Key Benefits:
VERDICT Number 74 /PUU-XI/2013
FOR JUSTICE BASED ON THE DIVINITY OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at the rate first and last,
dropping the verdict in the Test case Act No. 15 of 2011
about the Organizing of the General Election against the Country Basic Law
Republic of Indonesia of 1945, submitted by:
[1.2] Name: Meyce Dwi Wahyuni, S. H .
Place, Date Of Birth: Bengkulu, May 30, 1981
Work: Civil Servlet
Address: Center of the Padang Lekat Block C Number 13 Market
Ujung Kepahiang, Bengkulu
In this regard by the Special Power Letter dated 1 July 2013 authorized the Arief Ariyanto, S.H., Supriyadi Seimagined, S.H., Tatang M. Ali Husna, S.H., Jahrudin, S.H., Aswan Ghazali, S.H., Gusti Randa, S.H., M.H., Iwan Nurdin, S. IP, Miki Abe, S.H., Zamaah Sari, S. IP, Kurnia Yulianto, S.H., Nety Rusiningsih, S. IP, Cushi Mayasari Hakim, S. Kom, Maya Tauriana, S. Ag, and Iwan Rasno, S.H., All of them are Women's Constitutional Rights Defenders incorporated in The team Advocacy of the Alumni Family of the Muhammadiyah University of Yogyakarta (KAUMY) DKI
Jakarta, which chose the law domicile on Radio Road In Number 43 South Jakarta, which acted either individually and together for and above. Provider name
power;
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Next is called as ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The applicant;
Heard the applicant's description;
Checking the applicant's evidence;
2. SITTING LAWSUIT
[2.1] In a draw that the applicant submitted a request with a letter
an application dated 5 July 2013 accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) on the date July 9, 2013 based on
The deed of Accepting File Request Number 364 /PAN.MK/ 2013 and has been noted in
The Constitutional Case Registration Book with No. 74 /PUU-XI/2013 on July 25
2013, which has been corrected with Application is dated September 5, 2013 and
accepted in the Court of Justice on September 5, 2013, which in
outlines the following items:
A. Authority Constitutional Court 1. That under the provisions of Article 24 of the paragraph (2) of the Constitution of 1945, reads:
"The judiciary is carried out by a Supreme Court of Justice and the body
The judiciary is under it in the general judicial environment,
religious judicial environment, military judicial environment, judicial environment
state enterprises, and by a Constitutional Court ".
2. That the provisions of Article 24C paragraph (1) of the Constitution of 1945, declare: " The Court
The Constitution of the authorities prosecute at the first and last level that
The verdict is final to test the Act against the Invite-
Invite Basic, severing the country agency's authority dispute
its authority is granted by the Basic Law, severing the dissolution
political parties, and severing disputes about the results of the general election ".
3. That the provisions of Article 10 paragraph (1) of the Law Number 24 of 2003
about the Constitutional Court (proof of P-3), as amended
ATTENTION: A copy of this ruling is not for and cannot be used as a reference The official or the evidence. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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with Act No. 8 of 2011 on Changes to the Invite-
Invite Number 24 Year 2003 (hereafter called Act The Constitutional Court,
proof of P-3A), reads: " Constitutional court authorized to judge on
first and last level the verdict was final for:
1. testing the Act against the Republican Basic Law
Indonesia Year 1945.
2. Severing the jurisdiction of the state agency's authority
provided by the State Basic Law of the Republic of Indonesia Year
1945.
3. Cut the dissolution of the political and
4. broke the dispute about the result of the general election ".
4. That due to the Election Organizing object of the Election Organizing Act
General against the 1945 Constitution, then the Constitutional Court is authorized to
conduct the testing of the Act with the 1945 Constitution. B. Legal Position (Legal Standing) Petitioner
1. That under the terms of Article 51 of the paragraph (1) of the Constitutional Court Act
states, " The applicant is the party and/or its constitutional obligation
is harmed by the enactment of the Act, i.e.
a. Individual citizen of Indonesia;
b. the unity of the indigenous law society as long as it is still alive and in accordance with
The development of the people and principles of the Republic of the Republic of Indonesia
which is set in undang-Undang;
c. public legal entity or Private;
d. state agencies ".
2. That the applicant is an individual citizen of Indonesia, which
under the provisions of Article 28C paragraph (2), Article 28D paragraph (1) and paragraph (3), Article 28H paragraph (2) and Article 28I paragraph (2) of the 1945 Constitution are granted consittional rights to
advance herself to build society, nation and country, the right to
get recognition, guarantee, protection and fair legal certainty
as well as the same treatment before the law, the right to get
the same opportunity in Government, the right to get
ATTENTION: A copy of this ruling is not And it cannot be used as an official reference or a tool of evidence. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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special ease and treatment to obtain the opportunity and benefits
in order to achieve equality and justice, right to be free of
the discriminatory treatment of any basis and the right to
obtain protection against the discriminatory treatment
such.
3. That the Constitutional Court has given the definition and constraint
cumulative respect of the rights and/or constitutional authority arising,
due to the enactment of an Act according to the Decree of the Court
Constitution Number 006 /PUU-III/2005 and Putermination Number 11 /PUU-V/2007, which
must meet the following terms:
a. That there is a constitutional right granted by the 1945 Constitution, that is
the right to advance itself to build society, nation and
Country, the right to gain recognition, assurance, protection and
the legal certainty of which fair as well as equal treatment before the law,
the right to get the same opportunity in Government, right
to get special ease and treatment to obtain
equal opportunity and benefits to achieve equation and
justice, the right to be free of the treatment of the discriminating over
any basis and the right to obtain protection against such treatment
pursuant to Section 28C of paragraph (2), Section 28D paragraph (1) and paragraph (3), Section 28H paragraph (2) and Article 28I of paragraph (2) UUD
1945;
b. That with the provision of Article 6 of the paragraph (5) of the Act
a quo that reads " the membership composition of the KPU, Provincial Commission, and the KPU
District/City pay attention to the representation of the women at least-
A lack of 30% " has harmed the applicant ' s constitutional right to
advance itself in favor of building society, nation and country, rights
to gain recognition, assurance, protection and legal certainty
the fair and the the same treatment before the law, the right to
get The same opportunity in the Government, the right to
get the special ease and treatment to obtain
ATTENTION: A copy of this ruling is not for and cannot be used as an official referral or evidence tool. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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The same opportunities and benefits to achieve the equation and
justice, the right to be free of any discriminatory treatment of
any basis and the right to gain protection against the treatment
that is discriminatory, where the applicant is the only
woman in the election process KPU Kepahiang County passes
The top 10 is not passed by KPU Bengkulu Province without any reason which
clearly whereas the a quo section has determined that the composition membership
KPU should pay attention to women's representation at least
30%.
4. Based on the description above, the applicant argues that
The applicant has a legal position as the applicant in the application
test of the Act against the 1945 Constitution.
C. The Reasons For Filing A Material Test For Materiel 1. That Article 6 paragraph 5 of the a quo of contrary to Section 28C
paragraph (2), Article 28D paragraph (1) and paragraph (3), Article 28H paragraph (2) and Section 28I paragraph
(2) The Constitution of 1945 because has harmed the constitutional right of the applicant to
advancing itself for the sake of building society, nation and State, the right to
gain recognition, guarantee, protection and fair legal certainty
as well as the same treatment before the law, the right to get
same opportunity in Governance, the right to get
ease and treatment special to obtain the opportunity and benefits
in order to achieve equality and justice, the right to be free of
the discriminatory treatment of any basis and the right to
obtain protection against The treatment is discriminatory;
2. That Article 6 of the paragraph (5) of the a quo reads "The membership of the membership
KPU, Provincial KPU, and the Regency/City KPU are concerned representation
females at least 30%".
3. That in this case, the applicant has a constitutional right guaranteed by
the Constitution of 1945 as follows:
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paragraph 28C paragraph (2) UUD 1945, "Everyone has the right to advance himself
in fighting for his right to be entitled. collective to build
society, nation and country "
Article 28D UUD 1945:
-Verse (1),"Everyone is entitled to recognition, assurance, protection and
fair legal certainty, as well as the treatment of the same in front of the law "
-Verse (3)," Each citizen is entitled to a similar opportunity
in government ".
The paragraph 28H paragraph (2), " Everyone is entitled to an ease and
special treatment to obtain the opportunity and equal benefits
to achieve equality and justice ".
The passage of Article 28I paragraph (2), " Everyone is entitled to be free of any kind of treatment
discriminatory on any basis and entitled to receive protection.
against that discriminatory treatment it is ".
4. That based on the legal fact, the provisions of Article 6 of the paragraph (5) of the Act a
quo as section affirmative action has generated legal uncertainty
for the applicant as a candidate for the Election Commission County
Kepahiang Period 2013-2018.
5. That the uncertainty of the law occurred as a result of a multitapma in that the phrase notices in Article 6 of the paragraph (5) of the Act a quo, the applicant assumes that the phrase is paying attention to the representation of the female at least 30%.
it is an obligation to be held in absolute,but the Bengkulu Propinsi General Election Commission views the article
notices there is no obligation nor should there be women in the composition
KPU membership
6. That the applicant assumes Article 6 of the absolute (5) is absolutely exercised because
is the constitutional mandate and mandate listed in Article 28H
paragraph (2) of the Constitution of 1945. which reads, "Everyone is entitled to
ease and special treatment to obtain opportunities and benefits
The same is to achieve equality and justice ".
ATTENTION: A copy of this ruling is not for and cannot be used as an official referral Or evidence. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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7. That the guarantee of getting the special ease and treatment to
obtain the same opportunity is in order to achieve the equation
and justice applies to any citizen including female, treat
special applies to citizens who have experienced inequality
(discrimination), both in opportunities, access and impact.
8. That the rules that contain special treatment to obtain the opportunity
and the same benefits are not the first and the only one with
the existence of the Act of Number 15 Year 2011. Act Number 21
In 1999 on Special Autonomy For the Province of Papua was also
affirmation of the mechanism of special treatment, in this case for the people
the origin of papua. This particular treatment is a form of positive discrimination as
a correction to the discrimination that they have during this time is natural.
9. That taking a temporary special action to realize the subtantif
is a state obligation.
That setting about the need for special treatment or special action
while in order to realize gender equality is a mandate
Act No. 7 of 1984 on Ratification of the Convention
Elimination of All Forms of Discrimination Against Women (Convention
Elimination of All Forms Discrimination Against Women, CEDAW). Ratification
an international convention demands a party state (state parties) for
integrating all the principles listed in the convention to
in its national law.
That CEDAW oblige. party states to provide the device and
make real results to encourage respect, fulfillment and
human rights protection for women, meet the test
eligibility (due diligence); as well as harmonization convention into the legal system
domistic. Additionally, CEDAW also confirms the state's obligation to
conduct affirmation, including temporary special treatment as
instruments for addressing women's gender problems.
ATTENTION: A copy of the this verdict is not for and cannot be used as an official reference or evidence tool. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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That Section 4 of the paragraph (1) and paragraph (2) CEDAW require the party state to
remove the current discrimination or at times then by taking
special steps. Special treatment as set forth in
Article 6 of the paragraph (5) Act No. 15 of 2011 is a form of treatment
specifically as mandated by CEDAW
That Section 4 of the paragraph (1) CEDAW mentions " The formation of the regulations-
rules and conduct temporary special actions by countries
parties aimed at accelerating de facto equality between men
and women, not considered as discrimination as affirmed
in this convention, and at all must bring the consequences
maintenance of non-equal or separate standards, then
The rules and actions are mandatory to be terminated if the goal
equation of opportunity and treatment has been reached.
• That Article 7 of the CEDAW mentions " the countries are required to take
appropriate measures to remove discrimination against
women in political life and the life of their countrymen,
in particular guarantees the for women on the basis of equality with men,
rights
-for vote in all political and public agenda and
ability to be selected in selected institutions
society
-to participate in government policy formulation and
execute all Government functions at all levels
-to participate in non-governmental organizations and societies
governments related to public and political life
countries.
10. That the 30% minimum quota legal basis is MPR Decree Number
VI/MPR/2002 on the Recommendation Report of the MPR Decision by
President, DPR, DPA, BPK, MA at the 2002 MPR Annual Session that
recommends " Create specific policies, regulations and programs for
ATTENTION: A copy of this ruling is not for and cannot be used as an official referral or evidence tool. For more information, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia, Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id
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increasing representation of women in sender institutions
decisions by a minimum amount of 30% as a follow-up from Article 28H
paragraph (2); Act No. 7 of 1984 Section 4 paragraph (1), Invite-
Invite Number 12 Year 2003 Article 65 paragraph (1).
11. That based on United Nations research the UN guarantees
the law in the form of special measures while listing
a clear number (at least 30%) is essential because of the amount
minimum 30% (three For example, the critical mass for
allows for a change. Thus there is a target that
must be reached and can be measured as a result of a change. An
critical mass will bring the impact on the quality of the decisions taken
in public institutions. The 30% amount is set to avoid
the dominance of one of the sexes in the political institutions that
formulating public policy
12. That temporary special measures should not be considered discrimination,
but rather a correction, assistance and compensation against the treatment and
unfairly experienced women for centuries, with the intent
to accelerate It's a "de facto" equation between representation
female and male. This special action is temporary, for
accelerating substantive equality between women and men. That is,
If there is any equality, this particular action must be stopped.
13. That female quotas are required due to a set of arguments (Hanna
Pikkin, The Concept of Representation, 1967) as follows:
Women represent half of the population and have a right for half
seats (justice argument);
Women have different experiences than men (biological
and social) represented (experience argument). In line with
this female argument can enter a position of power because they
will be bound in different politics.
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Women and men have conflicting interests so
men cannot represent women (Interest group argument)
The female politician represents an important role model encouraging women
others to follow. The core idea behind electoral gender quotas is
recruiting women into political institutions and ensuring that
women are not isolated in political life.
14. That enacting the same legal provisions over two states
that is not the same is in the selection process and the feasibility test and the propriety
member of the KPU, where the woman who has been discriminated against during the
centuries and new into a political world that has capital
limited knowledge and insight must compete with men-
men who have long been in the political world and already have knowledge
and Past insight is certainly not fair
15. That to guarantee affirmative action and legal certainty against
women, should be made a separate model or standard application
is different between men and women in the KPU member selection process,
where Men contested 70% and women for 30%.
16. That because of the absence of a separate model or standard application
in contrast to the KPU member selection process causing women to be
always discriminated against and legal certainty will never be achieved
due to the stigma The past is likely to discredit women.
17. That not all Election organizers understand the purpose of the invite-
invitation made so it often creates a different legal interpretation
, the selection of words that means double in
laws can be Creates a different interpretation.
The application.
18. That the phrase notices in Article 6 of the paragraph (5) of the Act a quo is considered to be less clear, less assertive, meaning double that it has been
leading to the multi interpretation of the passage in which it is
The legal uncertainty for the applicant
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19. That the Constitutional Court in the Decree Number 22-24/PUU-VI/2008 has
stated that the policy regarding the ideals of 30% female quota in
the political field is constitutional.
20. That according to the applicant Section 6 of the paragraph (5) of the a quo Act has been
given rise to the uncertainty of the law and has led to it
a different treatment while according to the applicant section a quo instead
aims to provide special ease and treatment to
obtain the same opportunities and benefits in order to achieve the equation
and fairness. According to the applicant of various interpretations that are not
the constitution has led to the applicant and may also be a people
Indonesian women were harmed in the existence of article a quo due to the fact
Article 6 of the paragraph (5) Act No. 15 Year 2011 on Organizing
The General Election is very easily ignored and is deemed to have no
binding legal powers when section a quo is clearly an
implementation of the Article 28H paragraph (2) UUD 1945.
21. That one is the reason for the applicant to follow the selection
member of the Kepahiang Regency KPU is due to be inspired by Article 6
paragraph (5) of the Act a quo which according to the applicant is highly accommodating
The representation of women in the composition of KPU membership such as
in the representation of women in the composition of the legislative membership to
fill the seats of the House, DPD and DPRD, but the fact that a quo is precisely
interpreted another by the selection team and members of the KPU so it caused
The applicant failed was selected to be a member of the KPU County Kepahiang.
22. Therefore, according to the applicant to provide legal certainty and
protect the rights of Indonesian women then the Court must declare
Section 6 of the paragraph (5) Act No. 15 of 2011 on Election Organizers
General is conflicting with the 1945 Constitution as long as it is not defined
"meets the representation of women" D. Conclusion
That based on the above description, it can be concluded that:
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Article 6 paragraph (5) Law No. 15 Year 2011 on Election Organizers
General has given illegal rights violations for Indonesian women,
presents an uncertainty laws, causing women to not
get special ease and treatment to obtain the opportunity
and the same benefits to achieve equality and justice, and
gives rise to the treatment of the discriminatory for Women
Indonesia. E. Petitum
Based on the items described above and the attached evidence, with
this applicant pleads to the Honorable Constitutional Court of Justice for
please provide the following verdict:
1. Grant the applicant's entire request;
2. Declaring Section 6 of the paragraph (5) of the Law No. 15 Year 2011 on
Organizing General Elections (State of the Republic of Indonesia of the Year
2011 Number 101, Additional Gazette of the Republic of Indonesia Number
5246) contradictory with UUD 1945 as long as it is not understood "meet
representation of women"
3. Declaring Article 6 paragraph (5) Act No. 15 of 2011 on Organizing
General Election (State Gazette of Indonesia 2011 number
101, Additional Gazette Republic of Indonesia Number 5246) no
have The power of the law is binding as long as it is not understood "meets
representation of women";
4. Ordering the loading of this ruling in the News of the Republic of Indonesia
as it should.
Or if the Constitutional Assembly of the Constitution argues otherwise, please a fair ruling-
be fair (ex aequo et bono).
[2.2] weighed that in order to prove its control, the applicant submitted
a proof-of-proof letter/writing device P-1 to proof P-10 as follows:
1. Proof P-1: Photocopy List of Signatures of Candidate Requirements KPU
Kepahiang Regency, April 19, 2013;
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2. Evidence P-2: Photocopy of the Election Commission of Bengkulu Provincial Election Commission
No. 11/Kpts/KPU-Prov-007/2013, dated 11 March 2013;
3. Evidence P-3: Photocopying News Show Pleno Test Results Health Test, Test
Psychology Candidate KPU Regency Kepaihiang Number
07 /TIMSEL-KPU/KPH/V/2013, dated 13 May 2013;
4. Proof P-4: Photocopying News Of The Meeting Of The Plenary-name Meeting Of The Names Of Candidates
Members Of The KPU County Members Who Pass The Administration Number
04 /Timsel-KPU/KPH/IV/2013, 22 April 2013;
5. Proof P-5: Photocopy of the Electoral Commission Number
47 /Kpts/KPU/Year 2013 on the Guidelines for the Implementation of Selection
Member of the Provincial KPU and KPU Regency/City All Indonesia;
6. Evidence P-6: Photocopy of the Election Commission Regulation No. 02 of 2013
on Selection of the Members of the Provincial Election Commission and
The District/City Elections Commission, set to date 11
January 2013;
7. Evidence P-7: Photocopy of the Joint Regulation Commission, Agency
General Election Supervising, and Honorary Council
Organizing General Election Number 13 Year 2012 Number 11
Year 2012 Number 1 Year 2012 on Code of Conduct Organizers
General Election, dated September 11, 2012;
8. Evidence P-8: Photocopy of the Bengkulu People's newspaper clippings;
9. Evidence P-9: Photocopy of the Central Election Commission of Bengkulu Number
522 /KPU-Prov-007/VI/2013, subject to the invitation of Inauguration, date
22 July 2013;
10. Evidence P-10: Photocopying Form Model EB Legislative Elections 2009 Election Region
Kepahiang 1 Subdistrict Ujan Mas Subdistrict Merigi yang
published KPU Kepahiang Province of Bengkulu;
[2.3] Stated that for shortening the description in this ruling, then
everything that is indicated in the news event news has been contained and
is an inseparable part of this ruling;
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3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant is
testing of the constitutionality of Section 6 of the paragraph (5) Act Number 15 of the Year 2011
on the Organizing of the General Election (the Republic of State Sheet) Indonesia Year
2011 Number 101, Additional Gazette of the Republic of Indonesia Number 5246,
subsequently called Act 15/2011) against Article 28C of the paragraph (2), Article 28 of the paragraph (1) and paragraph
(3), Section 28H paragraph (2) and Article 28I of the paragraph (2) The Basic Law of the Republic of the Republic
Indonesia in 1945, subsequently called UUD 1945);
[3.2] weighed that before considering the subject matter,
The Constitutional Court (hereafter called the Court) first would
consider the following:
a. The Court's authority to prosecute a quo;
b. (legal standing) Applicant;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution, Section 10 paragraphs
(1) letter a Law Number 24 of 2003 on Constitutional Court
as amended by Law Number 8 of the Year 2011 on
Changes to the Law Number 24 Year 2003 concerning the Court Constitution
(sheet State of the Republic of Indonesia Year 2011 Number 70, Additional Sheet
State of the Republic of Indonesia Number 5226, subsequently called Act MK), Article 29 paragraph (1)
letter a Law No. 48 Year 2009 on the Power of Justice
(Sheet of State of the Republic of Indonesia of 2009 Number 157, Additional Sheet
State of the Republic of Indonesia No. 5076), one of the constitutional authorities
The court is testing the Act against the Basic Law;
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[3.4] weighed that because the applicant's request was testing
constitutionality of Article 6 of the paragraph (5) of the 15/2011 Act against UUD 1945, then the Court
authorized to prosecute The applicant a quo;
The Legal Standing (Legal Standing) the applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act and
The explanation, which may act as the applicant in the testing of an Invite-
Invite against UUD 1945 is those who consider rights and/or
The constitutional authority is harmed by the enactment of the Act which
is required for testing, that is:
a. Individuals in Indonesia (including groups of people who have
same interests);
b. the unity of the indigenous law society as long as it is still 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 UUD 1945
must explain and prove first:
a. The name of the applicant is in section 51 of the paragraph (1)
MK bill;
b. the absence of the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the testing Act;
[3.6] weighed that of the Court since the Decree No. 006 /PUU-III/ 2005,
dated May 31, 2005 and Putermination Number 11 /PUU-V/2007, dated September 20
2007 and subsequent rulings have established that the loss of rights and/or
constitutional authority as referred to in Article 51 of the paragraph (1) The MK Act
must meet the five terms, namely:
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a. the rights and/or constitutional authority of the applicant given by UUD
1945;
b. the rights and/or constitutional authority by the applicant is deemed to be disadvantaged
by the enactment of the testing Act;
c. the rights and/or constitutional authority should be specific and
actual or at least any potential that according to reasonable reasoning can
is confirmed to occur;
d. The causal link between the loss is referred to
the Act is being moveed;
e. It is possible that by the request of a request then the rights loss
and/or the constitutional authority as postured will not be or no longer
occurs;
[3.7] Draws that under the provisions of Article 51 of the paragraph (1) MK statutes and
terms of rights and/or constitutional authority as described
above, subsequently the Court will consider the legal position (legal
standing) of the applicant in accordance with the description The applicant in his request and the evidence-
of the evidence submitted;
a. The applicant is an individual of Indonesian nationals who are involved in the process
selection as a member of the KPU of Kepahiang County. The applicant is the only
woman who passed the selection as a member of the KPU of Kepahiang County which
entered in the top 10, but Bengkulu Provincial KPU did not pass the applicant
for no apparent reason;
b. The applicant assumes that its constitutional rights as set forth in
Article 28C paragraph (2), Section 28D paragraph (1) and paragraph (3), Section 28H paragraph (2) and Article
28I paragraph (2) of the 1945 Constitution are harmed by the enactment of Article 6 of the paragraph (5) of the Act of 15/2011, which
stated, "Composition of KPU membership, Provincial KPU, and KPU
District/City pay attention to women's representation at least 30%
(thirty percent)";
c. According to the applicant composition of the membership of the KPU, Provincial KPU, and KPU
District/City must pay attention to the representation of the women at least-
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A lack of 30% (thirty percent);
[3.8] Draws that based on the applicant's postures of legal position
is associated with Article 51 of the paragraph (1) of the MK Act, as well as the Court ruling as
described above, according to the Court there is a causal relationship (causal verband) between the Applicant's loss with the enactment of Article 6 of the paragraph (5) of the Act of Law. 15/2011 which
dimohonkan testing. Based on that assessment and legal considerations,
according to the Court of Applicant has the legal position to submit
a plea a quo;
[3.9] Weighed That By because the Court of competent authorities prosecuted appeals.
a quo and the applicant have a legal position to apply for a quo
then the next Court will consider the subject;
The subject of the plea
[3.10] weighed that the applicant in the subject of his application submitting
the testing of the constitutionality Section 6 paragraph (5) of the Act of 15/2011, which states, "Composition
membership of KPU, KPU Province, and KPU District/City pay attention
representation of women at least 30% (thirty percent)" contradictory
with Article 28C of paragraph (2), Article 28D paragraph (1) and paragraph (3), Section 28H paragraph (2) and Article 28I paragraph (2) of the Constitution of 1945, for the reasons that are listed below:
a. Article 6 of the paragraph (5) of the Act of 15/2011 raises legal uncertainty for the applicant
as a candidate member of the Election Commission of the Kepahiang County Period 2013
-2018. The uncertainty of the law is due to the phrase "noticing" in Article 6 of the paragraph (5) of the Act a quo is less clear, less assertive, and meaningful
double, resulting in a multitafsir. According to the phrase "noticing
representation of women at least 30%" in Section 6 of the paragraph (5) Invite-
Invite a quo is an obligation to be held in absolute, however
The Provincial Election Bengkulu sees no obligation or no liability
there must be a female composition in the membership of the KPU;
b. Article 6 of the paragraph (5) of the absolute 15/2011 Act must be implemented because it is a mandate
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and constitutional mandate as set in Article 28H paragraph (2) of the 1945 Constitution, which
states, "Everyone is entitled obtain ease and special treatment
to obtain the same opportunities and benefits in order to achieve the equation
and justice ";
c. The guarantee to gain special ease and treatment to obtain
equal opportunity is in order to achieve equality and justice
applies to any citizen, including women, special treatment applies
for citizens who have experienced inequality (discrimination), both in
opportunities, access, and impact;
d. To guarantee affirmative action and legal certainty against women,
should be made a separate model or the application of a different standard between men
and females in the KPU member selection process, i.e. men Fight for
70% and women for 30%. In the absence of a separate model
or application of different standards in the KPU member selection process cause
women will always be discriminated against and the legal certainty will never be
achieved due to the stigma of the past that tends to discredit women;
e. Article 6 of the paragraph 6 (5) of the Act of 15/2011 has led to a legal uncertainty and
causes a different treatment, whereas according to the applicant section a
quo aims to provide special ease and treatment.
obtain the same opportunities and benefits to achieve the equation and
justice;
f. Based on these reasons above, the applicant pleads to the Court
The Constitution for Article 6 of Article 6 (5) of the Act of 15/2011 was declared contrary to the Constitution
1945 and has no binding legal force as long as it is not defined
"meets female representation";
[3.11] Stating that to prove its control, the applicant submitted the tool
a proof of the letter/writing marked P-1's evidence until the P-10 evidence;
Court opinion
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[3.12] Draw that before considering the subject matter,
The court needs to quote Article 54 of the MK Act stating, Constitutional Court
may request the captions and/or meeting treatises with respect to the application
which is being examined to the People's Consultative Assembly, DPR, Council
The Regional Representative, and/or President " in conducting testing of a Invite-
Invite. In other words, the Court may request or not ask for the information
and/or the meeting treatises with respect to the application being checked
to the People's Consultative Assembly, the House of Representatives, the House of Representatives
The area, and/or the President, depends on the urgency and relevance. Because
legal issues in the a quo request are clear, the Court sees
there is no urgency and relevance for asking for the description and/or meeting treatises from
People's Consultative Assembly, Council People's Representative, House of Representatives
Regions, and/or Presidents, so the Court breaks the a quo without
first hearing the state agency referred to;
[3.13] Balanced That Subsequent Court would considering about
the constitutional issue in question by the applicant Whether the phrase
"pays attention to the representation of women at least 30%" in filling
members of the KPU, provincial KPU, and district/city conflicts in conflict with the 1945 Constitution
? [3.14] Draw that before the Court considers the constitutional issue
it, the Court first considers things as follows:
a. Affirmative action is the law and/or policy that requires
be prepared to a particular group of inequalities or
injustices by providing special treatment in a specific case for
achieves equality and a more proportionate representation in diverse
institutions and offices. It is intended that certain groups/groups
(gender or profession) gain equivalent chances with
groups/other groups in the same field. Thus the application
affirmative action, in particular gives a certain privileges to women
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in certain posts, for example filling KPU membership, provincial KPU,
and KPU county/city is for The value of the number of female members
in filling the post, thus the equivalent of the number of male members.
Application affirmative action, in particular the representation of women in charging
certain positions cannot be enforced regardless of the ability of
women themselves, because if it is done without notice
the ability of the female itself, instead of being able to uphold and
the dignity of women as the original purpose affirmative action, but can be
resulting in the opposite;
b. Affirmative action is a positive discrimination treatment (positive discrimination)
which is done to accelerate the release of justice and equality that
those actions have been guaranteed in the constitution as set in Article
28H paragraph (2) of the 1945 Constitution, which states, "Everyone gets ease and
special treatment to obtain the same opportunity and benefits
achieve equality and justice". However, the 1945 Constitution did not provide
a certain limitation or criteria until the extent of the legal policy affirmative
action was done. The settings regarding the affirmative action ,
have previously been set up in Article 46 of the Law No. 39 of 1999
on Human Rights, which states, " The general election system, the party,
The selection of the legislative body, and the appointment system in the executive field,
judiciary, must ensure the representation of women according to the requirements specified ".
By the constitution and the Act 39/1999 above does not provide a specific limitation
expressly, specifically representation of women in certain posts,
determining the requirements or limitations of such laws. is a policy that is
open (opened legal policy) which is the authoring authority of Invite-
Invite to determine;
c. Regarding the affirmative action as described above the Invite-
Invite has also set about representation of women in charging
membership of the representative agency is at least 30%. The provisions
are set up in Section 8 of 1 letter d, Section 53, and Article 55 of the Act
Number 10 of 2008 on the General Election of the People's Representative Council,
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The Regional Representative Council, and the Regional People's Representative Council (subsequently
called Act 10/2008), stated,
invalid Article 8 (1) The political party may be an Election Participant after meeting the requirements:
... d. Includes at least 30% (thirty-perhundred)
representation of women in central political party affairs;
Section 53 The list of candidates as referred to in Article 52 contains the most a little 30% (thirty perhundred) female representation.
Section 55 (1) The names of candidates in the list of candidates will be referred to in
Section 54 is compiled based on the order number;
(2) On the list of candidates as referred to by paragraph (1), in every 3 (three) people will be expected to be at least one (one) female candidate;
d. The KPU is one of the organizers of the general election (Election) for
to fill the posts of Representatives, DPD, and DPRD, the President and Vice President, as well as
Governor/Vice Governor, Regent/Vice Regent, and Mayor/Deputy Mayor.
Direct, public, free, secret (luber),
and fair (jurdil) elections can be realized if an Election organizer has
high level of competence, capability, and integrity skills and the ability to provide a new level of performance. understand and
respect the civil and political rights of the citizens, cause organisers
An election that does not meet the defined terms as such in
over potentially impeding the quality of a qualified Election;
Based on that provision, the Act is forming in implement
affirmative action representation of women for agency membership charging
representatives have implemented two policies, which is the condition to be candidates and
placement in the defining list of candidates. The choice of the candidate. Article 55 of the Law
10/2008 which puts at least one female among three people
will be highly influential to the election of female candidates in charging
membership of the representative institution because of Law 10/2008 using the number system.
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Nevertheless, the Constitutional Court in the Decree Number 22-24/PUU-VI/2008,
December 23, 2008 has decided that determination of the institution member seats
the representative is based on the most sound system not based on the order number
the candidate. The verdict of the Constitutional Court Number 22-24/PUU-VI/2008, December 23,
2008 was reconsidered in the Number 20 /PUU-XI/2013, dated 12 March 2014, at 16:08 WIB contained in paragraph [3.14] figure 11, which In its view, among other things, " That based on the legal considerations of Number
22-24/PUU-VI/2008 which stated that the determination of the selected candidate should be based
on anyone the candidate of the representative institution is gets the most votes
sequentially, then placement The female candidate and candidate for the institution
representative at the smallest number or the initial order number to further ensure the electability
Women for entry to the representative agencies have lost their relevance because
The determination of who is a representative institution is no longer defined by
number of order but by the highest number of votes, so that the representation of women
at least 30% (thirty per hundred) [vide Article 55 of the Act of 8/2012] is an absolute condition
for the political party that qualified to be a general election participant for
nominating the party cadres and at once to keep the chance of choice
women to participate in representative agencies, but not an absolute condition
to determine that there must be a minimum of 30% (thirty per hundred) women in
representative agencies, as all in the end go home to the voters for
determines its options. In accordance with Article 56 of the paragraph (2) of the Act of 8/2012,
it is possible that a political party in an electoral region proposes 100%
(one hundred per hundred) will be a candidate for the entire representative institution. is
The female to be determined entry to the representative or her or her
is not determined by the order number but by the most votes ". Based on the verdict
Constitutional Court above then the choice of women in charging
the representative agency membership has changed the defining policy
the choice based on the order number becomes based on vote vote;
[3.15] Draw that based on that consideration above, the next Court
will consider the Applicant ' s Section 6 paragraph (5) of the 15/2011 Act that states,
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" Composition of membership of KPU, KPU Province, and KPU Regency/City pay attention
female representation At least 30% (thirty percent) " contrary to
Article 28C paragraph (2), Article 28D paragraph (1) and paragraph (3), Section 28H paragraph (2) and Section 28I paragraph (2) UUD
1945?
The legal issue is regrettable by the applicant in the a
quo is the same as the legal issue in the request that has been severed
by the Court in Decree Number 22-24/PUU-VII/2008, date 23 December 2008,
which is both issue affirmative action, a female representation for
a post. The difference is, the request in the Putermination Number 22-24/PUU-
VII/2008, December 23, 2008 is for the charging of the member of the institution
representative through the electoral mechanism, whereas in the a quo for
charging The membership office of the KPU, provincial KPU, and district/city PU through
the selection mechanism performed by a selection team. Due to the legal issue
the applicant a quo is equal to the legal issue in Number 22-
24 /PUU-VI/2008, December 23, 2008, then the Court needs to quote and
make it a consideration. The Court in the plea of a quo, which in its legal considerations in paragraph [3.15.1], among others, considers:
" That along the threshold quota is 30% (thirty per hundred) and must one woman of each of the three candidates legislative members for women and men is judged enough adequate as an initial step to give women opportunities on one side, while on the other, offer to the public/voters to assess and test women ' s accetability entering the political realm which is not solely due to Her status as a woman, but also from the capacity and capacity as a legislator, as well as its place according to Indonesian culture. A quota of 30% (thirty per hundred) and one female candidate from each of the three candidates constitutes positive discrimination in order to balance the representation of women and men to be legislators in the House of Representatives. People, the Regional Representative Council, and the Provincial/Kabupaten/City Regional Representative Council. A 30% (thirty per hundred) quota for female candidates is confirmed by Article 55 of the paragraph (2) of Law 10/2008 for guarantees that give women the chance to be greater in the general election;
That to improve the position of the female candidate, the women's choice is greater than that. women in politics are not solely dependent on legal factors, but also cultural factors,
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ability, proximity to the people, religion, and degree of community confidence over female legislative candidates, as well as consciousness That's growing up for the role of women in politics. Related to the Bhinneka Single Ika principle in a plural society such as Indonesia, then each individual's choice corresponds to the knowledge and belief must remain appreciated once there is a difference of one with the other";
Such considerations have provided a clear direction that the granting of quotas
at least 30% for female candidates in charging of the institution
representation as described above, is not absolute based on legal factors for
implements affimative action, but also must Cultural factors,
abilities, proximity to people, religion, and the degree of community trust
over a female candidate for a representative institution, as well as awareness
increased in the role of women. In politics. Thus
implementation of affirmative action for representative agencies. a quo is
affirmative action in the institutional KPU which is not a representative institution, but
an election organizer institution that requires competence and
professionalism as determined. On top. Thus, according to the Court,
giving a quota of at least 30% for female candidates in charging
membership of the KPU, provincial KPU, and district/city KPU is based on fulfillment
the requirements are indicated with a pass on the entire selection step that
is done by the KPU Member Selection Team, so that if the concerned pass
be a member of the KPU, provincial KPU, and district/city KPU may run the task
and its obligations Professionally. Based on the above legal assessment, according to
the court, the word "notices" contained in Section 6 of the paragraph (5) of the Act of 15/2011
cannot be defined that in the charging of KPU, provincial KPU, and KPU membership.
county/city must include representation of women at least
30% in absolute terms. However, due to affirmative action in
the charging of female membership in KPU member, provincial KPU, and KPU
district/city, if there is a woman who has passed all stages
selection and meet the same qualifications as the male candidate, whereas
female members have not been selected, then in such circumstances women
must first be a member of the KPU, KPU province, and the KPU (KPU). -District/City.
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Thus, according to the Court, the applicant's plea to the extent
regarding Article 6 of the paragraph (5) of the Act of 15/2011 is unwarranted. by law.
4. KONKLUSI
Based on the assessment of the facts and laws above, the Court
concludes that:
[4.1] The court is authorized to prosecute the applicant's plea;
[4.2] The applicant has legal standing (legal standing) to submit
plea a quo;
[4.3] The request of the applicant is unwarranted according to law;
Based on the Basic Law of the Republic of Indonesia in 1945,
Act No. 24 of 2003 on the Constitutional Court as it
amended with Act No. 8 of 2011 on Changes to the Invite-
Invite Number 24 Year 2003 on Constitutional Court (State Sheet
Republic of Indonesia 2011 Number 70, Additional Gazette Republic of the Republic
Indonesia Number 5226), and Act No. 48 of 2009 on Power
Judiciary (Indonesian Republic of Indonesia Gazette 2009 number 157, additional
sheet of state of the Republic of Indonesia Number 5076);
5. AMAR RULING
Prosecuting,
Declaring denied the applicant
So it was decided in a Meeting of Judge by nine
Constitutional Judge M. Akil Mochtar, as the Chairman of the Members, Hamdan
Zoelva, Arief Hidayat, Maria Farida Indrati, Harjono, Muhammad Alim, Anwar Usman, Ahmad Fadlil Sumadi, and Patrialis Akbar, respectively as Members, at on Monday, the ninth, September, year two thousand three , and pronounced
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in the Plenary Session of the Constitutional Court open to the public at Wednesday, twelfth date, March, year two thousand fourteen, finished pronounced at 16.26 WIB, by seven Judges The constitution is Arief Hidayat as the Chief of the Members, Maria Farida Indrati, Harjono, Muhammad Alim, Anwar Usman, Ahmad Fadlil Sumadi,
and Patrialis Akbar, respectively as Member, accompanied by Sunardi as
Panitera Replacements, as well as attended by the applicant/their power, Government or yang
represents, and the People ' s Representative Council or that represents.
CHAIRMAN,
ttd.
Arief Hidayat
MEMBERS,
ttd.
Maria Farida Indrati
ttd.
Harjono
ttd.
Muhammad Alim
ttd.
Anwar Usman
ttd.
Ahmad Fadlil Sumadi
ttd.
Patrialis Akbar
PANITERA REPLACEMENT,
ttd.
Sunardi
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