Key Benefits:
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VERDICT Number 55 /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 at the rate first and last,
dropping the verdict in the Test case Act Number 8 of the Year
2012 about the General Election of the People's Representative Council, the Board
The Regional Representative, and the Regional People's Representative Council against Invite-
Invite the Basic State of the Republic of Indonesia in 1945, which was submitted by:
[1.2] NasDem Party, which is represented by:
1. Name: H. Patrice Rio Capella, S. H Title: NasDem Party General Chairman
Address: R. P Soeroso Street Number 44 Gondangdia Lama,
Central Jakarta;
Next is referred to as ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- : Ahmad Rofiq, S. T
Title: NasDem Party General Secretary
Address: R. P Soeroso Road Number 44 Gondangdia Lama,
Central Jakarta;
Next is referred to as ------------------------------------------------ Applicant II; In this case according to a special letter dated 29 May 2012 gives
power to: 1). Effendi Syahputra, S. H; 2). Janses E. Sihaloho, S. H; 3). Anton Febrianto, SH; 4). Muhammad Rullyandi, S. H; 5). Sondang Tampubolon, S. H; 6). M. Zaimul Umam, S.H., M. H; 7). Adidharma Wicaksono, S. H; and 8). Tomson Situmeang, S. H; keEVERYAdvocates and Pengabdi Legal Aid incorporated on the Party Advocacy Agency (BAHU) Party
NasDem, which addresses the RP Road. Soeroso Number 44 Gondangdia Lama,
Central Jakarta, acting for and on behalf of the power giver;
Next is referred to as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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[1.3] Reading the applicant's request;
Hearing the applicant's description;
Hearing the Government Description;
Hearing and reading the Representative Council's written
People;
Hearing and reading the applicant's written description;
Checking the petitioner's evidence;
Reading the Applicant's written conclusion;
2. SITTING LAWSUIT
[2.1] A draw that the petitioners have applied for
dated May 30, 2012, which is accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) based on Akta Admission
File Request Number 195 /PAN.MK/ 2012 on May 30, 2012 and
noted in the Book of the Constitutional Case with Number 55 /PUU-X/2012
on June 5, 2012, then corrected and accepted to the Panyeraan
The court on 28 June 2012, which was at the following as:
I . INTRODUCTION Act No. 8 of 2012 on Member Elections
House of Representatives, Regional Representative Council, and Council
Regional People's Representative of the Republic of State Basic Law
Indonesia of the Year 1945 Is A Testament To The Decline Of Democratic Quality,
The Harassment Of The Principle Of State Law, And The Withdrawal Of Rights
Human Rights
A) Formation Process: The Decline Of The Quality Of Democracy That The existence Of The Design The bill
passed by the House on 12 April 2012, have received a lot of receiving
criticism and rejection from various parties, for example just as
done by the NasDem Party.
The controversy and denial showed that the Act
Number 8 of the Year 2012 was about The General Election of Representatives, DPD and
DPRD is the problematic Act of the charge
Its substance. It's a rejection of a wide range of activists.
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Election, a political party that is about to nominate an Election participant
to academia and a broad community with all
the sincerity of participating in the development of democracy in the country
The Republic of Indonesia is on the issue of the Election, it turns out
has not been an important concern for our people's representatives in the House. Public voice
as if without meaning and public participation becomes useless. That is,
in the current democracy in Indonesia through the process of formation of the Act
Elections are still a neglected society group that
The new Parpol as a candidate for the election in the 2014 elections. This is seen
with the large Parpol exclusivity existing in the House with the system
verification that is disproportionate and does not meet the element of justice
to each Parpol including the new Parpol. This verification system is highly
contrary to the principle of justice for justice that
builds. That elections are a means of embodiment
the sovereignty of the people to produce aspirational representatives and
quality based on Pancasila and the State Basic Law
Republic of Indonesia Year 1945, that The general election needs to guarantee
channel the people's voices directly, public, free, secret,
honest and fair for the sake of democracy. Change of Act
Number 10 of 2008 on Board Member Elections
The People's Representative, Regional Representative Council, and the House of Representatives
The updated People's population must conform to the demands and dynamics
community progress and ensure Election objectives are reached.
Thus the establishment of the Election Act has decays away from
the desired ideals.
B) The Harassment Against the Principles of the State of Law That this Election Act is a concrete example of violation of principle-
the principle of democracy as one the principle in the legal state
as stated in Article 1 of the paragraph (3) of the Basic Law
The State of the Republic of Indonesia in 1945 (UUD 1945). In the country
the law, must be embraced and practiced the existence of a democratic principle or
the sovereignty of the people [Article 1 of the paragraph (2) of the 1945 Constitution] which states that
sovereignty is in the hands of the people and exercised according to the Invite-
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Invite the base in which the decision process
pays attention to the principle of constitutional rights as set to
guarantees the role as well as the public in any regulatory regulation
The specified and enforced legislation can be expected
really reflects the feeling of justice living in the middle
society.
The laws and regulations applicable should not be
set unilaterally by and/or solely for the benefit of
rulers as well as contrary to the principles of democracy. The law
is not intended to only guarantee the interests of a handful of people
in power, but instead a guarantee of interest would be fair to
all persons without exception. That is, the legal state (rechtsstaat) that
developed is not absolute rechtsstaat, but democratische
rechtsstaat or a democratic legal state. In other words
in any state of the law that is nomocratic should be guaranteed
there is a democracy, as in every democratic country
must be guaranteed the convening is based on the law.
Constitution of 1945 declare raph (1) and paragraph (2) of the Law
Number 8 of the Year 2012 on the Elections of the Representatives, the DPD and the DPRD.
as for Article 8 of the paragraph (1) that reads:
" The Political Party of the Last Election Which meets the threshold
The votes of the number of valid votes nationally are set to be
The party's political party elections to the next election ".
As well as Article 8 of the paragraph (2) that reads:
The political party that does not meet the electoral threshold
at previous elections or a new political party may be
Election Participant after meeting the requirements:
a. status of the legal entity in accordance with the Act on
The Political Party;
b. has affairs across the province;
c. has a management of 75% (seventy-five percent) of the amount
county/city in the province in question;
d. has management at 50% (fifty percent) of the amount
districts in the district/city are concerned;
e. includes at least 30% (thirty percent)
representation of women on level political party affairs
center;
f. has a member of at least 1,000 (a thousand) people or
1/1,000 (one thousand) of the number of Population on the subject
The political party as is attested in c.
with Member tag-card ownership;
g. has a fixed office for management at the center level,
province, and county/city until the final stage of the Election;
h. submits the name, emblem, and image of the political party to
KPU; and
i. submitting an Election Campaign fund account number on behalf of
Political party to the KPU.
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Throughout the phrase that reads: "that does not meet the threshold
votes in the previous election or the new political party"
(the applicant's bold print) has been potentially to obstructing the applicant
in order to execute its vision and mission. The provision of verification in
Section 8 of the paragraph (1) and paragraph (2) of the phrase as referred to in
in the a quo Act is highly of a lenification
against the party that has met the threshold of the acquisition. vote
at previous elections. And when compared to the new party and
the non-parliamentary party is very clearly discriminatory that results in
a constitutional loss for the applicant. The applicant's vision of the mission
is to establish the democratic politics of justice that opens
the political participation of the people by opening the public access to the
the whole and to do legal reform with the making
the constitution of the 1945 Constitution as a national political contract.
11. That based on the above, it is possible to occur
the circumstances in which the applicant has the same affairs or
even greater and wider up to the level of district with the party
the politics that has met the threshold. National limits remain unusable
following the 2014 Election.
12. That the applicant's obligation does not mandatory verification
to other political parties resulting in the applicant to lose start in
Election preparation, this is very clearly harming the applicant.
IV. LEGAL FACT -That is the desire of the last Election participant's political parties
that has met the threshold for the elimination of the new party,
by doing the tightening in terms of the requirement as the party of the participants
Elections as set forth in Section 8 of the paragraph (1) and paragraph (2)
The Act Act as referred to above.
-That the Election participant's requirements in Section 8 of the paragraph (2) Invite-
Invite a quo More stringent than the provisions of the Act
before only apply to the party new politics and the old political party
that did not meet the national threshold.
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-That on April 12, 2012 Draft Law on
Election Members of the House, DPD and DPRD were passed through the plenary Meeting
DPR.
-That after the bill was passed to Act No. 8 of the Year
2012 on Election Members of the House, DPD and DPRD through the meeting
pariplenary of the House, the applicant assessed the provisions contained in Article 8
paragraph (1) and paragraph (2) harm the constitutional right of the applicant.
V. THE REASONS FOR FILING A MATERIAL TEST A. That Section 8 paragraph (1) and paragraph (2) of the Law No. 8 Year 2012
on the Election of Representatives, DPD and the DPRD do not meet the principle of justice
as guaranteed in the Election principle as set in Section
22E paragraph (1) UUD 1945
1. That Article 8 paragraph (1) of the a quo Act states:
" The Political Party of the last elections to meet the threshold
votes of the number of valid votes nationwide are set
as the party The politics of the election to the next election ".
Article 8 paragraph (2) that reads:
The political party that does not meet the threshold of votes
at previous elections or a new political party could be
Participants Elections after meeting the requirements:
a. status of the legal entity in accordance with the Act on Party
Politics;
b. has affairs across the province;
c. has a management of 75% (seventy-five percent) of the amount
county/city in the province in question;
d. has management at 50% (fifty percent) of the amount
districts in the district/city are concerned;
e. includes at least 30% (thirty percent)
representation of women on level political party affairs
center;
f. has a member of at least 1,000 (a thousand) people or
1/1,000 (one thousander) of the number of Population on the DeBusiness
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The political party as it is in c is attested
with the ownership card of the member;
g. has a fixed office for management at the center level,
province, and county/city until the final stage of the Election;
h. submits the name, emblem, and image of the political party to
KPU; and
i. submitting an Election Campaign fund account number on behalf of
Political party to the KPU.
That the provisions are above, contrary to Article 22E of the paragraph (1) of the 1945 Constitution
2. That Article 22E of the paragraph (1) of the Constitution of 1945 reads as follows:
amalan live daily. This culture will create a charactera nation with dignity and sustaining the State's readiness in
global life.
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10. That based on the applicant ' s vision and mission contained in Article 5
paragraph (1) AD/ART the applicant aimed at building the system
The Political and Democratic Politics will be violated its constitutional right
with Under Section 8 of the parag
5. That while, in Article 8 of the paragraph (2) only requires a party
politics that does not meet the voting threshold at last election
and the New Party must follow the verification to be an Election participant
as set in Article 8 paragraph (2) that reads:
The political party that does not meet the threshold of votes cast on
Previous elections or a new political party may be an Election participant
after fulfilling requirements:
a. status of the legal entity in accordance with the Act on
The Political Party;
b. has affairs across the province;
c. has a management of 75% (seventy-five percent) of the amount
county/city in the province in question;
d. has management at 50% (fifty percent) of the amount
districts in the county/city are concerned;
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e. includes at least 30% (thirty percent)
representation of women on level political party affairs
center;
f. has a member of at least 1,000 (a thousand) people or
1/1,000 (one thousand) of the number of Population on the subject
The political party as is attested in c.
with Member tag-card ownership;
g. has a fixed office for management at the center level,
province, and county/city until the final stage of the Election;
h. submits the name, emblem, and image of the political party to
KPU; and
i. submitting an Election Campaign fund account number on behalf of
Political party to the KPU. 6. That under Article 8 of the a quo Act there are 3 categories
political parties (1) Political Parties that have met the threshold
national as in Article 8 paragraph (1) of the Act a quo, (2)
Political party of the 2009 election participants did not meet the threshold
limit, and (3) the new political party that would contest the Election of the Year
2014. That based on the three categories above only provide
preferable to a political party that has met the threshold
the national boundary as in Article 8 of the paragraph (1), so that it occurs
injustice.
7. That with the a quo clause there will be a dualism of terms
to follow the 2014 Election that first party
following elections under Article 8 of paragraph (1) the a quo Act
not following verification under Section 8 of the paragraph (2) of the Act a
quo. That second and third political parties that do not meet the provisions
Article 8 paragraph (1) must follow verification under Article 8 of the paragraph (2).
The dualism gives rise to legal uncertainty over
the life of the political party to be an Election participant.
8. That the above conditions have actually provided
a different Election participant's requirement against the Election participants and
this is contrary to the provisions of Article 22E paragraph (1), Section 28D
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paragraph (1), and Article 28I paragraph (2) of the Constitution of 1945 as
is mentioned above.
9. That unequal treatment was highly visible between the political parties
A 2009 election participant who had met the 2.5% threshold
of the nationally legitimate number of votes as set in
Article 202 paragraph (1) Bill Number 10 of 2008 which has been
amended with the a quo Act of Article 8 of the paragraph (1). As for
a new political party candidate for the 2014 election and political party
that did not pass the threshold must meet the provisions of Article 8 of the paragraph
(2) the letter c and the letter e which reads as follows;
c. has management across the province;
d. has a management of 75% (seventy-five percent) of the amount
county/city in the province concerned;
e. have business at 50% (fifty percent) of the amount
districts in county/city are concerned; 10. That the political parties that in 2009 had met
the 2.5% threshold of nationally valid votes could be
automatically set as the 2014 Election participants ' political party
as set in Article 8 paragraph (1) of the a quo Act, whereas
when they register as the political party of the 2009 Election participants
with much lighter terms than the requirements for
the new political party candidates for the Election 2014. Political party requirements
to be the participants of the 2009 Election in Section 8 of the paragraph (1)
letter b and letter c Act No. 10 of 2008 on
Elections are as follows;
b. Two-thirds of the total province;
c. has an administration in 2/3 (two-thirds) of the number of counties/cities in
the province is concerned;
11. That based on the requirements of a new political party the candidate of the Election
above has been the same treatment. This
is due to a political party based on Article 8 of the paragraph (1) not
there is a requirement to have affairs in each province and not
there is an obligation to have a 50% responsibility (fifty
perhundred) the number of sub-districts in the district/city concerned.
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12. That the legal considerations of the Constitutional Court in the ruling
case number 15 /PUU-IX/2011 related to the testing of Article 51 of the paragraph (1)
Act Number 2 of the Year 2011 on Changes to the Invite-
Invite Number 2 Year 2008 on Political parties that the existence of the phrase
"remain recognized for its existence with the obligation to make adjustments
against this Act by following verification" is not
clearly means. The Court argued the Bill
should have differentiated between the manner of formation or establishment
political parties with rules about the terms imposed
to the political parties with the rules of the terms which is charged
to the political party for a political party to contest the
general, as well as the provisions set about the institution of the House. Tata
the way the establishment or establishment of a political party is a grammar that
must be done by citizens who will establish a political party,
so the established political party is gaining the status of the body
The law. As for the terms of the political party to be able to follow
the general election is the terms determined by the Invite-
Invite its own to be an Election participant to be able to be
Election participants to put The representative is in the institution
The representative should be achieved through therty affairs
across the province and also requires business to be up to the level
subdistrict.
4. That the problem arose because of the a quo
that did not apply for verification of all parties. Norm
in Article 8 of the paragraph (1) of the Act a quo has granted
privileges for the party's political parties in the last elections which
fulfills the national vote threshold as an election participant
at the election next automatically without following the process
verification. Act Number 8 of the Year 2012 of the Member General Election
DPR, DPD and DPRD are legal defects because does not meet the principle of justice as guaranteed in the election principle, uncertainties the law and violates the principle of equal treatment before the law and discriminatory
thus resulting in the Act No. 8 Year 2012 on
House Member Election, DPD and DPRD Section 8 paragraph (1) and verse
(2) to the extent of the phrase as opposed to UUD 1945.
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Therefore, please the Constitutional Court grant the applicant request as described in the petitum
E. Petitum Based on those above, we appeal to the Court
The Constitution to examine and discontinue this test right as
below:
IN SUBJECT OF APPLICATION 1. Accept and grant the entire request of this test;
2. States Section 8 paragraph (1) of the Act No. 8 of 2012
on Election Members of the House, DPD and DPRD conflicts with
with Article 22E of paragraph (1), Article 28D of paragraph (1), and Article 28I paragraph (2)
Constitution of 1945;
3. Represent Section 8 of the paragraph (2) of the Act No. 8 of the Year 2012
on the Elections of the Representatives, DPD and the DPRD along the phrase, "
does not meet the voting threshold for the Election
or a new political party contrary to
Article 22E paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2) UUD
1945;
4. States Section 8 paragraph (1) and Section 8 of the paragraph (2) of the phrase "
does not meet the voting threshold for the election
before or the new political party has no power.
binding;
5. Ordering a loading of this ruling in the Republic News of the Republic
Indonesia in no time at least 30 (thirty) business days
since the verdict is spoken.
Or if the assembly of judges of the Constitutional Court argues another, please
The ruling that is as fair as (ex aequo et bono)
[2.2] weighed that to prove the Applicant
filing the evidence papers written evidence of P-1 to P-17 as follows:
1. Proof of P-1: Photocopy Act No. 8 of 2012 on
General Elections of the People's Representative Council, Council
Regional Representative and Regional People's Representative Council;
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2. Evidence P-2: Photocopy of the State Basic Law of the Republic of Indonesia
Year 1945;
3. Evidence P-3: Photocopied Act No. 10 of 2008 on
General Elections of the People's Representative Council, Council
Regional Representative, and the Regional People's Representative Council;
4. Evidence P-4: Photocopy Act No. 12 of 2011 on
The Formation of the Act of Invundation;
5. Proof P-5: Photocopy of the Decree of the Minister of Law and Human Rights
Number M. HH-16.AH.11.01.Th. 2011 on Unrest
Nasdem Party As the Legal Body;
6. Evidence P-6: Photocopy of the Party Central Leadership Board's Decision
NasDem Number 583-SK/DPP-NasDem/VII/2011 on
Confirmation of the revision of the structure of the Central Leadership Board
NasDem;
7. Evidence P-7: Photocopy of the Establishment of the Establishment of the "NasDem" Party;
8. Evidence P-8: Photocopy of Act No. 2 of 2011 on
Changes to the Number 2 Act 2008
about the Political Party;
9. Evidence P-9: Photocopy of NIK on behalf of H. Patrice Rio Capella, S.H., and
Ahmad Rofiq, S. T
10.Evidence P-10: Photocopy Number 10 /PUU-VI/2008 about Testing
Act No. 10 of 2008 on Elections
General DPR, DPD, DPRD;
11.Evidence P-11: Photocopy Number 22-24/PUU-VI/2008 about
Testing Act No. 10 of 2008 on
House General Election, DPD, DPRD;
12.Evidence P-12: Photocopy Verdict 3/PUU-VII/2009 on Testing
Act No. 10 of 2008 on Elections
General DPR, DPD, DPRD;
13.Evidence P-13: Photocopy Number 15 /PUU-IX/2011 about Changes
above Law No. 2 of 2008 on Party
Politics;
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14.Proof P-14: Photocopy Number 27 /PUU-V/2007 about Testing
Act Number 3 of the Year 2005 on Kesports
National;
15.Evidence P-15: Photocopy of the Court Number 12 /PUU-VI/2008 on
Testing of Act No. 10 of 2008 on
General Elections of the House of Representatives, Council
Regional Representative, and the Regional People's Representative Council;
16.Evidence P-16: Photocopy of the Court of Justice No. 15 /PUU-VI/2008 on
Testing of Act No. 10 of 2008 on
General Election of the People's Representative Council, Council
Regional Representative and Regional People's Representative Council;
17.Evidence P-17: Photocopy of the Court of Justice No. 19 /PUU-VIII/2010
about the Act Testing No. 10 of 2008
about the General Election of the People's Representative Council, the Board
Regional Representative and the Regional People's Representative Council;
In addition, the petitioners submitted 6 (six) experts who had
heard of his pending review on July 31, 2012 and August 6
2012 and has submitted a written caption at its point as
following:
1. Prof. Dr. HM. Laica Marzuki, S. H
Article 8 of the paragraph (1) and paragraph (2) Act No. 8 of 2012 on
General Election of Representatives, DPD and DPRD contains discrimination,
treating certain groups of political parties differently with
other parties with respect to the designation of political party requirements
Election participants;
The requirements of the 2014 Election participants ' political party requirements
are treated differently to the designation of the requirements political party
in 2009. It is not only discriminatory but also unfair,
in violation of Article 28D paragraph (1) of the 1945 Constitution;
Article 8 paragraph (1) Act No. 8 of 2012 is not only
discriminatory, unfair but also speculative;
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Section 8 paragraph (1) paragraph (2) Act No. 8 of 2012 is not only
discriminatory, unfair but also irrational.
2. Prof. Dr. I Gde Dewa Pantja Astawa, S. H
The verification stage for the new political party was associated with the requirement that
may qualify for the 2014 election participants in 2014
coming. Such a necessity is felt unfairly and is
discriminatory by the new political party. Because it only applies to the party
new politics. While the old parpol or parpol already took part
in previous elections and met the threshold nationally,
is free from that kleharusan;
The Adanya must be for the new parpol to follow the stage verification that
may be a parpol of the upcoming election participant, perceived as
subjects, but power struggles/means of power struggle, both at the central level
and in the area. The current political party is only the
power tool machine, not to serve in the interests
the people are much in achieving a nation-state and state goal.
The political party does not run its function properly and Max.
D. conclusion That what he has described as such a bag may be concluded that
Section 8 of the paragraph (1) and paragraph (2) of the length of the phrase as intended
he verification of the verification conducted in 2009 is occurrence
The double candidacy was conducted by Parpol. This is due to the candidate
the legislature turns out to have two political party memberships and is willing
nominated by both political parties, so that it appears its name in
the list of candidates remains as the candidate of two. political party;
Another Fenemena that indicates the verification flaws were done,
when it was done to all parties was the party administrator who
signed the party's nomination in charge
sign the party ' s nomination for acting as a secretary, at
the same time to be caleg from the other party and managed to qualify
be a board member.
6. Dr. Irman Putra Sidin, S.H., M. H
The voting threshold requirement cannot be substituted
in terms of a parpol ' s constitutional terms to contest the election without going through the process
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verification by Election organizers. The verification requirement should be fixed
for all Parpol, both of which are already past the threshold
vote acquisition, both the old Parpol and the new Parpol. However, if
it turns out that the verification indicates that one or more
the old parpol was not able to qualify the election dispute according to
applicable law provisions, then the parpol can still be a
Election participants with the help of the acquisition threshold
vote as a transfer bridge;
The provisions of the threshold for the overall sound acquisition are only
the transition bridge norm to enact state of law
previously for the parpol that already meets the p-eracquisition threshold
votes. But it turns out, the terms of the disservice are becoming more difficult than the old
. However, if it turns out to be a previous election participant
according to the prevailing law, when the previous election remains a parpol
it is not eligible for the dispute, then the parpol that
is concerned is still not able to set to be an election participant that
will come.
[2.3] A draw that in response to the proposal of the
applicant, the Government has delivered opening statement in the trial
on Tuesday, The date of July 17, 2012, which is the following:
I. Subject Of The Petitioner 1. That the petitioners considered the publication Invite-
Invite Number 8 of 2012 (later called Act 8/2012),
has been detriing to the applicant. Because with the publication invite-invite, resulting in the loss of of the people's sovereignty and the representation of the people's politics in Elections;
2. That the Act of 8/2012 was judged to have undermined the indifference
or kebhinekatunggalikaan and unity, as well as resulting in local entities and communities not terwadahi and represented in the House and DPRD;
3. That with the publication of a a quo that is judged to have led to legal uncertainty the fair (fair fair
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uncertainty), creates a chaos society and deviates from the goal to form The Act is better because the political party The applicant does not get a guarantee in the error Election Year 2014;
4. In short, according to the Applicant, Section 8 of the paragraph (1), Article 208 of the Act 8/2012 is contrary to Article 1 of the paragraph (2), Section 22A, Section 22E paragraph (1) and paragraph (3), Article 27 of the paragraph (1), Section 28C paragraph (2), Section 28D paragraph (1), Article 28D paragraph (3), and Section 28I paragraph (2) of the Republic of State Basic Law Indonesia of 1945;
II. Legal Position (Legal Standing) The applicant pursuant to the provisions of Article 51 of the paragraph (1) of the Act Number 24 of 2003 on the Constitutional Court (subsequently called the Act of MK)
mentioned that the applicant is a party that considers the rights and/or of its constitutional obligations being harmed by the enactment of the Act. Further, the Constitutional Court has given the definition and limitation
cumulatively about the rights and/or constitutional authority arising due to the enactment of an Act according to Article 51 of the paragraph (1) UU MK (vide Putermination Number 006 /PUU-III/2005 and Putermination Number 11 /PUU-V/2007). As such, the Government needs to question
the interests of the petitioners, whether it is appropriate that the
considers the rights and/or its constitutional authority to be harmed by
under the Act of 8/2012?
In addition, whether there is a constitutional loss of the applicant
that is special, specific, and actual or at least its potential
which reasonable reasoning can surely occur? And
whether there is a causal link (causal verband) between the loss and
the enactment of the legislation is being moveed to be tested;
According to the Government, the applicant cannot postulate
constitutional loss Which he suffers for the treatment of Article 8 paragraph (1)
and paragraph (2), as well as Article 208 of the Act of 8/2012. Nevertheless, the Government
gives up fully to His Majesty the Chief Justice
Constitution to consider and judge it, whether the applicant
has a legal standing (legal standing) or not, as Which
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determined by Article 51 of the paragraph (1) of the 24/2003 Act, and based on the ruling-
the preceding Constitutional Court ruling (vide Putermination Number 006 /PUU-
III/2005 and Putermination Number 11 /PUU-V/2007);
III. Government Explanation of the Requested Requests for Tested 1. The set up of the formyl test is set in Section 51 of paragraph (3) the letter a
juncto Section 51A paragraph (3) of the Act of MK as amended with the Act
8/2012 that states, "The applicant outlines clearly
that the establishment of the does not comply with the provisions under the Constitution of the Constitution of 1945. " Article 22A of the 1945 Constitution
states, "More provisions about the grammar way of formation
legislation is governed by the legislation."; 2. Thus, according to the Government, the formyl-related testing with whether
the formation of the statute has been appropriate or not with the provisions of the Constitution of 1945 or under the laws of that govern the layout creation of rules legislation, Law Number 12 Year 2011 on the Establishment of the Perundang-Invitation Regulation and in formyl testing that
being the point the concern is whether the establishment of a Invite-Invite the formyl testing has met terms and conditions, as gorious issue faced by the political party;
Many benefits if verification is done against all prospective participants
elections in order not to overlap with the affairs of the business and or
overlap Membership. In addition, if it is done
correctly, it avoes the symptom jockey's symptoms when verified
and the member's jockey when verified. Other benefits related to
verify domicile address of the office of Parpol office, making it easier for communication
KPU with Parpol administrators at all levels;
T p>14. The government argued that about the various threshold settings
nationwide it was shored by the 1945 Constitution to be set up
with or in the act discriminated against. Then legal
policy threshold nationally is so unopposed
with UUD 1945;
37
15. The national threshold policy set forth in the Article
208 Act 8/2012 constitutes the Election of which Article 22E paragraph (6)
Constitution of 1945 is delegated to the Act to
set it up with the Act of Law. Also, so not
contrary to the constitution because the a quo provision does not
contain discriminatory elements, given that
the threshold policy nationally applies to all
The political party of the election participants. It is objectively applicable to
all Parpol Election participants with all members of the candidate
DPR, of Parpol Election participants without exception, and no factors
differentiator, race, religion, gender, and gender. social, and other,
in question of Law 39/1999 on human rights and International
Covenant on Civil Political Rights;
16. National PT policy in Article 208 of the Act of 8/2012 at all
does not ignore the principles of human rights contained in Article
28D paragraph (1) and paragraph (3) of the 1945 Constitution due to each citizen
and the party's political party The election is treated equally and gets
equal opportunity, starting a democratic competition in
Election 2014 which is the nation's needs and interests
Indonesia forward.
IV. Conclusion Based on that explanation above, the Government pleads to Yang
Noble Chairman of the Assembly of Justice of the Constitutional Court examining, prosecuting,
and severing the approval of Act 8/2012 against UUD 1945 may
provides the following decision:
1. Stating the applicant does not have a legal position (legal
standing);
2. Rejecting the applicant ' s testing request entirely or
at least stated the request for the applicant could not
received (niet ontvankelijk verklaard);
3. Received overall Government information;
4. Stating the provisions of Article 8 of the paragraph (1) and paragraph (2), as well as Article 208
The Act of 8/2012 does not conflict with Article 22A paragraph (1) and paragraph (2),
38
Article 22E paragraph (1) and paragraph (3), Section 27 paragraph (1), Section 28C paragraph (2),
Section 28D paragraph (1) and paragraph (3), and Article 28I paragraph (2) of the 1945 Constitution.
[2.4] A draw that the People's Representative Council has been heard
its interest in the July 31, 2012 trial and submitted
its written statement on August 9, 2012 through the Court of Justice
which on the following:
A. THE PROVISIONS OF THE LAW NUMBER 8 IN 2012 ABOUT
THE GENERAL ELECTIONS OF THE HOUSE, THE DPD, AND THE DPRD WHICH
ARE MOHONED FOR TESTING ON THE BASIC LEGISLATION
THE STATE OF THE REPUBLIC OF INDONESIA IN 1945.
The applicant in his request submitted the testing of Article 8 of the paragraph (1)
and paragraph (2) of the Law No. 8 of the Year 2012 of the General Election
Member of the House, DPD and DPRD.
As for Section 8 of the paragraph (1):
" The Political Party of the Last Election Which meets the threshold
The national vote share of the number of valid votes is set to be
The political party of the participants election at the next election ".
The explanation of Article 8 of the paragraph (1) reads:
The political party that does not meet the threshold of votes on
Previous elections or a new political party can being an Election Participant
after meeting the requirements:
a. the status of the legal entity in accordance with the Act on Party
Politics;
b. has affairs across the province;
c. has a management of 75% (seventy-five percent) of the amount
the county/city in the province is concerned;
d. has management at 50% (fifty percent) of the number of subdistricts
in the county/city in question;
e. Includes at least 30% (thirty percent) of representation
females at the central political party business;
f. have members of at least 1,000 (thousand) people or 1/1,000
(one thousander) of the number of Population on political party affairs
39
as indicated in the letter c as evidenced by the entitlement
member card card;
g. have a fixed office for the management at the center level,
province, and county/city until the last stage of the Election;
h. submitted the name, emblem, and image of the political party to the KPU;
and
i. submit the Election campaign funds account number on behalf of the party
politics to the KPU.
The applicant assumes the provisions of Article 8 of the paragraph (1) and the paragraph (2) Invite-
Invite Number 8 of 2012 in conflict with Article 22E verse (1), Article
28D paragraph (1), and 28I paragraph (2) of the 1945 Constitution.
Section 22E paragraph (1) reads:
(1) The general election is executed in person, general, free, secret,
honestly, and is fair every five years.
Article 28D paragraph (1) reads:
(1) Any person entitled to the recognition, warranty, protection, and
fair legal certainty as well as the same treatment before the law
Article 28I paragraph (2) reads:
(2) Any person is entitled to be free of the treatment of the discriminatory
on the basis of what pu and entitled to obtain protection against
that discriminatory treatment was
B. RIGHTS AND/OR CONSTITUTIONAL AUTHORITY DEEMED
THE APPLICANT HAS BEEN HARMED BY THE EXPIRING INVITE-
INVITE NUMBER 8 OF 2012 ABOUT THE GENERAL ELECTION
REPRESENTATIVE OF THE HOUSE, DPD AND DPRD
THE PETITIONERS IN THE PLEA A quo suggests that the right
constitutionality has been harmed and violated or at least any potential
which according to reasonable reasoning may be assured of a loss by
the enactment of Article 8 of the paragraph (1) and the paragraph (2) Act Number 8 of the Year 2012
at the bottom as follows:
a. That by doing so, Section 8 (1) and paragraph (2) Invite-
Invite to the Legislative Elections as long as the phrase reads: " which is not
meets the threshold of votes in the previous election or
40
the new political party " has thp>members, communities, nation and country, as well as maintaining the integrity
Unity State of the Republic of Indonesia based on Pancasila and
The Constitution of the State of the Republic of Indonesia Year 1945.
The spirit requires PT nationally is to form
a national political party, whether in its secretariacy,
and representation in the House, and the county/city DPRD. With
so, the political parties can effectively fight for and
defend the political interests both at the central and regional level;
< on of Representatives, DPD and DPRDAgainst the application for testing of Article 8 of the paragraph (1) and paragraph (2)
Act No. 8 of the Year 2012 of the General Election Members
DPR, DPR and DPRD, DPR delivered the following caption:
a. That as an attempt to create a presidential system that
is effective and efficient with some of the principles that we must fulfill, then
set out some provisions that are the refinement of the provisions
previously set in Law Number 10 Year 2008.
To be known that the asas-asas of the presidential system
propounded by Lijphart is as follows:
1. executive stability based on the president ' s term
in particular (fixed term);
2. the selection of the head of government by the people is considered more legitimate;
and
3. that the separation of powers means a constrained government
so that there is an individual's protection of the tyranny of the government.
b. That with some such asas, then-forming an invite-invite attempt to get closer to the Presidential System
to take place in Indonesia better. That is reflected in
44
provisions of Article 8 of the paragraph (2) that political parties are about to follow
elections must meet a number of requirements. Realize that there is a
phrase "...that does not meet the threshold of voting on
Previous elections or a new political party" which is
is a reward and punishment mechanism for every
political party that will contest the election. It is also realised that threshold
is not the only way to simplify the political party, but
threshold should also be recognized as one of the most
ways used in various countries to limit the number of political parties
that can sit in parliament and in Act No. 8
The year 2012 is one of the requirements for political parties to
following the next elections reflected in the provisions of Article 8
paragraph (1) Act No. 8 of 2012. The determination of threshold
is a electoral system engineering in order to create
a more qualified electoral system. DPR, as an agency
The Act has the authority to make
that policy (open legal policy) that does not conflict with the Constitution
1945. Unwitted by all Parpol that the provisions of Article 8 paragraph
(1) Act No. 8 of 2012 are not provisions
discriminatory but it is precisely the weight requirement of a Parpol
to be able to take part in the Election next and the provision
applies to all political parties. Because a Parpol is not easy
to be able to qualify PT if it does not get the people's support in
the election. A Parpol is not sufficient only with qualified capital
administrative to the Election, but the terms of recognition of support
the people are the most important. It looks real in terms of qualifying PT. c. Related to the objections of the Applicant by doing so
the provisions of Article 8 of the paragraph (1) and the paragraph (2) are considered detriable
and are discriminatory, and will lead to an uncertainty
the laws and treatment that not equal in law for all parties
politics so that the petitioners will be deterred from the rights
constitutionality in terms of advancing themselves in the fight for
the rights collectively to the building of society, can be explained
that actually provisions of article a quo applies to all parties
45
politics if the concerned did not qualify threshold at the upcoming Elections
. Because, the outcome of an Election in which the political party
obtained a number of votes that could then be converted to
the seat is an indication or the main parameter of whether the political party
has the support of the people. significant or not.
The election is the momentum to see such support. By
because that provision of such requirements is not a form
discriminatory. d. The provision also sees that there is no ban on any citizens
the country to form a political party and next to contest
the election. Because, it is already set in the Act of
The Political Party with a number of requirements and the Election Act
it is set about a political party that can participate in the Election with
a number of requirements.
e. As an explanation must also be realized that the political parties that meet the threshold at the previous election, should also
submit a number of documents as set forth in
Article 8 of the paragraph (2) of the Act a quo as a form of seriousness and
a commitment to whether or not the political party is going to the Election again or
not, although in Article 8 of the paragraph (1) the a quo
is mentioned automatically set as an Election participant. However
must be established with the provisions of Article 17 of the paragraph (1) of the Act a
quo which states must be addressed to a number of documents
as referred to in Article 15 of the Act a quo with
differences only in Article 15 of the letter f a quo that
replaced with evidence of voting gains in previous elections that
reached threshold and the number of seats in the DPR and DPRD
issued by The PU. f. As for the need for verification of the political parties as
mentioned in Article 16 is intended as a form of seriousness and
the ingenuity of not repeating the various practices of 2009 at
where the KPU is often find a fictitious office and a fictitious membership
when done verification. It is also a process
that fair in order to see how the existence of such a political party is
46
during the post-election period. It was in
efforts to increase the institutional capacity of the political party that did not
only work ahead of the election only.
g. To be known that all fractions expressed emphatically that
there is no discrimination in the process of electoral action. However
should be given some kind of reward for the political party that
already reached the threshold at the previous election with a fixed
with various administrative evidence through the submission of a number
requirements to the KPU as mentioned in advance.
It was one of the emphasis in the discussion process
The bill on Elections by Pansus that to contest the Election should
meet a number of good requirements for the Parpol that participated in the election
before and A completely new parpol for the realization
a quality, democratic, and accountable election.
next is verification for determination of Parpol ' s readiness in
following the election aConstitutional Court Termination
Perkara Number 006 /PUU-III/2005 and Perkara Number 011 /PUU-V/2007DPR
handing over fully to Chairman/Assembly of Justice
The mulya Constitution to consider and assess whether
The applicant has a legal standing (legal standing) as
governed by Article 51 of the paragraph (1) MK Act and based on the Putermination Court
The Perkara Constitution Number 006 /PUU-III/2005 and Perkara Number 011 /PUU-
V/2007
2. Testing of the Act No. 8 of 2012 On the Electi o by the Act
which is being honed for testing;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postulate that
will or shall no longer occur;
Draw that based on the description as such in paragraph [3.5] and paragraph [3.6] above, further the Court will consider the legal standing (legal standing) the applicant in the application
a quo as follows:
[3.7] Draw that the petitioners are postulate as a legal entity
the public and assume the constitutional right granted by the Constitution
1945:
Article 28D paragraph (1) states, "Everyone is entitled to the recognition,
guarantees, protection, and fair legal certainty as well as the treatment of which
is equal before the law ";
Article 28E paragraph (1) states," The General Election is exercised
directly, general, free, confidential, honest and fair every five years ";
Article 28I paragraph (2) states," Everyone is entitled to be free of the treatment
that is discriminatory on any basis and is entitled to
protection against that discriminatory treatment".
[3.8] Draws That The Applicant feeling aggrieved:
Article 8 paragraph (1) Act 8/2012 declares, " Political Party of Elections in the last election to meet the threshold of votes from the number of valid votes nationally defined as the Political Party "Election participant in the next election".
Article 8 paragraph (2) Act 8/2012 throughout the phrase, "which does not meet the threshold
the limit of the electoral votes on previous elections or new political parties".
51
The applicant in the plea a quo qualies the Political Party (Party
Nasdem), as a public legal entity established under a notary deed
and is registered in the Department of Law and rights Human Rights (vide Evidence P-5)
considers the rights and/or its constitutional authority to be harmed by
the enactment of Article 8 of the paragraph (1), and the paragraph (2) of the phrase " that does not meet
threshold the vote of votes in the Election previous or new political party
UU 8/2012 ";
[3.9] It weighed that by Paying attention to potential consequences
experienced by the applicant is associated with the constitutional right of the applicant,
according to the Court, the applicant qualified (legal
standing) to apply for the request. testing a quo;
[3.10] weighed that based on the description above, according to
The Court, the applicant qualified (legal standing).
By due to the court of competent court prosecuting a quo, the petitioners
eligible legal standing (legal standing), then the Court
will consider the subject;
Pokok Plea
Court opinion
[3.11] Draw that, after the Court checks in the same saas
pleas of the applicant, the Government captions, the House caption,
expert statements from the applicant, and evidence/writing evidence submitted
by the applicant, as it is contained on the Sekara section,
The court argues as follows:
Article 60 of the paragraph (1) of the MK Act states, "Against the subject matter of the paragraph, section,
and/or the passage of the laws that have been tested, cannot be moorled
re-testing", which is also in line with the provisions of Article 42 paragraph (1)
Constitutional Court Regulation Number 06 /PMK/2005 on Guidelines
Event In Perkara Testing Act (subsequently called PMK
Number 06 /PMK/2005) stated, " Against the verse charge matter, section,
52
and/or sections in the Act that have been tested, cannot be redirected to test
return";
Section 60 of the paragraph (2) of the MK Act states,"The terms in which are referred to
paragraph (1) can be excluded if the charge material in the Basic Law
State of the Republic of Indonesia Year 1945 as the basis of testing
is different", which is also in line with Section 42 of the paragraph (2) PMK Number
06 /PMK/2005 which states, " Regardless of the terms of paragraph (1) above,
request for Act testing against the paragraph, section, and/or section
equal to the case that the Court has ever broken up is expected
test returns with the terms of the constitutionality being the reason
the request is different".
The petitioners at the point of the constitutionality of the Article
8 verses (1), and the verse (2) throughout the phrase" that does not meet the threshold
votes in previous elections or new political parties" Act 8/2012 and
implores different petitum with Perkara Number 52/PUU-X/2012, however
according to the Court, Essence, the request of the applicant who in
poise the constitutionality of the threshold threshold of the party vote
The politics and requirements of the political party the General Election Participant are the same
with the Plea Number 52 /PUU-X/2012 that has been disconnected by the Court
in the Decree No. 52 /PUU-X/2012 Dated August 29, 2012. The request
The applicant has been vetted in one trial together-
equal to the request of Number 51 /PUU-X/2012, the request of Number 52 /PUU-
X/2012, and the request of Number 54 /PUU-X/2012, turns out not to be based on
terms of the constitutionality of different reasons. In addition, the reasons
the applicant's request has also been considered in the ruling
No. 52/PUU-X/2012 is dated August 29, 2012, so the request of the
Pemapplicant ne bis in idem;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court of law is prosecuting a quo plea;
53
[4.2] The applicant has a legal standing (legal standing) for
applying for a quo;
[4.3] Pokok a request of the applicant ne bis in idem;
Based on Constitution of the State of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 Year 2011 on
Changes to the Number Act 24 Years 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia) 2011 Number 70,
Additional Gazette Republic Indonesia Number 5226), Act
Number 48 Of 2009 On The Power Of Justice (State Sheet
Republic Of Indonesia 2009 Number 157, Additional Sheet Of State Number
5076).
5. AMAR RULING
Prosecuting,
Declaring the applicant is not acceptable.
So it was decided in a Meeting of Judges by
eight Constitution Judges were Moh. Mahfud MD, as Chairperson of the group < The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the test-mover of testing;
50
c. The loss of rights and/or such constitutional authority must be
specific (special) and actual or at least any potential according to
reasonable reasoning may be certain to occur;
d. (causal verband) between the rights loss and/or
the constitutional authority is referred t /p>
Member, Achmad Sodiki, Muhammad Alim, M. Akil Mochtar, Ahmad Fadlil Sumadi,
Hamdan Zoelva, Anwar Usman, and Maria Farida Indrati, respectively as
Members on the day Wednesday, the date fifteen, moon August, year two thousand two
teenth, and spoken in the plenary session of the Constitutional Court is open to
general on the day Wednesday, date twenty-nine, month August, year two
thousand twelve, by eight Constitutional Justices, that is Moh. Mahfud MD, as
Chairperson of the Members, Achmad Sodiki, Muhammad Alim, M. Akil Mochtar,
Ahmad Fadlil Sumadi, Hamdan Zoelva, Anwar Usman, and Maria Farida Indrati,
respectively as Members, with accompanied by Ida Ria Stockpile
as Panitera Replacement, and attended by its Applicants,
Government or which represents, as well as the People's Representative Council or who
represents.
54
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Muhammad Alim
ttd.
M. Akil Mochtar
ttd.
Ahmad Fadlil Sumadi
ttd.
Hamdan Zoelva
ttd.
Anwar Usman
ttd.
Maria Farida Indrati
PANITERA REPLACEMENT,
ttd.
Ida Ria Tamheap
