Key Benefits:
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),
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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