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Test The Material Constitutional Court Number 70/puu-X/2012 Year 2012

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 70/PUU-X/2012 Tahun 2012

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RULING Number 70 /PUU-X/2012

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] That prosecuting constitutional matters in the first degree and last,

dropping the ruling in case of Test Number 29 of the Year

2007 on the Government of the Provincial Special Region of Jakarta As

The Capital of the State of the Republic of Indonesia against the Act Base

The State of the Republic of Indonesia in 1945, which was put forward by:

[1.2] 1. Name: Abdul Havid Permana

Address: Cipinang Asem RT/RW 005/004 East Jakarta

2. Name: Mohammad Huda Address: Rawamangun II Tengah RT/RW 003/006 Jakarta

East

3. Name: Satrio Fauzia Damardjati Address: Central Cliff RT/RW 005/003 Cilandak, Jakarta

South

In this regard by the Letter of Power dated July 12, 2012 gives power

to i) Muhammad Sholeh, S.H.; ii) Imam Syafii, S, H.; iii) Iwan Prahara, S.H.; iv) Samuel Hendrik Pangemanan, S.H., S.E.; and v) Abdul Holil, S.H., advocate at the law office "Sholeh & Partners" with address on Genteng Street

Muhammadiyah Number 2b, Surabaya, East Java, both individually and

together act for and on behalf of the power-giver;

Next is referred to as -------------------------------------------------------------------------------------

[1.3] Read the applicant's request;

Hearing the Applicant;

Hearing the Related People;

Hearing the Government;

Hearing expert adverts;

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Read the written caption of the People's Representative Council;

Checking the petitioner's evidence;

2. SITTING LAWSUIT

[2.1] A draw that the petitioners have applied for

dated July 13, 2012 which is accepted in the Constitutional Court of the Constitutional Court

(subsequently called the Court of Justice) on the 13th July 2012

based on the Certificate of Accepting File Request Number 258 /PAN.MK/ 2012

noted in the Book Registration of the Constitution with No. 70 /PUU-

X/2012 on July 16, 2012, which has been corrected by the request

dated July 31, 2012 which was accepted in the Court of Justice on the 31st

July 2012, outlines the following items:

A. Constitution of the Constitutional Court That under the provisions of Article 24C paragraph (1) the third change of Invite-

Invite Basic 1945 (then called UUD 1945) juncto Article 10 Invite-

Invite Number 24 Year 2003 on the Court The Constitution (next

called the MK Act), states that the Constitutional Court is authorized

to prosecute at the first and last level of which the verdict is final

to test the Act against the Basic Law, severing it

A dispute over the authority of the State Agency whose authority is provided by

UUD 1945, Severing The Dissolution Of The Political Party And Dissolving The Dispute

About The Result Of The General Election;

B. Legal Position (Legal Standing) Petitioner 1. That Section 51 of the paragraph (1) of the MK Act, states the applicant is the party

that considers the rights and/or its constitutional authority to be harmed

by the enactment of the Act, that is:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the unity state

The Republic of Indonesia that is set in Undang-Undang;

c. the public or private legal entity, or;

d. State agencies.

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2. The explanation of Article 51 of Article 51 (1) of the Act of MK states that in question

with "constitutional rights" is the rights set forth in the 1945 Constitution.

3. That the applicant is a special area citizen of Jakarta Capital (DKI

Jakarta) who paid the levy as well as taxes and had a number

subject of tax (NPWP).

4. That the applicant is a citizen of Jakarta who has had

the right of voting and has been registered as Elector in the Election of the Governor

& Vice Governor of DKI Jakarta Period 2012 s.d 2017 and has

used his election rights On July 11, 2012.

5. That the levy and tax paid by the applicant are

part of the original income of the area (PAD) DKI Jakarta where

the management must be done in an orderly, effective, transparent manner,

responsible for Public justice, efficiency,

patchiness and benefits are as great as the society.

6. That with the provision of article 11 paragraph (2) Invite-

Invite Number 29 Year 2007 on Regional Provincial Government

Special Mother of Jakarta As Capital of the Republic of the Republic

Indonesia (UU 29/2007) then it can be If there are no pairs

candidates who earn 50% more votes in the gubernatorial election of DKI

Jakarta on July 11, 2012, will be done round to two.

Dakan sucks the government budget of DKI Jakarta around Rp. 200

billion which are the result of the payment of the levy & tax of the Citizens of DKI

Jakarta also included the payment of the levy & tax of the applicant.

7. That the applicant feels the application of the a quo in the Election

The Governor & Vice Governor of Jakarta will harm the applicant

because the levy and tax paid the applicant should

be used for the the improvement of community base services and

development of a common infrastructure which is beneficial on

the public must be allocated to carry out the 2nd round

the selection of the Governor & Vice Governor of Jakarta in order to meet the

provisions of section a quo.

8. That application of Article 11 paragraph (2) Act 29 /2007according to the Ppetitioners

has eliminated the principle of equality in law (equality before the

law), in which the Applicant as a citizen of Indonesia Province

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DKI Jakarta should get the same treatment in

the law with Indonesian nationals domiciled in the province

others are related to the election of the Governor & Vice Governor. Where

Indonesian nationals in other parts of the province in the election

Governor & Deputy Governor applies the provisions of Article 107 paragraph (2) Act

12/2008 about the second change to the Law Number 32 Year

2004 about the Local Government that reads: " if the provisions

as referred to in paragraph (1) are not met, the candidate pair

regional head & regional vice principal obtained more votes than

30% of the total number of valid votes, the candidate of the candidate Its voice acquisition

The largest stated as the chosen couple ". With regard to

the applicant considers the constitutional right of the applicant

as set out in Article 28D of the paragraph (1) of the 1945 Constitution which

states; Everyone is entitled to the recognition, guarantee, protection

and fair legal certainty, as well as the same treatment in front of

the law.

9. That application of Article 11 paragraph (2) of Act 29/2007 according to the applicant

is highly Discriminative, in which Article 11 paragraph (2) of the Jakarta DKI Act

distinguates the treatment of fellow citizens in terms of

the election of the Governor & Vice Governor, which potentially harming the right

constitutional applicant given by Article 28I paragraph (2) of the 1945 Constitution

that reads: " any person is entitled to be free from the treatment that is

discriminatory on any basis and entitled get protection

against the discriminatory treatment it is "

10. That the applicant is concerned if Article 11 of the paragraph (2) of Act 29/2007 is not

annulled by the Constitutional Court, then the rights and/or authority

The Constitutional Court of the Applicant guaranteed the Basic Law of 1945

will be harmed by the the application of the a quo.

11. That the ideal of the Jakarta Governor's election must be democratic and

budget efficient. That by doing so under Article 11 of the paragraph (2) of the Act

29/2007, if there is no candidate for the candidate to receive a vote

50% more, the election must proceed to the second round, it

makes the Governor of the DKI Election. Jakarta is inefficient and wasteless

budget.

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12. That Jakarta Governor Election refers to the Act

No. 29 of 2007 about the Regional Provincial Government

Special Capital Jakarta As the State Capital of the Republic of the Republic

Indonesia and the Nomr Act 12 2008 on Change

To Two Law Number 32 Year 2004 on Governance

Regions.

13. That Article 11 paragraph (2) Law No. 29 of 2007 on

The Government of the Special Region of Jakarta Capital Province As the Capital

Unitary State of the Republic of Indonesia its formation is absolutely not

bases it on The Principles of the Act as

referred to in Article 6 of the Law Number 12 Year 2011.

14. That ideally if the Act 29/2007 set out about the intercession

Pilkada certainly does not set up just in one issue of designation

the candidate spouse was elected only in Article 11 of the Act 29/2007. As for

another step is submitted to Act Number 12 of the Year

2008.

15. That the applicant is aware that if Act 29 /2007is the Act

special means that it applies to "lex specialist derogat lex generalis".

But the question is whether false if the Act 29/2007 does not set

the issue Pilkada's winning designation? Whether there is an obligation

in Law 29/2007 should also arrange the designation of the winning pair

Pilkada Jakarta. There is already an Act No. 12 of the Year

nationwide that applies nationally including the Capital Jakarta.

16. That on one side of the Jakarta Governor's Election uses the basis

law Law Number 12 of 2008 on Change To

Two Acts 32 Year 2004 on Governance

The area on the other side also uses Bill 29/2007.

17. That the petitioners had nothing to do with the prospective pair

following the Pilkada DKI Jakarta, as the petitioners were not supporters of

or their sympathizers.

18. The applicant is highly interested in the establishment

the election of Governor of the Democratic Capital of Jakarta but also efficient

against the local government budget.

19. That Article 11 paragraph (2) of the Act 29/2007 is not singkron with Article 107

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paragraph (2) Act Number 12 of 2008 which states;

If the provisions as referred to paragraph (1) are not met,

spouse of the regional head of the region and the deputy regional head of the region

votes more than 30% (thirty percent) of the number of valid votes, the pair

the candidate whose majority vote is largest stated as the pair

the chosen candidate.

20. That Article 11 (2) of UnU 29/2007 forgot if the a quo is not

singkron with other Acts governing

specific stages of the regional head election.

21. That it could be a policymaker 29/2007 subterfuge the a quo Act at

make it in 2007 while the Act on Governance

The area was created in 2008. That Act

Number 12 of 2008 was a change of Act No. 32

in 2004 that it also remained unpruned with Article 11 of the paragraph (2)

Act 29/2007.

22. That Section 107 of the paragraph (2) of the Law No. 32 Year 2004

states; if the terms as referred to in paragraph (1)

are not met, the prospective spouse of the regional head and the deputy regional head

that obtained the vote more than 25% (twenty-five percent) of

The number of valid votes, the spouse of the candidate whose largest vote

is stated to be the chosen couple.

23. That is, in fact, a very clear disposition between Article 11 of the paragraph (2) of the Act

29/2007 with Act 32/2004 which had been changed to Act

No. 12 of 2008.

24. That provision is 30% more votes (Act No. 12

in 2008) if no candidate pair gets a 50% vote

more as a form of budgeting efficiency principle in the implementation

of the regional head election. Meaning there is a stage to be met with

the candidate pair if unable to get a 50% more votes as

the representation of the majority representation of the vote, then the 30% gain

is more valid is also already represents from the majority

voter support.

25. That the petitioners wish to please the applicant ' s materiel test

a quo must be immediately processed by the Constitutional Court. In order to be later

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there is a quick legal certainty in the implementation of the head election

the governor area of DKI Jakarta. Whether it ' s enough one round or two

round.

26. That if the applicant's plea is granted by the Court

Constitution, it means no longer the Pilkada Capital of Jakarta 2

round, if in the first round election (July 11, 2012) already exists

the spouse of the candidate who Got a 30% more vote. That means the Government

Area of DKI and the residents of Jakarta will benefit from the presence of efficiency

budget.

27. That the applicant believes in the provision of Article 11

paragraph (2) Act 29/2007. The constitutional rights of the petitioners have been

violated. Because the levy and tax paid by the applicant

is a part of the original income of the area (PAD) of Jakarta in

where the management in the municipal elections is not carried out

orderly, effective, transparent, be responsible for

paying attention to community justice, efficiency, propriety and benefits

that is as great as for society. Accordingly, the applicant

strongly felt his constitutional rights were violated and harmed

as guaranteed by the Constitution of 1945 in particular Article 28D of the paragraph (1)

and article 28I the paragraph (2) of the 1945 Constitution. As such, in the opinion

The applicant then the applicant has fulfilled the qualification

as it is referred to in the provisions of Article 51 of the paragraph (1) of the MK Act.

28. That next in the Constitutional Court Decree No. 006 /PUU-

III/2005 and Putermination Number 010 /PUU-III/2005 have determined 5 (five)

the terms of the constitutional loss as referred to in Article 51

paragraph (1) MK Act, as following:

a. the rights and/or constitutional authority granted by

UUD 1945;

b. the rights and/or the constitutional authority is deemed to have been

aggrieved by the enactment of the required Act

testing;

c. the rights and/or constitutional authority is

specific (special) and actual or at least any potential is

which according to reasonable reasoning can be certain to occur;

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d. Result of a causal link between the rights loss

and/or constitutional authority with the Act

on the testing of testing;

e. It is possible that by the request of a request

then the rights and/or constitutional authority that

is postured no longer occurred;

29. That based on these criteria the applicant is

the party with the cause of cause (causal verband) between

constitutional loss with the enactment of the Act

is being honed to be tested because of Article 11 paragraph (2) Act 29/2007 contradictory

with Article 28D of paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution.

30. That of the above arguments, the petitioners argued

that the applicant has a legal standing (legal standing) as

the party in the Act of testing against the Constitution of 1945.

31. That the applicant is concerned if Article 11 of the paragraph (2) of Act 29/2007 is not

annulled by the Constitutional Court, the Constitutional right of the Applicant

which guaranteed the Basic Law of 1945 factually and potential

is harmed by the presence of Article 11 of the paragraph (2) Act 29/2007.

C. Subject to 1. Article 11 of the paragraph (2) Act 29/2007 states;

1. The spouse of a candidate for Governor and Deputy Governor, who obtained

votes more than 50% (fifty percent) is designated as Governor

and the Deputy Governor of the United States.

2. In the case of no spouse the Governor and Deputy Governor

who obtained the vote as referred to in verse (1),

held the election of the Governor and Vice Governor of the second round

followed by the candidate of the candidate who earned the most votes

first and second in the first round.

3. Hosting the Governor and Deputy Governor

as in paragraph (1) and paragraph (2) are implemented according to

the requirements and conditions set out in the perinvite rule-

the invitation.

Next Constitution of 1945 reads:

Article 28D paragraph (1):

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Each person is entitled to the recognition, warranty, protection and

fair legal certainty, as well as the same treatment before

the law.

Article 28I paragraph (2):

"Everyone is entitled to be free of any kind of discriminatory

on any basis and is entitled to an

protection against that discriminatory treatment."

D. The Constitutional argumentation that Article 11 paragraph (2) of Act 29/2007 is contrary to Article 28D of the paragraph (1) and Article 28I paragraph (2) of the Constitution of 1945 1. That the unity state of the Republic of Indonesia as stated by

Article 1 of the paragraph (3) of the 1945 Constitution is a "state of the law". The

constituent of the Constitution of 1945 explains that the state of the Republic of Indonesia

is a state based on law (rechtsstaat) and is not based on

sheer power (machtsstaat). The term "rechtsstaat"

indicates that the 1945 Constitution of the Constitution used the concept of

the legal state in Germany in that period. Julius Sthal, a legal expert

Germany, mentioned that there are three legal states in the concept

"rechsstaat" that, two of them are "protection against human rights

man" and " rule must be based on the Bill

Basic ". While the ruling of the 1945 Constitution expressly stated that

the state of the Republic of Indonesia is not based on "sheer power"

or "machtsstaat" which in German contains the meaning of the country

it is run solely based on power, not based

over the law.

2. That the legal norm of Article 11 paragraph (2) of the Act 29/2007 appears once

ruling out the concept of the state of law, which appears to be the concept

machtsmoment, because the author of the Act makes the specificity

set in the Constitution is interpreted by an Act maker for

making the norm in Article 11 of the paragraph (2) Act 29/2007 specifying

DKI Jakarta from other areas without the basis of a clear constitutional rationality.

3. That the specificity mandated by the basic UUD should be defined

as a constitutional right to areas with background

culture, region characteristics and special history of the area.

For example, the special area The jogyot set in history

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the kingdom, it is reasonable if its special election gubernatorial election is not through

pilkada is sufficient to use the President's designation.

4. There is also a special area of Aceh in particular in the history of

the conflict of the government of Indonesia with GAM (Free Aceh Movement). Which

finally happens to be political compromises with GAM's consequences

then there must be a speciation as the local party allowed, because

GAM does not believe 100% against national parties. This can be us

read from the explanation of Law Number 6 of the Year 2011 on

Aceh Government which stated; " Memorandum of Understanding

(Memorandum of Understanding) between Government and Movement of Aceh

Independent of the Acehnese Signed on August 15, 2005 marks

a new flashback of the travel history of Aceh Province and its community life

towards a peaceful, fair, prosperous, prosperous state.

The thing that is understandable that The Memorandum Of Understanding is a form

a reconciliation of dignity to the social, economic,

and political development in Aceh is sustainable ".

5. That to convince the Court, the petitioners also added

the area's specificity is always behind the history and culture and

area characteristics, the petitioners show a rationalist in

Act No. 21 of the Year 2001 on Special Autonomy

The province of Papua explains; " The political decision of the unification of Papua

being part of the unity state of the Republic of Indonesia on its nature

contains a sublime ideals. But in reality the various policies

in the holding of government and centralised development

have not fully fulfilled the sense of justice, not yet fully

allowing for the welfare of the people, not yet. entirely

supports the establishment of law enforcement, and not yet fully

showing respect for human rights (human rights) in

Papua province, in particular the people of Papua. Those conditions

resulted in a gap in almost all sectors

life, especially in the field of education, health, economics,

political and social politics. Human rights violations, rights waiver

basic indigenous people and the presence of disagreements regarding history

The unification of Papua into the unitary state of the Republic of Indonesia is

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issues that need to be resolved. The problem resolution effort

has been seen as less touching the root of the problem and aspiration

Papuan society, thus triggering various forms of disappointment and

dissatisfaction.

6. That in the explanation Act 29/2007 is said to be

argument Article 11 verse (2) is " Governor and Deputy Governor of DKI

Jakarta as head of government of the Capital Region Special Region

needs to acquire legitimacy the strong of the people and the attention

the multicultural Jakarta citizen. Therefore, this Act

sets the election of the Governor and Deputy Governor of Jakarta should

obtain a voter vote support of more than 50% (fifty percent)

of the total number of valid votes to be specified. as Governor

and the Vice Governor-elect ".

7. That the multicultural Jakarta national argument in

the gubernatorial election must be 50% more to be set to be set as

the winner is very strange. The question is constitutionally what the difference is

the voice of a multicultural citizen with no? What it is

multicultural with a special area. Is the provincial capital of Jatim

(Surabaya), the capital of Central Java (Semarang) non-multicultural homogeneous

like Jakarta? In fact the hamipir is all multicultural.

The society. In the general election and the prevailing Pilkada is

one man one vote, it means one person one vote. Good old young, people

Madurean tribe, Batak, Bugis etc. remain one person one voice. So according to

the applicant argumentation was highly unreasonable in the glass

the constitutional eye.

8. That Jakarta's specialty is in managing the government

The petitioners strongly agree. For example, the mayor was not elected in

the selection of regional heads. Because there is also no city council

in Jakarta. Such consequences are not only in the staging of

Jakarta Provincial Government as autonomous, seat

Province of Jakarta as Capital of the Republic of the Republic

Indonesia, position of state representative foreign, and other institutions

other international, but also the characteristics of the problem that

encountered are not the same.

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9. DKI Jakarta is different from other regions. The question is what does

gubernatorial election designation should be 50% more with the holding

the government on top? This is what the petitioners do not like.

The impression of Article 11 of the paragraph (2) imposed his will, so

does not reflect as a state of law instead of a state

power, as it gets specificity by the Constitution, the maker

Act formulating the norm Article 11 paragraph (2) as will

its heart which causes loss of rights to recognition, warranty,

unfair protection and legal certainty, as well as the treatment that

equals before the law as being governed in Article 28D paragraph (1) UUD

1945.

10. That the uncertainty of the law is due to the application of Article 11 paragraph (2) Act

29/2007 carries very large implications especially related

with the use of APBD DKI Jakarta obtained from the poll

retribution & taxes that is paid by the applicant if there should be

round to two in the municipal elections in DKI Jakarta.

11. Amanat Article 28D paragraph (1) of the Constitution concerning the certainty of law is the right

of the citizens. By not giving the pair the chance of a candidate who

earned a 30% more votes as a winner in

the first round, and should proceed to the second-to-second round, giving

the further availability of the country's budget. hundreds of billions of rupiah.

Not this could be said to be an unfair legal certainty.

Why, because it should be hundreds of billions of rupiah could be used

for a program of poverty alleviation, health and education

entire citizens of Jakarta.

12. That application of Article 11 paragraph (2) has eliminated the rights of the equation

in the law of the applicant as a citizen of Indonesia domiciled in

Jakarta DKI province in terms of the designation of Governor & Vice Governor

elected with the citizens Indonesia in other provinces, where citizens

Indonesia in other provinces in the designation of Governor &

The Vice Governor-elect applies the provisions of Article 107 of the paragraph (2) Act 12/2008.

While for Pilkada DKI Jakarta, it must reach 50% more for

could be set as a winner.

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13. That if in the Election of Governor & Vice Governor of DKI

Jakarta the same principle of treatment in the law for each citizen

state applied then the provisions used in the election

Governor & Vice Governor of DKI Jakarta on July 11, 2012 should be

is Law 12/2008, so that if any candidate has acquired

a vote of more than 30% of the number of valid votes according to the provisions

Article 107 of the Law 12/2008 could already be declared as winners and

there does not need to be a second round.

14. That the same specificity of the treatment in front of the law should be absolute

is seen as the right of citizens in the voting, either

the general election and the selection of regional heads. Because there is no

the difference in the sound of a Jakarta person than in a person in the province

another. All the same, that is one person one vote.

15. "Everyone is entitled to be free of any discriminatory treatment of

at any base and is entitled to a protection against the treatment

that is discriminatory."

16. That the implementation of Article 11 paragraph (2) of Act 29/2007 allows

to close the opportunities for the residents of Jakarta and the applicant to

conduct the Governor & Vice Governor's election more effectively and

efficiently in execution. The election of the regional head of Jakarta.

17. That the equality of every person in the law should be recognized

normatively, in the framework of this equation all attitudes and deeds

discriminatory in all its forms and manifestations should be stated

as an attitude and a forbidden act.

18. That the application of the provisions contained in Article 11 of the paragraph (2) of the Act

29/2007 contradictory Article 28I paragraph (2) of the 1945 Constitution

adheres to the free principle of discriminatory treatment;

19. That Article 18 paragraph (4) of the 1945 Constitution states; the Governor, the Regent, and

The mayor of each as the head of the provincial government,

the county, and the city are elected democratically. However in

the implementation must still use a budget that refers to

the principle of efficiency. And Article 11 of the paragraph (2) of the Jakarta DKI Act appears once

the management of the regional head is not done

orderly, effective, transparent, responsible, for negating the odds

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pilkada is only one round if no pair achieves the sound

is valid 50% more.

20. That the Applicant is aware of the Jakarta area is the capital of the country

so that it has a specificity in the management of his government.

And this has been set up in Article 18B of the paragraph (1) of the 1945 Constitution which

states; " The State recognizes and respect the units

regional governments that are special or special that

is set up with an invitation ". But if we read it as a whole

in the Act 29/2007 it has to do with governance management,

not the issue of regional elections. And the applicant is not

getting the rationality of the Jakarta DKI government with

the winner in the regional head election must obtain a vote

more than 50% is valid, if not there, should be done stage to two.

21. That application of Article 11 paragraph (2) of Act 29/2007 has caused

the occurrence of a distinction of treatment of fellow citizens in which

the citizens of Jakarta in selecting the Governor & Vice Governor if

The acquisition of the vote does not reach More than 50% then the Governor's election

& Vice-Governor is held in the second round even if there are candidates

The Governor & Vice-Governor has received more than 30% of the vote.

It is different from non-DKI citizens of Jakarta if the results

elections are not earned by a vote of over 50% but are already obtained

votes more than 30% then already set to be selected.

22. That speciality in the establishment of a winner as set

in Article 11 of the paragraph (2) Act 29/2007 has an effect on the implementation of which

is different from other regions. Whereas the a quo distinction is clearly done

without a clear constitutional basis and contrary to the Constitution,

this for the applicant is the form of an attitude of discrimination

by the Bill of Law. While the Constitution itself

forbids the attitude or acts of discrimination done by anyone.

Then the applicant must be protected from the laws

that is discriminatory that distinguates between the petitioners

as a taxpayer citizen, with citizens in the province

another also equal pay tax.

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23. That according to Article 1 paragraph (3) of Act No. 39 of 1999

on Human Rights, discrimination is: any restriction,

harassment, or impossibility, direct or indirect

is based on the distinction human on the basis of religion, tribe, race, ethnic,

group, group, social status, economic status, gender, language,

political beliefs, resulting reduction, deviation or

removal of recognition, execution or the use of fundamental rights

humans and basic freedoms in the individual ' s good lives nor

the collective in the political, economic, social law and other aspects

other life.

24. That after carefully studied the above discrimination meaning, what

contained in Section 11 of the paragraph (2) Act 29/2007 is the form

setting the discriminatory section for giving the

not equal treatment. Petitioners with an Indonesian citizen who

with the residents of another province.

25. That Article 11 paragraph (2) of the Act 29/2007 if associated with the rights

human is not in sync with Article 3 of the paragraph (2), paragraph (3) Act 39/1999

on human rights that reads, Section 3 of the paragraph (2): " Everyone

is entitled to recognition, Guarantee, Protection, and the Treatment of Law

equitable as well as to the same legal certainty and treatment

in front of the law ". Article 3 paragraph (3): "Everyone is entitled to the protection of

human rights and basic human rights without discrimination".

So that thus the provisions of Article 11 paragraph (2) Act 29/2007 must

be declared unconstitutional and does not have a legal force

binding.

26. That Article 239A of Law 12/2008 states; "At the time of the Act

this shall come into effect, all provisions in the laws

in defiance of this Act are declared to be not applicable".

That in fact, KPUD DKI Jakarta does not use Article 11

paragraph (2) Act 29/2007 incorrectly, because Article 239A Act 12/2008 has

provided the umbrella of the law.

27. That Article 11 paragraph (2) of the Act 29/2007 reflects the distinction

of position and treatment (unequal treatment), injustice (injustice),

16

legal uncertainty (legal uncertainty), and is discriminatory

against the petitioners.

28. That the Court in Putermination Number 5/PUU-V/2007 considerations

verdict 3.15.10 states; " The court argues that

there is a citizen's rights equation as guaranteed by Article

28D paragraph (1) and paragraph (3) UUD 1945 cannot be done in a way

states that the submission of the individual candidate defined by

Article 67 paragraph (2) of the Aceh Government Act as opposed to

Constitution of 1945 so that it should be declared not valid, because Indeed.

The reality of the nomination is not contradictory to

UUD 1945. However, these rights equations can be performed with

requiring the Pemda Act to conform to the new development

which has been performed by the law-forming itself, which is

granting the right to the individual to can run

as regional head and regional deputy without having to go through a parpol

or a combination of parpol as determined by Article 67 paragraph (2) Act

Government of Aceh ".

29. That the legal considerations of the Constitutional Court above are the case

a lawsuit in the Constitutional Court concerns an individual candidate who

not set in the Pemda Act does not set a while in

in Act Number 11 2006 about Government

Aceh is set to be individual candidates. In consideration of the Court's law

The above Constitution clearly requires the Pemda Act

to conform to the Aceh Government Act, this

due to the question of the democratic system in the head election

the area should not be any difference between special areas with the area

not special. Between aceh and other regions should be equally as comfortable

the rule generally values the principle of fundamental rights principle

humans.

30. That it does not include Article 107 verses (2) in the Act

No. 32 of 2004 on the Local Government and its changes

for the reason the capital Jakarta is a multicultural special area

is the form dethrate DKI Jakarta which had an impact

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A discriminatory action against the applicant as a voter in

Pilkada DKI Jakarta

31. That by not being prepared by the provisions of Article 107 of the paragraph (2) Act

12/2008, so that the spouse of the candidate if no one meets 50%

requires that there be a round to two shows the hater

The Act does not understand The Pilkada Act is because

distinguates between the capital Jakarta and other areas. It should be

The capital of Jakarta and other areas must gain an equation in

laws and governance. It clearly points out Article 11 of the verse (2)

Act 29/2007 contradictory to the 1945 Constitution in particular section 28I clause

(2).

32. That after it was learned Article 11 of the paragraph (2) Act 29/2007. The applicant

is to wonder which idea from which, the Act of 29/2007 is the same

once made the position of the capital Jakarta in a special 29/2007 Act but

it is not clear in the matters of the Pilkada stage. All of the Pilkada stages

uses the Act of 12/2008, only about the designation of the non-existing spouse

reaching 50% of the new use Act 29/2007. This clearly shows

if Article 11 of the verse (2) discriminates against the constitutional rights of citizens

as voters who want Pilkada in the capital Jakarta

takes place democratic and efficient.

33. That the applicant is aware of Law 29 /2007is the Special Act,

but the creation of Article 11 paragraph (2) of the Act 29/2007 is absolutely not

heeding, not synchronizing with the Act

another directly related Act. with Pilkada, making this article

defects and make Pilkada the capital of Jakarta be inefficient.

34. That Article 11 paragraph (2) of Act 29/2007 is the Special Act

governing the course of the Jakarta Capital government, not the Act

special about Pilkada, should be in the matter of the election of the head

area of Jakarta KPUD using Law 12/2008 that is clear

set up the overall Pilkada stage.

35. That Article 28J of the Constitution of 1945 states; In exercising the right and

his freedom, each person is mandatory subject to the restriction that

set forth with the law with the intent solely to

warrant recognition and respect. For people's rights and freedom.

18

others and to meet fair demands in accordance with consideration

morals, religious values, security and common regularity in an

democratic society.

36. That, however, the restriction or authoring of rights

constitutional citizens based on the constitutional basis of Article

28J paragraph (2) of the 1945 Constitution, does not mean the abolition/revocation of rights

the constitutional constitution of the citizens Related. Alienation or

the reduction of those individual rights, based on the utilitarianistic considerations

the same, can only be justified as far as it is indeed-

is absolutely necessary to allow the selected value to be

Requires, a common interest can be realized. Thus,

the alienation of individual rights, which is already recognized

constitutional or guaranteed by the constitution, can only be done with

very limited, clear and resolute restrictions, both in terms

and In terms of the manner of execution. Where

the limitation/dilution of such rights, must be formulated (set)

with the Act.

37. That to test whether a provision of the rules of law-

an invitation regarding constitutional rights restrictions has a cornerstone

a valid and true constitutional basis, must be measured from the provisions of Article

28J paragraph (2) of the 1945 Constitution As it is above. Therefore,

the underlying considerations that must be answered are:

38. Whether the restrictions set out by the provisions of Article 11 paragraph (2) of the Act

29/2007 guarantee recognition as well as respect for rights and

the freedom of others?

39. Whether the restrictions set out by the provisions of Article 11 paragraph (2) of the Act

29/2007 are in order to meet fair demands in accordance with

moral considerations, religious values, security, and public order

in a Democratic society.

40. That after careful review, it turns out that Article 11 of the paragraph (2) of the Act

29/2007 was not in order to meet the fair demands with

moral considerations, religious values, security, equality in front

law and order It's common in a democratic society. In fact

Article 11 paragraph (2) Act 29/2007 pairs and impede citizens ' rights

19

states, and inhibiting any citizen who wants

Pilkada in the Jakarta Capital takes place democratically and efficiently

budget.

41. That Article 11 paragraph (2) of Act 29/2007 reflects the difference

position and treatment (unequal treatment), injustice (injustice),

legal uncertainty (legal uncertainty), and is discriminatory

against the petitioners. Would not it be so reasonable that the

applicant considers the a quo against the Article

28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution.

42. That based on the description above, then if the existence of Article

11 paragraph (2) Act 29/2007 remains in effect potentially harming the right

the applicant ' s constitutional laws if in the election of the DKI regional head

Jakarta does not exist the pair who obtained a 50% more sound and

be reasonable if the applicant considers the article a quo contradictory to

Constitution of 1945 in particular Article 28D paragraph (1) and Article 28I paragraph (2) of the Constitution

1945.

43. Thus the provisions of Article 11 paragraph (2) of Act 29/2007 should

be declared "without binding legal force".

Petitum Based on everything described above, the petitioners pleaded for

Constitutional Court provides a ruling that is as follows:

1. Grant the invocation of the applicant entirely;

2. Stated:

Article 11 paragraph (2) Law Number 29 of 2007 on

The Government of the Special Region of Jakarta Capital Province As the Capital

Unitary State of the Republic of Indonesia against with Article 28D paragraph (1) and Article 28I paragraph (2) of the Basic Law of 1945;

3. Stated:

Article 11 paragraph (2) Law No. 29 of 2007 on

The Government of the Special Region of Jakarta Capital Province As the Capital

Unitary State of the Republic of Indonesia has no legal force

binding;

4. Ordering a loading of this ruling in the Republic of Indonesia News

as it should be;

20

Or, if the Constitutional Court 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 letter/writing tool that was given a Proof of P-1 to

Proof of P-3, as follows:

1. Evidence P-1 Photocopy of the State Basic Law of the Republic of Indonesia in 1945;

2. Proof P-2 Photocopy of the Republic of Indonesia Law No. 29 of 2007 on Regional Provincial Government

Special Capital Jakarta As the State Capital of Unity

Republic of Indonesia;

3. Evidence P-3 Photocopy of NPWP Cards on behalf of Mohamad Huda;

In addition, the petitioners also submitted an expert, Dr. Andi Irmanputra Sidin who had been heard under oath in the September 4 trial. 2012, which in the first place is as follows:

Expert Andi Irmanputra Sidin Article 11 paragraph (1) Act 29/2007 regulates that the spouse of the candidate for Governor and

The deputy governor who earned a vote is more than 50% (fifty percent)

appointed as Governor and Deputy Governor. Verse (2) mentions

that in the event that no spouse of a candidate for Governor and Deputy Governor

who obtained the vote as referred to as paragraph (1), held the election

The governor and the Vice Governor of the second round followed by the candidate of the candidate

who acquired the first and second most votes in the first round.

Determination of the remaining candidates the Governor and Deputy Governor in

other provinces are subject to the provisions of Article 107 of the paragraph (2) of the Act of 12/2008 which

set up the regional head candidate and the deputy head of the area that

obtained vote of more than 50% (fifty percent) of the valid vote count

is set as the selected candidate pair and if the provision is intended

not met, the local chief candidate and the deputy head of the region

zoom in on the vote more than 30% (thirty percent) of the total number of valid votes,

the spouse of the candidate whose majority vote is largest stated as

the spouse of the elected candidate.

21

A special area may set differently than any other of the area

that is not special. However special/speciality

that does not mean it can be set up "different origin" with other regions.

In the formation of laws known as principle of clarity

and fitness for purpose.

The acquisition vote of more than 50% in Law 29/2007 as its chosen terms

spouse of the candidate as Governor and Deputy Governor so that the selected pair

has legitimacy, can be used as a reason for specificity. However

under the Jakarta Special Act of 1999, the Governor and

The Deputy Governor retained legitimacy even though Governor and Vice

The governor was plotted by the DPRD; and the Jakarta-Jakarta special remained in place

optimal.

The reason for choice with the support of the vote is 50% more for the legitimacy that

strongly does not relate to the Jakarta specificity.

Related to multicultural reasons, the benchmark figure is more than 50% non-related to

The homogeneity and heterogeneity of the electorate. Unless the selected figure is

over 75% then it is certainly the heterogeneity of voters worthy of consideration.

All provinces are multicultural as it consists of various counties or

cities of different inhabitants.

In addition to Jakarta, the Governor leads the selected regent and mayor

multiculture. The governor of Jakarta leads the unelected regent and mayor

directly by the people.

The acquisition of more than 50% to determine the spouse of the candidate for Governor

and the Deputy Governor of Jakarta is a legal dualism that does not have

the ratio of the suitability and clarity of the purpose of the purpose of Jakarta.

[2.3] A draw that against the applicant's request, the Government

delivered opening statement orally in the trial of the 4th

September 2012, which at the bottom of the list states:

I. About the Applicant Law According to the Government, it needs to be questioned in the interests of the petitioners, whether

already appropriate as a party to assume the rights and/or authority

its constitutionality was harmed over the enactment of Article 11 verse (2) Act

Number 29 of 2007 on the Government of Jakarta Capital Region Region

22

as the State Capital of the Republic of Indonesia (Law 29/2007), also

whether there is a constitutional loss of the intended applicant

is specific or special and actual or at least a potential which

according to reasonable reasoning can be certain to occur, and whether there is

a causal relationship between the loss and the enactment of the Act

is being honed to be tested.

The applicant cannot be conceptored With a clear loss

the constitutionality that he suffered over the treatment. Article 11 paragraph (2) Act 29/2007

stating, " In the absence of a couple of gubernatorial candidates and

the deputy governor who obtained the vote as referred to

paragraph (1), held the election of the governor and the deputy governor The second round

is followed by a couple of candidates who earned the most votes first and

second in the first round ".

In the entire description of the applicant, the applicant only states the things

in relation to the swelling or budgeting issue

for the restoration of the Second Round DKI which is considered

contradictory to Article 27 paragraph (1), Article 28D paragraph (1), and Article 28I

paragraph (2) of the Constitution of 1945.

The government also questioned, who was harmed over the applicability

legislation a quo. If the applicant is self-declared

a individual of Indonesian nationals domiciled in DKI Jakarta,

according to the Government of the Applicant has been erroneously and incorrect in

explaining and/or constructs have been the loss of the right or

constitutional authority over the provisions of a quo because

the a quo provisions set about hosting the Governor's election

and the Deputy Governor of Jakarta, where as Audience members are

the candidates for governor and vice governor, so it is not There is a causal link-

result directly with the petitioners.

The government argues the applicant cannot be in a position of being harmed

or rejected and impedidly blocked because the applicant is not

the candidate The governor or vice-governor who followed the governor of Jakarta.

If the applicant ' s control is considered correct, then

that should be harmed is the entire population domiciled in

DKI Province Jakarta. The question is whether the petitioners are right and right.

23

according to the law declaring itself a representative of the entire community or

a resident of the domiciled population in Jakarta province? This is necessary and important

questioned by the Government due to the loss of rights or authority

constitutional arising over the enforcement of an Act in casu UU

29/2007, cannot be serta-merta naming it residents or

communities of Jakarta unless the petitioners can show it.

According to the Government, the request of the applicant is not related at all

with the constitutionality of the Act of which the Act is impacking for

tested because the applicant wanted was a change of the system

elections to DKI Jakarta province to be equal and comatable with the area

special and/or all others. If so, then what

wishes for the applicant is not appropriate if delivered to

forming an Act for the change of the a quo.

Based on that above, the Government suggest the applicant

in this request does not meet the qualifications as having

legal standing (legal standing) and is not appropriate if the Court

The Constitution wisely declares a plea The applicant is not

is acceptable.

II. The Government's explanation of the material was directed by the petitioners that the Government of the State Government of the Republic of Indonesia according to

The Basic Law of the Republic of Indonesia of Indonesia Year 1945

recognizes and respects Special and special units

in accordance with the principles of the Republic of the Republic of Indonesia.

As the embodiment of that provision, in Indonesia there are some

regions that have the nature of specificity and/or Special nature that

The implementation is set up with rules

The Government of the Republic of Indonesia is governed by Act No. 29 Year

2007, Nanggroe Aceh Darussalam is governed by the Law

No. 11 of 2006 on the Government of Aceh, Papua Province is regulated

with Law No. 21 of 2001 on Special Autonomy for

Papua Province, and the Privileges Act of Special Areas

Yogyakarta.

24

That the philosophy of the establishment of Jakarta's DKI Province is based on the system

The Government of the Union of the Union of the Republic of Indonesia mandated in

Article 18B of the Basic Law 1945 which states that State

The unity of the Republic of Indonesia recognizes and respects the units

governments of special and/or special forces that

are governed by legislation with the principle of the Republic of the Republic of Republic

Indonesia.

The province of DKI Jakarta as a special government unit in

its position as the State Capital of the Republic of Indonesia and

as an autonomous region, it has an important function and role in

supporting the establishment of the Government of the Republic of the Republic of Indonesia

Indonesia under the Constitution of the Republic of Indonesia

In 1945. Therefore, it needs to be given the specificity of duty, right, duty,

and responsibility in the holding of local government.

The province of DKI Jakarta as a special unit of government in

its position as a The capital of the Union State of the Republic of Indonesia and

as an autonomous region has a function, an important role in supporting

the holding of the Government of the Republic of the Republic of Indonesia,

so that it needs to be given the speciation of duty rights, obligations, and liabilities

answer in the holding of the government areas

amanat as Capital of the State of the Republic of Indoensia as a place

the seat of a foreign country representative, the representative center of the international agency,

the economic center, and as well as the staging of the decentralization

or province area.

The province of DKI Jakarta as the State Capital of the Republic of Indonesia

as the seat of government and as an autonomous region dealing with

the characteristic problem of the problem complex and different with

other provinces are always dealing with problems Related public services

with urbanization, security, transportation, environment, area management

special, and other social problems of the community that require

synergistic completion through various instruments.

The province of DKI Jakarta as the country's capital has a special nature

as described above, its specialty demands arrangement

regarding the specificity of duty, rights, obligations, and responsibilities as

25

the capital of the country, the position of representative of the best friend countries,

allotedness of the general plan of the Jakarta layout with the general plan

surrounding area spaces, special areas for the establishment of function-

Specific government functions that are managed directly by the government.

The specialty of Jakarta's DKI Province as the country's capital which requires

arrangements and also special, has also been stated by the Court

Constitution In Putermination Number 11 /PUU-VI/2008. Further according to

The court, areas that have special status and are granted

special autonomy other than are governed by this law, enforced anyway

special provisions are set up with other Acts.

Special areas of Jakarta as State Capital of the Republic of Indonesia in

aside subject to Act No. 32 of 2004 as

the general provisions on Local Government are also set specifically

in the Act Its own, the Act No. 29 of the Year

2007 that has the foundation constitutional in Article 18B paragraph (1) UUD

1945. That in accordance with the provisions of Act No. 29 of the Year

2007 on the Government of the Provincial Special Region of Jakarta as

The Capital of the Union of the Republic of Indonesia is mentioned that authority

The Government of the Province of DKI Jakarta includes the implementation of the capital city layout

NKRI, natural resources, living environment, population control,

settlement, transport, industry, trade, tourism, element coordination-

element of central government in the The province of Jakarta, which includes affairs

foreign politics, defense, security, yustisi, monetary, and fiscal faiths;

coordination of the holding of deconcentration and the duties of the host. Coordinating

The authority of the Government of Jakarta as the capital of the NKRI, preserving and

developing the Betawi society culture, and other community culture

that exists in the province of DKI.

By due to the magnitude of the responsibility of Jakarta's province of Jakarta as the Capital

State of the Republic of Indonesia, then Governor and Deputy Governor

DKI Jakarta as head of the provincial government special area of the capital,

need to gain strong legitimacy from the people and pay attention to citizens

Jakarta is multicultural.

Therefore, the Act sets the election of Governor DKI

Jakarta must obtain 50% of the total number of votes lawful to

26

declared as Governor and Vice Governor-elect. And in that case

there's a couple of candidates for Governor and Deputy Governor who got the vote

50% of the total number of valid votes, the Governor's election is held and

The vice governor of the second round followed by a couple of candidates. which

earned the most first and second votes in the first round. This

is also a distinct specificity with other provinces.

The legislation also says the number of membership of the DPRD Province of DKI

Jakarta is at least 125% of the maximum number for the amount category

The residents of Jakarta.

The deputy candidate for the Mayor or Regent is filed by the Governor for

obtaining the provincial DPRD consideration, and in the exercise of its duties

The mayor or the Regent is responsible to the Governor.

With regard to the settlement at the top, the government

argues that It is very reasonable that the selection of policy-making

legislation, in this case the President of the People's Representative Council

specialises the requirements of the Governor and Deputy Governor of Jakarta that

in contrast to other regions.

Further according to the Government, the a quo provision is in addition to the mandate

the constitution in casu Article 18 of the paragraph (1) and 18B paragraph (1) of the 1945 Constitution, also

is a legal policy option (legal policy) that cannot be tested,

unless done arbitrarily and beyond the authority

The lawmaker. In other words, the wisdom that

is thus the authority of the Act, in this case

The President is with the House of Representatives. This is a decision

The Constitutional Court Number 006 /PUU-III/2005 page 21 and Numbers

5/PUU-V/2007 page 72.

III. Conclusion The government pledging to the Constitutional Court may give

the verdict as follows.

1. Rejecting the invocation of the applicant is entirely or at no-

the non-requiver of the invocation of the applicant is not acceptable.

2. Received overall Government information.

3. Stating the provisions of Article 11 paragraph (2) Act Number 29

Year 2007 on the Government of the Special Region of Jakarta Capital Region

27

As the State Capital of the Republic of Indonesia does not conflict with

provisions of Article 27 paragraph (1), Article 28D of paragraph (1), and Article 28I paragraph (2)

The Basic Law of 1945.

[2.4] Draw that against the applicant, the Board

The People's Representative of the Republic of Indonesia delivered a written caption without

date of September 2012, which the Court accepted on 10

September 2012, at the point of the following:

1. Legal Position (Legal Standing) The applicant Qualifying to be fulfilled by the applicant as a party is set

in the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003

on the Constitutional Court (subsequent The MK Law), which

states that "The applicant is a party that considers the right and/or

its constitutional authority is harmed by the law,

that is:

a. Individual citizen of Indonesia;

b. the unity of the indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the Republic of the Republic of the Republic

Indonesia that is set in undra;

c. public law enforcement or Private; or

d. state agencies."

The rights and/or constitutional authority referred to the provisions of Article

51 paragraph (1), expressed in its explanation, that" the intended

with "constitutional rights" is the rights that are set forth in the United States. In the invitation-

Invite the Basic State of the Republic of Indonesia in 1945. " The provisions

The explanation of Article 51 of the paragraph (1) of this affirm, that only rights

was explicitly set in the Constitution of 1945 alone which included "rights

constitutional".

Therefore, according to the MK Act, for someone or a party may

be accepted as a legal standing applicant (legal standing)

in the Act of 1945 testing against the Constitution of 1945,

then first must explain and prove:

28

a. Her qualifications as Applicant in the a quo as

referred to in Article 51 of the paragraph (1) Act No. 24 of 2003

about the Constitutional Court;

b. the rights and/or its constitutional authority as referred to

in "The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by

the enactment of the Act.

Regarding the constitutional loss parameters, the Constitutional Court has

provides an understanding and limitation on constitutional losses that

arising out of the enactment of an Act must meet 5 (five)

terms (vide Verdict Case Number 006 /PUU-III/2005 and Perkara Number

011 /PUU-V/2007) are the following:

a. the rights and/or constitutional authority of the applicant granted

by the Constitution of 1945;

b. that the permissions and/or constitutional authority of the applicant

are considered by the applicant to be harmed by an Act that

is tested;

c. that the constitutional rights and/or constitutional authority of the applicant

referred to Specific (special) and actual or at least to be

potential that the reasonable reasoning can be guaranteed

occurs;

d. Due (causal verband) between the loss and

the enactment of the test-moveed Act;

e. It is possible that with the request of the request then

the loss and/or constitutional authority postured will not be

or no longer occurs.

If all five terms are not met by the applicant in the The case

testing the a quo Act, then the applicant does not have

legal standing (legal standing) as the applicant.

Responded to the applicant a quo, the House of view

that the applicant must be able to prove beforehand whether it is true

para The applicant as a party considers the right and/or authority

its constitutionality is harmed over the enactment of the required provision for

being tested, in particular in contesting any loss to the right

29

and/or its constitutional authority as an impact of the implementation

conditions are required to be tested.

Against that legal position (legal standing), the House surrendered

fully to the The Chairman/Assembly of the Constitutional Court of Justice for

consider and assess whether the applicant has a position

legal (legal standing) or not as governed by Article 51 of the paragraph

(1) MK Act and based on Constitution of the Constitutional Court Number

006 /PUU-III/2005 and Perkara Number 011 /PUU-V/2007DPR

2. Testing of Section 11 (2) of the Jakarta (2) Act Pemprov DKI Jakarta Against the application of the materiel testing article 11 paragraph (2) Act Pemprov

DKI Jakarta, DPR conveits the following caption:

1. That the Terms of Section 18B paragraph (1) of the Constitution of 1945, stated

"The State recognizes and respects the units of the local government

that is special or special that is governed by the invite-

invite". Under the terms of article 18B of the paragraph (1) of the paragraph then

in the General explanation of the Jakarta DKI Pemprov Act

it is expressly stated that " the system of the State Government of Unity

The Republic of Indonesia according to the The Republic of Indonesia States Act

Year 1945 recognizes and respects the units of government

that is special or special that is set up with the legislation "

2. That as one state of state recognition of the unit

a special or special government, recognition of the state

against the Specificity of the Jakarta Provincial Government as the Capital

Republic of the Republic of the Republic Indonesia which is governed under the Act

No. 29 of 2007 on the Government of the Province of Jakarta as

The capital of the Union of Unity of the Republic of Indonesia.

3. That the province of DKI Jakarta as a unit of government is

special in its position as the State Capital of the Republic

Indonesia and as an autonomous region has functions and roles that

is important in support Host of State Government

Unity of the Republic of Indonesia under the Constitution of the Nation

Republic of Indonesia in 1945. Therefore, it needs to be given

the specificity of duty, right, duty, and responsibility in

the holding of local government.

30

4. That one of the specificity of the Government of Jakarta Province as

The Capital of the Union of the Republic of Indonesia is seen in the provisions

Article 9 which mentions that " Autonomous Province of Jakarta DKI Jakarta

is laid on Provincial level. It is that distinguItems from

other areas where autonomy is at the Regency/city level.

5. That the Specificity of another Jakarta DKI Pemprov is Governor

DKI Jakarta has the authority to lift and

dismiss the mayor/regent by hence walikota/bupati

directly responsible to the Governor. It is very

in contrast to other areas where the mayor/regent is chosen directly.

Therefore the Governor has the power and responsibility

that is very large in the running of his government.

6. That of Jakarta's specialty of Jakarta as the State Capital

Unity of the Republic of Indonesia as described above, face to face

with a very complex and distinct problem characteristic

with other provinces. The province of DKI Jakarta is always dealing with

problems of urbanization, security, transport, environment, management

special regions, and other social issues that

require a synergistic problem solving through the various

instruments. In addition, Jakarta DKI Province as the State Capital

The Republic of Indonesia also serves as the seat of the country's representative

foreign, and other international institutions, and that

is characteristic of the Republic of Indonesia. different issues with other areas

that the Government of Jakarta Province should face.

7. Based on the above descriptions, the House of Representatives has argued that

legal reasons, if the Law-making (House of Representatives

with the President) take the policy option (legal policy)

specialise The Governor's requirements and the Deputy Governor of Jakarta

that are different from the rest of the area. Governor and Deputy Governor of DKI

Jakarta as head of government of the Capital Region Special Region

needs to acquire strong legitimacy from the people and pay attention

the multicultural Jakarta citizen. Therefore, this Act

sets the election of the Governor and Deputy Governor of Jakarta should

obtain a voter vote support of more than 50% (fifty percent)

31

of the total number of valid votes to be designated as Governor

and the Deputy Governor-elect, as set forth in Article 11 of the paragraph (1)

Act 29/2007.

8. That according to the House of provisions a quo has had legal logic (legal

ratio) that reasoned in addition to the provision of the mandate

provisions of Article 18 of the paragraph (1) and 18B paragraph (1) of the 1945 Constitution, the Terms of the Article

11 paragraph (2) Act 29/2007. DKI Jakarta is also a policy option

legal (legal policy) which cannot be tested, unless done in

arbitrarily (willekeur) and beyond the authority of the maker

Act (detournement de pouvoir), in other words

The wisdom of which is the authority of the Invite-

Invite in this joint President of the People's Representative Council (videa

Putermination of the Constitutional Court Number 006 /PUU-III/2005, page 21, and

Number 5/PUU-V/2007, page 72).

9. According to the House of Representatives, the provision is not as well as being considered to be the

the treatment and the discriminatory limitations as long as

the restriction or distinction being performed is not based upon

religion, tribe, race, ethnicity, and the "religion". group, group, social status, status

economy, gender, language and political beliefs [vide Article 1 paragraph (3)

Act Number 39 of 1999 on Human Rights,

and Article 2 International Covenant on Civil and Political Rights].

10. Based on the above descriptions of the House of Representatives, the provisions of Article 11 paragraph

(2) Act 29/2007 does not conflict with Article 27 of the paragraph (1), Article 28D

paragraph (1) and Article 28I paragraph (2) of the Constitution of 1945.

Thus the Speaker of the House was submitted for consideration

for the Constitutional Court of Justice to examine, cut, and

prosecute the case a quo and may provide a ruling as follows:

1. Overall House Description;

2. Stating the provisions of Article 11 paragraph (2) Act 29/2007 is not contradictory

with Article 27 of the paragraph (1), Article 28D paragraph (1) and Article 28I paragraph (2) of the Constitution

1945

3. Stating the provisions of Article 11 paragraph (2) Act 29/2007 still has

the power of the law binding.

32

[2.5] Stated that Related Parties [Dr. Ing. H. Fauzi Bowo and Mayjen

(Purn) Nachrowi Ramli as a participant in the 2012 Jakarta DKI Province, the following:

The petitioners did not suffer the loss of the law. the provisions that

are mohoned to be tested.

The provisions of the mohoned tested precisely affirm the specificity of the Province of DKI

Jakarta.

The provisions referred to also do not deter the applicant from

using his right to the second round of the Jakarta province of DKI.

The provisions of Act 32/2004 as amended with Act 12/2008 constitute

the general provisions in the implementation of the Pemilukada that do not need to be outlined

again in Law 29/2007.

The determination of the electabiltas electabiltas Pemilukada DKI Jakarta is legal policy

Act-forming.

Article 11 paragraph (2) Act 29/2007 is not discriminatory to the applicant

since it does not limit the right of the applicant to determine the option in

Pemilukada Province of Jakarta.

[2.6] Balanced That for shortening the description in this ruling,

everything that happens in the trial is quite appointed in the news of the event

the trial, which is one unseparable unity with

this verdict;

3. LEGAL CONSIDERATIONS

[3.1] weighed that the intent and purpose of the plea a quo is to

test the constitutionality of Article 11 of the paragraph (2) Act Number 29 of the Year

2007 on the Government of the Province of Regions Special Capital Jakarta As

Capital Of The Unity State Of The Republic Of Indonesia (Sheet Country Republic

Indonesia Year 2007 Number 93 Additional Leaf Country Repulik Indonesia

Number 4744, subsequently called UU 29/2007) which stated, " In the event of

there are spouses of candidates for Governor and Deputy Governor who earned the

As referred to in paragraph (1), held the election of the Governor and the Vice

The second-round governor followed by the candidate that got the vote

33

first and second most in the first round", against the Act

Basic State of the Republic of Indonesia in 1945 (next called UUD 1945);

[3.2] Weighed That Before Considering the subject request,

The Constitutional Court (later called the Court) first would

consider:

a. Court Authority to prosecute the a quo;

b. Legal standing (legal standing) the applicant to submit

a request a quo;

Constitutional authority

[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution, Article 10

paragraph (1) of the letter a The MK Act as amended by Law Number

8 Years 2011 on Changes to the Law No. 24 Year 2003

on the Constitutional Court (State Sheet of the Republic of Indonesia Year 2011

Number 70, Additional Sheet of State of Indonesia Number 5226), as well

Article 29 paragraph (1) letter a Law Number 48 2009 on Power

Judiciary (State Sheet of the Republic of Indonesia 2009 No. 157,

Additional Gazette of the Republic of Indonesia Number 5076, subsequently called

UU Number 48/2009), one of the authorities The Constitutional Court is

trial on the first and last level of which the verdict is final to

test the Act against the Basic Law;

[3.4] Draw that the applicant's plea is to test

the constitutionality of the norms of phrases contained in Section 11 of the paragraph (2) of the Act. 29/2007

against the 1945 Constitution, which became one of the Court's authority, so

by hence the Court of Justice to prosecute the a quo;

Occupation of Law (Legal Standing) of the applicant

[3.5] weighed that under Article 51 of the paragraph (1) MK Act and

The explanation, which may apply for testing of the Act

against the Constitution of 1945 is those who consider the rights and/or authority

The constitutionality given by the 1945 Constitution was harmed by the law.

Act, that is:

34

a. Individual citizens of Indonesia (including groups of people

have common interests);

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945 must explain and prove first:

a. The position of the applicant is referred to in Article 51 of the paragraph

(1) of the MK Act;

b. the constitutional rights and/or constitutional authority granted by the Constitution

1945 resulting from the enactment of the legislation

testing;

[3.6] In a draw that the Court since the Constitutional Court's termination

Number 006 /PUU-III/2005, dated 31 May 2005, and the Constitutional Court

Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-

subsequent ruling establishing the loss of rights and/or authority

constitutionally referred to Article 51 of the Article 51 paragraph (1) the MK bill must meet

five terms, that is:

a. the rights and/or constitutional authority of the applicant given by

Constitution of 1945;

b. the rights and/or constitutional authority by the applicant is considered

aggrieved by the enactment of the testing Act;

c. the constitutional loss must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be confirmed

will occur;

d. A causal relationship (causal verband) between the intended loss

and the expiring of the testing Act;

e. It is possible that with the request of the request then

constitutional losses such as those postured will not or no longer occur;

35

[3.7] A draw that is based on the description as

paragraph [3.5] and paragraph [3.6] above, next the Court will consider the legal standing (legal standing) para Petitioner. In the case of the applicant, the citizens of Jakarta, who are participating in the "

pay levy and tax and are registered as voters and use

the voting rights in the Jakarta Province of Jakarta in 2012, have been wronged by the rights of the Indonesian People's Department of Jakarta.

constitutionality if the 2012 Jakarta Event is held until

the second round, as it will cost the Jakarta Government budget less

more Rp.200 billion. The funds are sourced from a tax and levy that

The petitioners, when taxes and retribution can be used to

provide services to the public. The petitioners also postulate that

the arrangement of the Illuminating in Article 11 of the paragraph (2) of the Act 29/2007 differs from

setting in Section 107 of the paragraph (2) Act 32/2004 juncto Act 12/2008 regarding the same

for the province Another. According to the applicant, Article 11 of the paragraph (2) of the Act 29/2007

violates the principle of the equation in law governed by Article 28D paragraph (1) of the Constitution

1945, as well as discriminatory so that it violates Article 28I (2) of the Constitution of 1945;

[3.8] Weighed that after lecturing the submission document

the application and the evidence submitted by the applicant, the Court found the facts

that the applicant is a citizen of Jakarta (vide photocopy KTP DKI Jakarta

in the name of the para The applicant) who paid retribution as well as a tax (vide Proof P-3 of a photocopy) NPWP card on behalf of Mohamad Huda) as well as having the right to be a voter in Pemilukada Province of Jakarta in 2012;

[3.9] Balanced that based on that fact, the Court judged

there is a potential loss of extravagance and non-efficiency usage

budget if a vote in Pemilukada Province of Jakarta

is done two stages or two rounds when there is a possibility to

to vote for just one round only. Likewise,

a potential mistreatment between Jakarta's DKI Province which

necesates a second round as no candidate pair

received a 50% vote (fifty percent) more with the province. another only

requires a 30% (thirty percent) or more sound margin. With

such considerations, the Court assessees the testing of Article 11 of the paragraph (2) Invite-

36

Invite a quo is likely to eliminate the potential constitutional loss that

experienced the applicant;

[3.10] It is balanced that with regard to the potential due to the experienced

as is dalil-dalil Applicants are related to the existence of Section 11 (2)

The a quo Act, most notably the potential for waste or inefficiency

the use of regional budgets sourced from tax and/or retribution

residents, as well as potential The principle of equality in law and

non-discriminatory principles in Pemilukada, according to the Court, the Pemapplicant

prime facie eligible legal status (legal standing) to

apply for testing of the a quo Act;

[3.11] Draw that Because the Court of Justice is prosecuting

the plea a quo, and the applicant has a legal standing (legal

standing), next the Court will consider the subject;

Subject

[3.12] Draw that the subject of the applicant ' s plea is testing

constitutionality of Article 11 paragraph (2) Act 29/2007 that states, "In matter

no candidate for Governor and Deputy Governor received the

as referred to in paragraph (1), held election of Governor and Vice

Governor of the second round followed by the spouse of the candidate who obtained the votes

first and second most in the first round" against Article 28D paragraph (1)

The 1945 Constitution stated, " Each person is entitled to the recognition, warranty,

protection, and fair legal certainty as well as the same treatment in

before the law", and Article 28I paragraph (2) of the 1945 Constitution states,"Any

entitled to be free of discriminatory treatment of any basis

and entitled to obtain protection against the treatment that is

discriminatory it";

[3.13] Balanced That To Prove The petitioners

filed a proof of the letter/writing given the evidence P-1 is up to the evidence P-

3 as well as expert Andi Irmanputra Sidin who has been heard of his interest in the trial which in his case provides the following description:

37

A special area may set differently than any other

that is not special. However special/speciality

that does not mean it can be set up "different origin" with other regions.

The acquisition of sound is more than 50% in Law 29/2007 as its chosen condition

the candidate of the candidate for the Illusions is for couples. elected legitimacy,

can be used as a reason for specificity. In 1999, the Governor and the Deputy Governor

still have the legitimacy of the City Council.

The reason for choice with the support of 50% more votes for legitimacy that

strongly does not relate to the Jakarta specificity.

The figure is more than 50% less related to homogeneity and

voter heterogeneity. Unless the selected figure is more than 75%

then the heterogeneity of voters is considered.

All provinces are multicultural as it consists of various counties or

cities of different inhabitants.

A vote of more than 50% to determine the potential spouse of the Governor

and the Deputy Governor of Jakarta is a legal dualism which does not have

the ratio of suitability and clarity to the purpose of the Jakarta-based specialty.

[3.14] Considering that the Government is giving a description

The office states the province of DKI Jakarta as the seat of government and

as an autonomous region has a very complex problem, so

requires the specificity of task arrangements, rights, obligations, and responsibilities.

The extent of the responsibility of the province of DKI Jakarta as the State Capital of Unity

The Republic of Indonesia resulted in the Governor and Deputy Governor of Jakarta

as head of government needed to gain strong legitimacy from the people who

multiculture. Therefore, to be designated as Governor and Vice

The governor of Jakarta is determined specifically for the vote.

The House of Representatives gives a statement stating its specificity

The province of DKI Jakarta as a result of the term "The Governor of Jakarta". Capital of the Republic of the Republic of Indonesia

dealing with the characteristics of very complex problems and

in contrast to other provinces. Based on this, reason for law if

Act makers take policy options (legal policy)

specialising the requirements of the Governor and Deputy Governor of Jakarta differ

38

with other areas. The provision of the 50% (five

30%) voter vote is more than the number of valid votes with the intent to head

The government of Jakarta's DKI Province gained strong legitimacy from the people,

given the citizens of Jakarta which is multicultural.

The Related parties give a statement on the question that

the conditions are being honed for its constitutionality testing instead of

affirm the specificity of Jakarta's province of DKI. The provision is also not

is discriminatory and does not limit the right of the applicant to determine

option in the Jakarta province of DKI;

Court opinion

[3.15] draws that Article 18B paragraph (1) The 1945 Constitution states, "Country

acknowledges and respect the units of the local government that are

special or special is governed by law." Regions

special and privileged areas also set in Law Number 32 Year

2004 on Governance Areas as amended with the Invite-

Invite Number 8 Year 2005 on Establishing Replacement Government Regulations

Act Number 3 of 2005 on Changes to the Act

Number 32 Year 2004 on The Local Government became the Act

as amended by Law Number 12 of 2008

on the Second Amendment of the Number 32 Year Act 2004 on

Local Government, (subsequently called the Act Pemda). The provision

states:

Section 2 of the paragraph (8),

"The State recognizes and respects the units of local government that

is special or special that is set up with the legislation".

section 225,

"Those areas that have special status and are granted special autonomy

in addition to being governed by this Act are in place of special provision

is set in another law".

Section 226 paragraph (1),

"The provisions of this Act apply to Special Region Province

Capital Jakarta, Nanggroe Aceh Darussalam Province, Papua Province, and

39

The province of Yogyakarta Special Region to the extent is not specifically regulated in

Laws of its own".

Based on that provision, in the Union of the Republic of Indonesia

recognized and Respected and privileged areas that

the settings are special and different from other regions that

set in and subject to the Pemda Act. Likewise, it has been confirmed that

provisions in the Pemda Act apply to the Province of the Special Region Capital Jakarta

to the extent not specifically set in its own legislation, in terms of

this Act 29/2007;

[3.16] Considering that it is related to the given special status and

preferable to an area as referred to as Article 18B paragraph (1) of the Constitution

1945, the Court needs to quote the Putermination Number 81 /PUU-VIII/2010,

dated 2 March 2011, which among others considered:

" .... According to the Court, the naming of an area into a special area or special area must be a different criterion. An area is designated as a special area, if the area's privileges are related to the origin and history of the area since before the birth of the Union of the Republic of Indonesia, while an area is designated as an area of the region. special if the specificity is related to the reality and the political needs that are due to the position and the circumstances require that an area be granted special status that cannot be equated with other regions; [3.20] A draw that according to the Court, the type and scope of speciality and speciality of special areas as well as areas preferable to the Act is strongly related to: a) the right of origin attached to an area that has been recognized and kept alive; and b) the background of the establishment and the real needs of the special or speciality of the area concerned as part of the Unity State of the Republic of Indonesia. With regard to the two criteria, according to the Court of origin and history are the rights that must remain recognized, guaranteed and cannot be ignored in setting the type and scope of the speciality of an area in the Act. As for the type and scope of specificity based on the background of the formation and the real needs that require the specificity of an area to be flexible according to the real needs of the given special. the area concerned; "

With the basis of such consideration, the determination of the specificity of an area

is based on the criteria for which the reality and political needs are due

40

positions and circumstances require that an area be given special status that

cannot be equated to other areas. As for the type and scope

such specialic must be flexible set by an invite-

invite as an open law political option, according to the real needs

provided it is special for the area that concerned;

[3.17] Draw also that concerning the specificity of the Jakarta province,

The court needs to cite the Court's consideration in the Court of Justice

Number 11 /PUU-VI/2008, dated 5 August 2008, regarding the testing of Article 5

Act 29/2007 which states, " The province of DKI Jakarta serves as the Capital

Unitary State of the Republic of Indonesia which has the special duties, rights,

obligations, and certain responsibilities in the holding of government

and as The position of a foreign country representative, as well as a representative/representative

international institution". Paragraph [3.19] the letter b of the ruling states:

"Jakarta as the capital of the country is of particular nature. In particular, it contains the setting of (i) the speciation of duty, right, duty, and responsibility as the capital of the country; (ii) the seat of representatives of the friendly countries; (iii) the order of the general plan of the Jakarta layout with the general plan. grammar of the area around; (iv) special areas to host specific governmental functions managed directly by the Government. ... Set up in the granting of such special status recognized and respected under Article 18B paragraph (1) of the Constitution of 1945 (Second Amendment of the Constitution of 1945 in 2000) and Article 2 paragraph (8) Act 32/2004. The province of Jakarta, in accordance with Law 29/2007, is divided into the administrative and administrative districts of the Thousand Islands, which the mayor and its bupates are appointed. Such arrangements were based on the need for arrangements for one region that was integrated with large population and financial resources, but with less clear administrative limits. Jakarta's specialty as the nation's capital requires arrangements that are also special. According to the Court, such arrangements do not conflict with Article 18 of the paragraph (1) and (2) of the Constitution of 1945, due to the position of the equivalent constitutional norm between Article 18 (1) and verse (2) with article 18B of the 1945 Constitution."

In addition, The specialty of the province of Jakarta is also governed in Article 1 of 6 of the Act

29/2007 which states that, " Special Region of Jakarta Capital Province,

further abbreviated DKI Jakarta Province, is the province

Specicency in the holding of regional government due to its position

as Capital "Republic of the Republic of Indonesia";

41

[3.18] Draw that based on such consideration above,

regarding the special terms of the choice of Governor and Deputy Governor of Jakarta

which requires that the pair earn 50% (fifty percent)

or more and if not, there must be a second round election to vote

the couple who earned the most first and second votes, the Court

argues as follows:

[3.18.1] That UUD 1945 Does not explicitly specify the quantity and the scope of the specificity of an area. The norm about scope

specificity can only be found in the Court of Justice Number 11 /PUU-

VI/2008 as it has been quoted in advance, which in its point contains

the meaning that the type and scope of the partisness must be flexible

in accordance with the real needs provided for the specificity for the area

is concerned. Based on the Constitutional Court's ruling No. 11 /PUU-

VI/2008, the Jakarta Special includes the setting of (i) specificity

duty, rights, obligations, and responsibility as the capital of the country; (ii) the place

the position of the country. representatives of the best friends countries; (iii) public plan regularity

Jakarta layout with general plan of regional space layout; (iv) region

special to host certain managed government functions

directly by the government. Jakarta's specialty also includes an arrangement

city and administrative districts that do not have a DPRD

District/City, as well as the Mayor/Regent specified without going through the election

general. Such an arrangement is based on the need for setting for one

the region integrated with the population and financial resources

the large one, but with the less clear administrative limit of the government;

[3.18.2] That Article 1 of 6 Act 29/2007 determines the Province of Jakarta's Special Region of Jakarta is a province that has a special degree in

the holding of local government due to its position as the Capital

Unity State Republic of Indonesia. The question is, whether or not the specificity

the governance of the government includes the Governor's election. According to

the Court, government or known by the term bestuurvoering at

essentially are all activities that are outside the legislation

(the establishment of laws) and beyond activities justice.

From the perspective of the separation of power, which in general separates

powers into three spheres, namely the legislature, the executive, and the judiciary, then

42

governance (bestuurvoering) more precisely laid out as

the executive field that from the perspective of the theory of residues includes all actions and

of authority outside the legislative and judicial fields;

While the systematics of the Constitution of 1945 indicate a separation/

grouping of arrangements regarding the "Power of the State Government" in Chapter

III, the "Local Government" in Chapter VI, and the "General Election" in Chapter VIIB, matter

So not as well as the merta can be concluded that the holding of power

governments including local government cannot be separated

diametrated with the General Election which is outside the staging area

the government. According to the Court, in the perspective of the separation of powers,

the holding of elections including regional elections is

part of the holding of government powers due to being outside

the judiciary's sphere of power and the legislature. This grouping is not with

itself means that the general election is under responsibility

The President and the election of the regional head are under the answer

The Governor or the Regent/Mayor. This grouping only confirms that

general elections, including regional elections, are part of

implementation of a government function that is specific due to hosting

general elections in various countries. Modern democracy is performed by an

independent election organizer who has the authority

settings, surveillance, even in some countries have authority

judicial;

[3.18.3] That other than it, as described in paragraph [3.17] and paragraph [3.18], The province of DKI Jakarta is a province area that has many different aspects and conditions are distinct from that of the other

regions, thus requiring a special arrangement. Therefore,

according to the Jakarta DKI Provincial Supreme Court on the terms

the Governor's preference requires that the vote gain more than 50% of the vote

valid, and if no one achieves it then it is executed. election

The second round, is the specificity that is still in scope and not

contrary to the constitution. The determination of such terms is

an open law policy (opened legal policy or optionally constitutional) that

is not opposed to the constitution;

43

[3.18.4] That presenting the determination of the magnitude of the percentage of the vote is only to the argument of multicultural conditions and the degree of legitimacy,

as a specificity, is to be understood but not Fully

exactly. There are also other underlying reasons for this. Conditions

multicultural is relatively present in all areas of government.

Side with that, legitimacy is also required by the government

in all conditions, whether multicultural or not, so that actually not

there is a direct correlation with the requirement of a vote percentage of more votes

of 50% (fifty percent). Let alone so far according to the Court have not been able

described the multicultural parameters itself in relation to the magnitude

(acquisition) a vote that could provide legitimacy to a candidate's spouse

elected in the Pemilukada. According to the Court, the determination of the more

greater than that of the provincial head of the province of Jakarta should also be seen

on all aspects related to the establishment of the Provincial Government

DKI Jakarta which specific (special) as described above, among

other non-DPRD districts/cities in the province of DKI Province

Jakarta, as well as the Mayor/Deputy Mayor and the Regent/Deputy Regent specified

without through the general election;

[3.19] The draw that without judging The constitutionality of the Pemda Act especially

regarding the provisions of the second round election, as it is requested

the constitutional testing by the applicant is Article 11 of the paragraph (2) Act 29/2007

and not the electoral setting Second round in the Act, the Court

affirm that the provisions regarding the second round election in Article 11

paragraph (2) Act 29/2007 does not conflict with the 1945 Constitution.

Whereas the provisions of "In case there are no prospective spouses of the Governor

and the Deputy Governor who obtained the vote as referred to in the paragraph

(1), ..." in Section 11 of paragraph (2) Act 29/2007 specified as a condition for

there is a second round election, the Court found the fact that

those provisions are indeed different to the provisions of Article 107 of the Pemda Act

governing the conditions/prerequisites dilacquation of the round selection Second. Bill

Pemda (Law 32/2004 and its changes) set that the selected pair

is the prospective spouse of the regional head and the deputy head of the region which gained

the vote is more than 50% (fifty percent); if no one is acquiring more

of 50% then the candidate pair who earned the biggest vote above 30% (three

44

20%) is declared as the selected candidate; if there is more than

one of the candidates for the top ranking votes above

30%, then the determination of the selected candidate is done based on the territory

wider majority of the vote; if no candidate pair

earned more than 30% then the second round selection was

followed by the first winner and second winner; if the winner first

consists of three prospective couples then the first ranking determination and The second

is determined by the wider voting region; and if

the second winner consists of more than one candidate then its touch

based on the wider voting region.

The item is indicates the difference between the two laws, which is Act

29/2007 with the Act of Pemda, which governs the same differently regarding

the terms of the majority of the candidate votes as decisive

the election of the second round. The distinction is not itself

contrary to the same principle of treatment guaranteed by the constitution

[vide Article 28D paragraph (1) of the 1945 Constitution] because such discretions are possible

under the terms of the Article 18B paragraph (1) of the Constitution of 1945, i.e. setting against

areas that are special and special;

[3.20] It is balanced that based on such considerations at

above, according to the Court of invocation of the applicant regarding testing

constitutionality of Article 11 paragraph (2) Act 29/2007 is unwarranted by law;

4. KONKLUSI

Based on the assessment of the facts and laws as described in

above, the Court concluded:

[4.1] The court of competent court is prosecuting a quo;

[4.2] The petitioners have a legal position (legal standing) to

apply a quo;

[4.3] The applicant's application is unwarranted according to law.

Based on the Basic Law of the Republic of Indonesia Year

1945, Act Number 24 In 2003 on the Constitutional Court

45

as amended by the Act No. 8 of the Year 2011 on

Changes to the Law Number 24 Year 2003 on the Court

Constitution (State Sheet of the Republic of Indonesia 2011 Number 70,

Additional Gazette Republic Indonesia Number 5226), and Invite-

Invite Number 48 Of 2009 On The Power Of Justice (state Sheet

The Republic Of Indonesia 2009 Number 157, Additional Sheet Of Country

Republic Of Indonesia Number 5076);

5. AMAR RULING

Prosecute,

Declaring refusal of the petitioners;

So decided in a Meeting of Judges by seven

The judge of the Constitution, that is Moh. Mahfud MD., as Chairperson of the Members,

Hamdan Zoelva, Harjono, Anwar Usman, Ahmad Fadlil Sumadi, Maria Farida

Indrati, and Muhammad Alim, respectively as Members, at on Wednesday, the fifth, in September, year two Thousand twelve, and spoken in the plenary session of the Constitutional Court is open to the public on Thursday, the thirteenth day, in September, the year of the two thousand twelve, by the eight Judges of the Constitution, the Moh. Mahfud MD., as the Chief of the Members,

Achmad Sodiki, Hamdan Zoelva, Anwar Usman, Ahmad Fadlil Sumadi, Maria

Farida Indrati, M. Akil Mochtar, and Muhammad Alim, respectively as

Members, accompanied by Mardian A Wibowo as a Changing Panitera,

as well as attended by the Applicant, Government or representing, and

the House of Representatives or the representing;

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

46

MEMBERS,

ttd. td

Achmad Sodiki

ttd.

Hamdan Zoelva

ttd.

Anwar Usman

ttd.

Ahmad Fadlil Sumadi

ttd.

Maria Farida Indrati

ttd.

M. Akil Mochtar

ttd.

Muhammad Alim

PANITERA REPLACEMENT,

ttd.

Mardian Wibowo