its authority attribution. Where the norms of law
regarding the technical implementation of the elections itself must always be
streamline the realization of the people's power as a consequence of it
12
the idea of sovereignty in the state system of the Republic of Indonesia
as it turns out from Article 1 of the paragraph (2) of the 1945 Constitution;
12. That, as long as it concerns the implementation of the House of Representatives elections,
DPD, and the DPRD, the KPU is at the position of carrying out the provisions
in Act 8/2012 with only using the power arbiters that have been given to him. in Article 8 paragraph (1) of Act 15/2011. In other words, The attribution of the KPU authority cannot be performed in Act 8/2012, due to: a. The attribution of the KPU's authority was completed shortly after the 15/2011 Act. promulred. Therefore, the new authority attribution for the KPU outside of what has been specified in the 15/2011 Act should
be done by creating a new Act as a substitute
of the Act of 15/2011 or at least to the doing changes
against Act 15/2011;
b. The attribution of the KPU authority does not include the charge material Act 8/2012 given the charge material of the Act 8/2012 is concerning the rights of the rights
citizens. Accordingly, any attribution of the KPU authority and/or general election organizers in the Act 8/2012 is inconstitutional;
13. That, however, the provisions of Article 8 paragraph (2), Section 15, Section 16, and
Article 17 of the paragraph (2) and paragraph (3) of the Act 8/2012 have in fact granted
a new authority to the KPU outside of what has been expressly-
unequivocal. set in Act 15/2011, that is:
a. Provide verification of self-registered political parties
to be a general election participant in the House of Representatives and the DPRD; and
b. based on the results of such verification above assigning a political party that
is eligible and that is not eligible to be a participant
the general election of the House of Representatives and the DPRD;
14. That, Section 8 of the paragraph (2), Article 15, Article 16, as well as Article 17 of the paragraph (2) and paragraph
(3) of the Act of 8/2012 have indeed incur constitutional problems
others that are very fundamental. Article 22E paragraph (3) of the Constitution of 1945 reads:
"General election participants to elect members of the House of Representatives
and the members of the Regional People's Representative Council are political parties." Seen
of the paragraph 22E paragraph (3) The UUD 1945 above, position
13
The political party as a member of the House of Representatives elections and the DPRD is not available to any terms. That is, the position as a general election participant to elect a member of the House and
the DPRD is serta-merta has been owned by any political party shortly after
the political parties concerned have met the whole of the terms
which has been established in the Act on the Political Party;
15. That, as per the provisions of Article 1 of item 1 of the 2/2011 Act on the Upper Change
Act 2/2008 about the Political Party, the political party is the national
national and is formed by a group of Indonesian citizens
volunteer on the basis of similarity of will and ideals to fight
and defend the political interests of members, society, nation and country
as well as maintaining the integrity of the State of the Republic of Indonesia based
Pancasila and the State Basic Law of the Republic of Indonesia Year
1945;
16. That, Miriam Budiardjo, --- who during her lifetime served as the Teacher
Political Science at the Faculty of Social Sciences and University Political Science
Indonesia ---, defines the political party as: " ...an organized group
whose members have orientation, values and ideals
same. The purpose of this group is to gain political power and
resentative Council by making the event news
The calculation of the votes and the certificate of result counting votes;
i. make news of the sound counting and counting certificates
votes as well as mandatory handing it over to Election participant witnesses and
Bawaslu;
j. published a KPU decision to pass the Election results and
announce it;
k. establish and announce the acquisition of the number of Board member seats
People's Representative, Pr nstitution. (see, Hans Kelsen, General Theory
of Law and State. New York, NY.: Russell & Russel, 1961, thing. 260-269; see
17
also, Hillairie Barnett, Constitutional and Administrative Law. Portland, OR.:
Cavendish Publishing, 2002, thing. 3; Jimly Asshiddiqie, Introduction to Tata Law
The State. Jakarta: Rajawali Pers, 2009). Therefore, is the unconstitutional thing to authorize the Electoral Commission to determine which anyone is entitled and who is not eligible to be a participant of the general election, in which the Election Commission of the General Election is held. alone is a nonelected agency.
(look, Gerry Stoker, The Politics of Local Government. London, UK.:
Macmillang Press, 1991 as quoted in Jimly Asshiddiqie,
Development & Consolication of the State Institute Pasca Reform. Jakarta:
Sinar Grafika, 2012, hal. 5-26);
27. That, in the further implementation of a higher legal norm
by the lower legal norm it is good we listen to the opinion
put forth by A. Hamid S. Attamimi when it says: " ... what
has been determined by higher legal norms instead of being
guidelines and guidance, as is the case for legal principles, but is already a provision to be followed by lower legal norms. " (see, A. Hamid S. Attamimi, "The Peranan Decision of the President of the Republic of Indonesia in the Law of the State," Disertation
Doctor of Legal Science, Graduate Faculty of University of Indonesia, 1990, matter.
361.) (print bold added by the applicant);
28. That is, by Hans
Kelsen stating: "This is the difference between individuals and the
State as acting persons; and that means, between the individual acting notes. us
State organ and the individual acting as State organs. Individual who does not
function as a State organ allowed to do whatever he is not forbidden to do by
legal order, whereas the State, that is, and individual who functions as a State organ, can do only what the legal organs are. order the order of him to do." (see, Hans Kelsen, General Theory of Law and State. New York, NY.: Russell &
Russell, 1961, thing. 264) (bold print and bottom line added by
Applicant);
29. That, according to the universal applicable law theory, the opinion of experts
the law is one of the sources of the law. Therefore, the opinion of experts
the law is above and on various other parts in the plea
18
it is already appropriate if used as one of the materials for
assessing the charge material and the constitutionality of the legal norms
contained in Section 8 of the paragraph (2), Section 15, Section 16, and Section 17. verse (2)
and paragraph (3) Act 8/2012;
30. That, based on such matters above, Section 8 of the paragraph (2), Section 15, Section
16, as well as Article 17 of the paragraph (2) and paragraph (3) of the Act of 8/2012, ---where Act 8/2012 it
itself is the further implementation of Article 22E of the paragraph (6) of the 1945 Constitution ---,
has contained legal norms beyond the constitutional order, so
by therefore it is unconstitutional, because it contains also the charge material
which is the execution of Article 22 of the paragraph (5) which is actually
organized in Act 15/2011.
B. Capturing sovereignty from the People ' s Hands
1. That, sovereignty is the concept of supreme power in an
state. (see, Jimly Asshiddiqie, The Idea of the Sovereignty of the People in the Constitution
and its Lacquation in Indonesia. Jakarta: Ichtiar Baru van Hoeve, 1994, hal.
5). Accordingly, Article 1 of the paragraph (2) of the Constitution of 1945 reads: "Sovereignty
is in the hands of the people and exercised according to the Basic Law.",
means that the highest power in a country life in Indonesia
is in the hands of the people;
2. That, as a country adhering to the sovereignty of the people
as affirmed by Article 2 of the paragraph (1) of the 1945 Constitution in which the power
the highest in a country's life is in the hands of the people, then the content of all the rules Applicable laws in Indonesia must
avoid the formulation that could result in the implementation of the people's power. As for directions segernap laws must be ease of the nature of the people's desires in the formation of government policies (see, Marsillam Simanjuntak, Country View
Integralistic: Source, The Elements, and Its History in Preparation of the 1945 Constitution.
Jakarta: Main Puss of Graffiti, 1994, thing. 1);
3. That, the sovereignty of the people is exercised according to the Basic Law
means that the holding of state power according to the 1945 Constitution
adheres to the constitutional system (constitutionalism). (see, Maria Farida Indrati
Soeprapto, Science: Basic Basic and Determining.
Yogyakarta: Kanisius, 1998, hal. 125);
19
4. That, as Carl J. Friedrich described: "Constitutionalism
embodies the simple proposition that government is a set of activities
organized by and operated on behalf of the people, but subject to a series. of
restraints which attempts to ensure the power which needed for such
governance is not abused by those who are called upon to do the governing. "
(Carl J. Friedrich, Constitutional Government and Democracy: Theory and
Practice in Europe and America. Boston, MA.: Ginn & Co., 1950, thing. 35),
where in the system of constitutional limitations in Indonesia the restriction-
the restrictions are mandatory by state organizers there is
in the 1945 Constitution;
5. That, in the context of the constitutional system (constitutionalism) that applies at
Indonesia, any Act is the further implementation of what
that has been set up in the Constitution (see, A. Hamid S. Attamimi, " Peranan
The decision of the President of the Republic of Indonesia in the Hosting
Government of the State ", Disertation of the Doctor of Science, Graduate Program
Indonesian University, 1990, hal. 215);
6. That, as Maria Farida Indrati Soeprapto put it, ---
Great Teacher of Science at the University Law Faculty
Indonesia ---: "By because the State of the Republic of Indonesia adheres to Insights
The government under the constitutional system, the laws
in the State of the Republic of Indonesia is bound by the Basic and Legal Act
Basic. " (see, Maria Farida Indrati Soeprapto, Science:
The Base and the Establishment. Yogyakarta: Kanisius, 1998, hal. 129);
7. on
it still requires verification and passage of the Commission
The General Election prior to the constitutional right was solemnable
enjoyed;
26. That, things that concern anyone who are entitled to participants
the general election is included in the realm of relations between the state and the citizens
the country. And it is a common truth (general truth) in the law of tata
the state that matters concerning the relationship between state and citizens
the state is the subject matter of the co that provide guidelines and guidance for the regulatory handlers into their forms and derivatives, for
methods of formation, and for the process and procedure the coincidence.
The last law Asas can be called asas formation regulation
23
appropriate legislation. " (A. Hamid S. Attamimi, "The Decree of Decision
President of the Republic of Indonesia in the Government of the State Government",
Disertation of the Doctor of Science, Graduate Program of the University of Indonesia,
1990, the thing. 304). (bold print added by the applicant). Further Attamimi
states: "The two principles of the law are running as side by side
provides concerted guidelines and guidance in each time activity
the formation of laws, Each corresponds to
the field" (A. Hamid S. Attamimi, "The Acting President of the Republic of the Republic
Indonesia in Governing State Government", Doctoral Disertation
Legal Sciences, Graduate Program Of The University Of Indonesia, 1990, Thing. 304-
305);
10. That, as seen in the framework of Article 5 of the Act 12/2011, the provisions of Article 8 of the paragraph
(2), Article 15, Article 16, and Article 17 of the paragraph (2) and paragraph (3) of Act 8/2012
in fact have given rise to a very serious state of matter
seriously, in particular concern about the principles:
a. Clarity of purpose: in the context of the principle of people's sovereignty and principles of legal certainty, the purpose of which is to be achieved by Article 8 (2), Article
15, Article 16, and Article 17 of the paragraph (2) and paragraph (3) of the Act of 8/2012 is extremely
not clear. As it has been proposed in various sections
previously in a country that adheres to the principle of the sovereignty of the people
all laws must be made easier
the realization of the will of the people. In fact, Article 8 of the paragraph (2), Article
15, Article 16, as well as Article 17 of the paragraph (2) and paragraph (3) of Act 8/2012 instead
complies with the realization of the constitutional rights as affirmed
in Article 22E paragraph (3) of the 1945 Constitution. Similarly, the verification of parties
repetitive politics of course has resulted in uncertainty
the law;
b. The suitability of type, hierarchy, and charge material: Act 8/2012 is the further implementation of Article 22E paragraph (6) of the 1945 Constitution which reads:
"Further provisions about the general election are set with the invite-
invite. " As a further implementation of Article 22E paragraph (6), The Act of 8/2012 actually includes the kind of legislation whose material it regulates on human rights (citizens). However, Section 8 (2), Article 15, Section 16, and Article 17 of the paragraph (2) and
24
paragraph (3) Act 8/2012 turns out the legal norm that contains the attribution attribution of the country's completeness which should be regulated in the type of legislation regarding the organization's designation and completeness
country. In other words, in Section 8 of the paragraph (2), Section 15, Section 16,
as well as Article 17 of the paragraph (2) and paragraph (3) of the Act of 8/2012 there is a conflict
between the type and the charge material;
c. Use and usability: Section 8 of the paragraph (2), Section 15, Article 16, and Article 17 of the paragraph (2) and paragraph (3) of the Act of 8/2012 are not effective
sociological, since real-real has complicates political parties for
enjoy His constitutional rights. At the same time, Article 8
paragraph (2), Article 15, Article 16, and Article 17 of the paragraph (2) and paragraph (3) of the Act
8/2012 are also not philosophically effective, as opposed to the principle
the sovereignty of the people and asas of legal certainty;
9. That, Section 8 of the paragraph (2), Section 15, Section 16, Section 16, and Section 17 of the Act
8/2012 does not reflect the principles of the perinvite regulatory charge-
The invitation as referred to in Article 6 of the paragraph (1) Act 12/211,
especially asas:
a. The Pengayoman, because of Article 8 of the paragraph (2), Article 15, Article 16, and Article 17 of the Act 8/2012 does not provide any protection to the political party for
using its constitutional rights, but instead prevents it-
block the political party. Enjoying a guaranteed constitutional right
decisively in Article 22E paragraph (3) of the 1945 Constitution;
b. Order and legal certainty, because as of Article 8 of the paragraph (2), Article 15, Article 16, and Article 17 of the Act 8/2012 have instead created
untertide and legal uncertainty. The element of legal intangible is very real given that a legal product shaped the decision of the Commission
The General Election may be able to undo the party's constitutional rights
the politics that has been decisively secured by Article 22E verse (3) UUD
1945. The legal uncertainty element is clearly visible from the reality of the repetition of verification by the Electoral Commission against
the political party that had previously been designated as the legal entity
so that it is therefore have a right to be determined
by Article 22E paragraph (3) of the 1945 Constitution;
25
10. That, given that Article 22A of the 1945 Constitution contains a legal norm that
is common to be further implemented by the Act of 12/2011, then the things
above should be viewed as a contention between Article 8 of the paragraph
(2), Article 15, Section 16 as well as Article 17 of the paragraph (2) and paragraph (3) of Law Number 8/2012
with the provisions of Article 22A of the 1945 Constitution,;
11. That, because the above conflicts are
concerns the subject matter of the laws, then
this request does not intend at all to submit a formyl test,
but it remains consistent. with the submission of a material test (material judicial
review).
12. That, the applicant fully understands that in order of consolidation
democracy is required of a simple party system. However,
The applicant refuses if a simple party system is narrowed
its meaning becomes as if a reduction in the number of political parties.
As pointed out by Juan J. Linz and Alfred Stepan democracy
The consolidation is a political regime that is in it a democracy
as a complex system of institutions and rules
being the only rules of play. (see, Juan J. Linz and Alfred Stepan,
"Define and Build Democracy", in Juan J. Linz, et al.,
Stay away from the Villain Democracy: Learning from the Country's fallament
Another. (j.). Jakarta: Mizan, 2001, hal. 39-40
9. That, in connection with Section 5 and Section 6 of the paragraph (1) of the Act 12/2011
above, it is best that we listen to what the A.
Hamid S. Attamimi put forth when it says: " In the formation of regulations
Indonesian laws, as well as in other countries, exist
two legal principles that need to be noticed, that is the common law principle
specifically provides the guidelines and guidance for "formation" of regulatory contents, and other legal principles >). While concerned with the system
the partame, Giovanni Sartori stated: " ... a party system is ical the
system of interactions resulting from inter-party competition. That is, the
system in question bears on the relatedness of parties to each other, on how
each party is a function (in the mathematical sense) of the other parties and
reacts, competitively or otherwise, to the other parties. " (see, Giovanni Sartori,
Parties and Party Systems: A Framework for Analysis. Cambridge, UK.:
Cambridge University Press, 1979, thing. 44). From that formula above
real clearly how the party system more refers to the interrelations and patterns of political inter-party competitions rather than just the number of political parties. And the consolidation of democracy can be said
in the event of mutual relations and interparty competition patterns
is always based on legal rules especially in this regard
is the constitution;
30
The party name will not be listed in the ballot paper, only the candidate name
forward.
b. Political parties are established based on the basic requirements set
by the Constitution and have political objectives or activities to advance
candidates who will compete in the general election for the House
of Representative or for the Senate. (Source: Electoral Act (1918),
Section 126.)
7. That the terms are required to be met by political parties for
to be a general election participant in Cambodia to be able to be registered
as a participant in the general election, the political party must register at the
Committee National Election Committee (National Election Committee) and application
registration will be approved by National Election Committee, no more than 70
days before the announcement of the nomination announcement, by complementary
The following documents are:
a. A copy of the political party registration certificate issued by
Ministry of Internal Affairs;
b. The full name registration document is the following
and the logo;
c. The address of the political party headquarters
d. List of potential names to be submitted across the country. The
list should include all at least one-thirds (1/ 3) of the number
seats in the National Council and a number of the same alternative potential names
with the number of candidates
e. The board submitted where the party filed and
is linked to the list of candidates. In 2009 the list of potential names
by having to equal the number of seats allocated
by the National Electoral Committee and displayed in the format
that is set by so at least must
be provided at least three alternative candidates for each seat.
f. Statements showing the advice of funds available and including
data source donation that has been deposited in any account in the Kingdom
Cambodia that has been accredited by the National Bank of Cambodia (the National
Bank of Cambodia);
31
g. A copy of the Basic Budget of the Political Party and other documents stating
the format of the party;
h. Statement of political party commitment to participate and accept results
of the free and fair-held elections
heeding the rules regarding the membership code of membership of
National Council and rules regarding the Political Party;
i. List of founders and slipters of the party or other organs in the political party
j. A $15 million cash deposit receipt is issued
by the State Wealth Agency. This fund will be returned to the political party
if it receives at least 3 percent (3%) valid votes for
to win 1 seat in the National Assembly.
(Source: Law on the Election of the Members of the National Assembly,
Chapter IV Registration of Political Parties and Lists of Candidates, art, art. 37
(new))
8. That, in the party system that applies in Thailand applies to the system
the registration of the political parties as follows:
a. Candidates or candidates are required to include a willingness to enter a letter of willingness
to apply for political parties to the fibres
in the general election.
b. Provide a deposit of 5,000 baht for each candidate or
candidate (Source: Organic Act on Election of Members of the House of 2008
Representative and Installation of Senators B.E. 2550 (2007), sec. 36 &
42.)
9. That, in the party system that applies in India applies to the system that
there is only a candidate for the candidate. Despite this, some candidates
were prepared and sponsored by a political party. There is no separation between
political party registration for the general election. The Poltic Party Registry
has been conducted by the Electoral Commission (section 29 A of Representation
Act 1951) with the requirements. Easy as party contributions, names
parties and offices of registered political parties and so on. And which
more importantly the party is only distinguished by the two groups, the Party
National or the State Party which is judged by the geographic distribution of the party and
the percentage of voters based on the results of the last general election. The candidate
proposed a political party getting the excess in terms of the disadvantages only
32
from the round of the symbol given by the political party. (Source:
Representation of People Act, sec 29 A Election Symbols (Reservation and
Allotment) order 1968);
10. That, as compared to other countries especially with
the neighbouring countries themselves, the requirement to establish a political party and
follow the general election in Indonesia is much heavier and highly
limits the rights citizens to the union and assemble;
11. That, the applicant is aware of how each country, no exception to Indonesia,
has its own unique to those of the countries
others. However, the uniqueness of course is not a reason for
ruling out the norms contained and valid valid in
the constitution, gi
will have a member of a number of 1000 people nationally in
the 90 days since the party in question is listed on the commission
general election;
(see, Kristina Kironska, "The Electoral System of Myanmar", Tesis Master, National Sut Yat-sen University, 2011).
Please let us remember that Myanmar is a country that long
decades have been getting sanctions from various countries and from
the United Nations (UN) on the grounds of practicing the system
politics undemocratic;
4. That, in tven the constitution is the basic law in the practice of life
in which the country is the law of the country. The constitution serves as the basis and the limit for
the organizers of the state power to exercise the power of the state
especially vis-à-vis citizens.
IV. THINGS THAT DIMOHONKAN
BASED ON THESE THINGS ABOVE, WITH THIS PETITIONER PLEDGING TO
CHAIRMAN OF THE CONSTITUTIONAL COURT C.Q. ASSEMBLY OF CONSTITUTIONAL JUDGES EXAMINING
THIS PLEA GIVES A RULING THAT IS stated: 1. he population of the political party's affairs as indicated by the letter c as evidenced by the ownership of the member card;
g. have a fixed office for management on the central, provincial, and county/city level until the last stage of the Election;
h. propose a name, emblem, and a sign of the political party ' s image to the KPU; and i. Hand over the account number of the election campaign on behalf of the political party to the KPU.
Section 15 Documents requirements as referred to in Section 14 of the paragraph (3) include: a. State News of the Republic of Indonesia that the political party is registered as a legal entity;
b. the decision of the political party's central administrator about provincial and county-level administrators/kota;
c. letter from the political party center board about office and address remains central level administrator, administrator province, and county-level administrators/kota;
d. A letter from the political party's central administrator on the inclusion of women's representation at least 30% (thirty percent) in accordance with the provisions of the laws of the law;
e. a letter to the registration of name, emblem, and/or the drawing sign of the political party from the ministry that organizes government affairs in the field of law and human rights;
f. The membership of the political party is at least 1,000 (a thousand) people or 1/1,000 (one thousand) of the population in each district/kota;
g. evidence of ownership of account numbers on behalf of political parties; and h. a copy of the base budget and the political party household budget in accordance with the provisions of the laws.
Article 16 (1) KPU conducts verification of the completeness and correctness of the requirements as referred to in Article 15 of the political party as referred to in Article 8 of the paragraph (2).
(2) Verification as referred to in paragraph (1) must be completed at least 15 (fifteen) months prior to the voting day.
37
(3) Further provisions regarding the execution and verification time as referred to in paragraph (1) and paragraph (2) are governed by the KPU rules.
Article 17 (2) The political party of the candidate of the Election Participant who passed the verification as referred to in Article 16 is set to be an Election Participant by the KPU.
(3) The penetration of political parties as an Election Participant is conducted in the KPU plenary session.
[3.8] weighed that based on the description as of
paragraph [3.5] up to paragraph [3.7] above, next the Court will
consider the legal position (legal standing) The applicant in
application a quo as follows:
That according to the P-1 evidence of a Basic Budget made with the Akta Notary
Number 50 by Notary Yan Arman, S.H., on page 6 of Chapter VIII about
Relationship With Other Organizations of Article 8 figure 1 and number 2 states:
" 1. DPN represents the Party both to the outside and the inside;
2. Cooperation with parties and other organizations may only be performed by DPN
through the General Chairman and the National Secretary or Member of the DPN appointed
for that by the General Speaker ".
By the Applicant (Damianus Taufan) is the Chairman of the Chairman's Board
National Independent People's Union Party acting for the benefit
his party then according to the Court, there is a loss of constitutional rights
The supplicant (Damianus Taufan) and there is a causal link due to (causal verband)
between the loss of the applicant (Damianus Taufan) by the enactment of the section-
the section is required to test which if the supplicant (Damianus
)The Taufan) was granted the constitutional loss of the applicant (Damianus Taufan)
will not or no longer occur. Thus, according to the Court, the applicant
(Damianus Taufan) has a legal standing (legal standing) to submit
a testing application of the chapter a quo. as for the applicant (Horas A.M. Naiborhu),
according to the Court, there is no legal position as the applicant in
the case a quo because the applicant (Horas A.M. Naiborhu) is not the Secretary
National or a member of the DPN The appointed Independent People ' s Union Party
38
in writing by the General Speaker to represent the DPN of the People's United Party
Independent;
[3.9] A draw that is due to the competent court of prosecuting
the plea a quo, and the applicant (Damianus) Taufan qualified
legal standing (legal standing) to apply for a quo then
subsequently the Court will consider the subject;
Subject to the plea
Court opinion
[3.10] A draw that before considering the subject matter
The court needs to cite Article 54 of the MK Act stating, "The court
The Constitution may request the captions and/or meeting treatises in respect
with the application being examined to the Consultative Assembly
People, DPR, Regional Representative Council, and/or President". Because of the article
it uses the word "can" then the Court should not hear
the statement of the People's Consultative Assembly, the House of Representatives, the Council
The Regional Representative, and/or the President in conducting the testing. over an
Act. In other words the Court may request or not request
the captions and/or meeting treatises with respect to the application
are being examined to the People's Consultative Assembly, House of Representatives
People, Council The Regional Representative, and/or the President, depends on the urgency
and its relevance. Because of the legal problems in the a quo
clearly, then the Court sees no urgency and relevance for
requesting the description and/or meeting treatises of the People's Consultative Assembly,
Council The People's Representative, the Regional Representative Council, and/or the President,
so the Court directly considered and then disconnected
a request without asking the description of the state institutions
in question;
[3.11] weighed that against the petitum of the Petitioner (Damianus
Taufan) in order for Article 8 verse (2) is declared against the 1945 Constitution and
has no binding legal force, the Court as in
39
considerations of Number 52/PUU-X/2012, dated 29 August 2012
consider, among other things, that:
" ... [3.15] A draw that freedom in a state of law must be framed in a The laws of the law, among others, are equal in the law of the Article 27 of the paragraph (1) of the Constitution of 1945, and the independence of the union, and the assembly of Article 28 of the Constitution of 1945. Nevertheless,province;
36
c. has a management of 75% (seventy-five percent) of the number of counties/cities in the province concerned;
d. has affairs in 50% (fifty percent) of the number of subdistricts in the county/city concerned;
e. Includes at least 30% (thirty percent) of women's representation in central political party affairs;
f. has a member of at least 1,000 (one thousand) people or 1/1,000 (one per thousand) of t according to the Court, as also affirmed by the 1945 Constitution, freedom, both as concept and action, is not without limit. Freedom is paradoxical, when released without limits, it will destroy or destroy freedom itself. The freedom of some people or groups has the possibility to be limited solely to respect and preserve the freedom of some people or other groups [vide Article 28J verse (2) of the 1945 Constitution].
[3.16] The draw that according to the Court of all political parties established in Indonesia is intended to contest and safeguarding
the freedom of some people or other groups [vide Article 28J paragraph (2) UUD
1945]. Thus, the provisions of Article 15, Article 16, and Article 17 of the paragraph (2)
and paragraph (3) Act 8/2012 does not conflict with the 1945 Constitution;
[3.13] Weighing that based on the entire description of the above consideration,
according to the Court, the applicant requests relating to testing
the constitutionality of Article 8 of the paragraph (2) Act 8/2012 is ne bis in idem and
plea The applicant relates to the testing of the constitutionality of Article 15,
Article 16, and Article 17 of the paragraph (2) and paragraph (3) of the Act of 8/2012 is unwarranted
according to the law;
4. KONKLUSI
Based on the legal judgment and fact above, the Court
concluded:
[4.1] the court is authorized to prosecute the applicant;
[4.2] The applicant Damianus Taufan has a position. law (legal standing)
to apply for a quo;
[4.3] Horas A.M. Naiborhu does not have legal standing (legal
standing) to apply for a quo;
[4.4] Request of Applicant Damianus Taufan regarding the testing of Article 8
paragraph (2) Act No. 8 of 2012 on Elections
Member of the People's Representative Council, Regional Representative Council, and
The Regional People's Representative Council (Republican Gazette
Indonesia of 2012 No. 117, 2012). Additional State Sheet
Republic of Indonesia Number 5316) is ne bis in idem;
[4.5] Request of the Applicant Damianus Taufan regarding the testing of the Section
Section 15, Section 16, and Section 17 of the paragraph (2) and paragraph (3) Act
Number 8 of the Year 2012 on Election Member of the Board
People ' s Representative, Council Regional Representative, and Representative Council
43
People of the Region (sheet state of the Republic of Indonesia in 2012
Number 117, Additional Gazette Republic of Indonesia Number
5316) is unwarranted according to law;
Based on the State Basic Law Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of 2011 on
Changes to the Law Number 24 Year 2003 concerning Court
Constitution (State Of The Republic Of Indonesia In 2011 Number 70,
Additional Gazette Republic Indonesia Number 5226) and Invite-
Invite Number 48 Of 2009 On The Power Of Justice (State Sheet
Republic Of Indonesia 2009 Number 157, Extra State Sheet
Republic Indonesia Number 5076);
5. AMAR VERDICT
PROSECUTING,
STATES:
1. The request of Horas A.M. Naiborhu is not acceptable;
2. Request of Damianus Taufan regarding the constitutionality testing
Article 8 of the paragraph (2) of the Law No. 8 of the Year 2012 on Election
General of the People's Representative Council, the Regional Representative Council, and
The House of Representatives People Of The Region (sheet State Of The Republic Of Indonesia
In 2012 Number 117, Additional Sheet Of The Republic Of Indonesia
No. 5316) is not acceptable;
3. Rejecting the request of Damianus Taufan regarding the testing of the Article
Article 15, Article 16, and Article 17 of the paragraph (2) and paragraph (3) of the Number Act
8 Year 2012 on the General Election of the Members of the People's Representative Council,
Council Regional Representative, and Regional People's Representative Council (Sheet
State of the Republic of Indonesia 2012 Number 117, Additional Sheet
State of the Republic of Indonesia Number 5316);
44
Thus decided in a Meeting of the Judges by the nine Judges of the Constitution, namely M. Akil Mochtar, as the Chairman of the Members, Achmad Sodiki, Ahmad Fadlil Sumadi, Harjono, Maria Farida Indrati, Muhammad Alim, Hamdan, and the Chief of the Judges of the Judges of the United States. Zoelva, Anwar Usman, and Arief Hidayat, each as Member, on Thursday, date twenty, month June, year two thousand thirteen, which is spoken in the plenary session of the Constitutional Court is open to the public at day Wednesday, date twenty-eight, month August, year 2 thousand thirteen, completed pronounced at 16.12 WIB, by the eight Constitutional Judges, namely M. Akil Mochtar, as Chairman of the Members, Hamdan Zoelva, Harjono, Ahmad Fadlil Sumadi, Anwar Usman Muhammad Alim, Arief Hidayat, and the following. The patrialist Akbar, each as a Member, was accompanied by Cholidin Nasir as the Panitera of the Switcher, and was attended by the applicant, the Government or the representative, and the House of Representatives or the representative.
CHAIRMAN,
ttd.
M. Akil Mochtar
MEMBERS, ttd. td
Hamdan Zoelva
ttd.
Harjono
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Muhammad Alim
ttd.
Arief Hidayat ttd.
Patrialis Akbar
PANITERA REPLACEMENT, ttd.
Cholidin Nasir
45
UUD 1945 to host elections is a commission
a general election that, according to the a quo Act nomenclature of the Commission
General Election;
Then Article 22E paragraph (6) of the 1945 Constitution states, " Conditions further
about the general election is set with legislation ". The provisions
authorizes the Law-forming (DPR and
President) to form an Act on the general election in
in which it regulates the general election including the party's terms. politics
and the grammar of political party registration into general election participants
(Election);
The provisions of Article 15, Section 16, and Section 17 of the paragraph (2) and paragraph (3) Act 8/2012 which
Under the Governing Law are the articles relating to the layout
the way the political party registration as an Election participant is policy
open law of forming Act because Section 22E paragraph (3)
UUD 1945 only determines, " General election participants to vote
members of the People's Representative Council and members of the House of Representatives
The area is a political party ". As for the political parties ' requirements
as Election participants or other terms, it is the policy
forming the Act (DPR and President);
Paragraph In addition, Article 15, Section 16, and Article 17 of the paragraph (2) and verse (3) Act 8/2012
is the applicable section for all political parties that want to be participants
Elections. The designation of one party is qualified or unqualified
as the political party of the Election participant by the Election Commission is
an order of the Act that is the definition of the Constitution of 1945,
so that it is. not in conflict with the 1945 Constitution;
42
Consittion of the Constitutional Court Number 52/PUU-X/2012, dated 29 August 2012
among them has also considered that freedom, whether as
concept or action, is not without limit but always have
the possibility to be limited solely in respect of
