Key Benefits:
RULING Number 18 /PUU-IX/2011
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecuting, and severing the case constitution on
first and last level, dropping rulings in case of plea
Testing of Law Number 2 of the Year 2011 on Change of the Top
Act No. 2 of 2008 on Political Parties against Invite-
Invite the Basic State of the Republic of Indonesia in 1945, which was submitted by:
[1.2] 1. Name: Drs. H. Choirul Anam;
Occupation: General Chairman Of Council Tanfidz Council
Governing Party Center Revival
National Cleric (PKNU);
Address: Kramat Street VI Number 8, Central Jakarta;
2. Name: Tohadi, S.H., M. Si.; Job: Secretary General of Tanfidz Council
Party Central Board of Directors
National Awakening Ulama (PKNU);
Address: Kramat Street VI Number 8, Central Jakarta;
Based on the Letter of Power Special, dated January 24, 2011, gives the power
to i) Andi Najmi Fuadi, S.H., M.H.; ii) Chudry Sitompul, S.H., M.H.; iii) Tohadi,
S.H., M. Si.; iv) Drs. M. Jamaluddin Shofisa, S.H., M. Kn.; v) Dheyna Hasiholan,
S.S., S.H.; vi) Wegig Gunawan Yusuf, S.H.; vii) Nurhayati Shigeno, S.H., M.H.; viii)
Muhammad Solihin HD, S.H.; ix) Santuso, S.H.; x) Drs. H. Misbahul Huda, S.H.,
M. hi.; xi) H. Sholeh Jamal, S.H.; xii) Ir. H. Wahyudi, S.H., M. Hum.; xiii) Muhammad
Aqil Ali, S.H.; xiv) Andi Faisal, S.H., M.H.; xv) Misearlier, S.H.; xvi) Nurul Herlina,
S.H.; xvii) M. Holid, S.H.; xviii) Suisno, S.H., M. Hum.; xix) Mendy Uthama, S.H.;
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and xx) H. Mustafa, S.H., i.e. advocate and legal consultant on "Agency
Advocacy of the Law and Human Rights of the National Awakening Party"
(BAKUM-HAM PKNU) address at Jalan Kramat VI Number 8, Jakarta Center,
both individually and together act for and on behalf of
the giver;
Next
is called as -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- a request from the applicant;
Heard the caption from the applicant;
Checking The evidence from the applicant;
Hearing the experts from the applicant;
Hearing and reading the written caption from the Government;
Read the written caption from the People's Representative Council;
Read the written conclusion of the applicant;
2. SITTING LAWSUIT
[2.1] In a draw that the applicant has submitted an application
then a list in the Constitutional Court (subsequently called
The Court of Justice) on Wednesday 16 June 2010 with the registration
case Number 18 /PUU-IX/2011, which has been corrected and received at
The Court of Justice on July 8, 2010, outlines the things as
following:
I. Constitution of the Constitutional Court
(1) That under Article 24C of paragraph (1) of the Basic Law
Republic of Indonesia 1945 (subsequently called UUD 1945) mentioned again
in Article 10 of the paragraph (1) of the Republic Act Indonesia Number 24 Year
2003 on Constitutional Court (Indonesian Republic Gazette
Year 2003 No. 98, Additional Gazette of the Republic of Indonesia
Number 4316, subsequently called Act MK) and Article 29 paragraph (1) of the letter a
Act of the Republic of Indonesia Number 48 Year 2009 on
Power Justice (Sheet State Of The Republic Of Indonesia In 2009
Number 157, Additional Sheet Of State Republic Of Indonesia Number 5076),
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one of the constitutional authority of the Constitutional Court of the Republic
Indonesia (subsequently called the Court) is conducting testing
legislation (judicial review) against UUD 1945;
(2) That Article 7 of the Republic of Indonesia Law No. 10 of 2004
on the Establishment of the Law-Invitation Regulation governing that
hierarchically the position of the Constitution of 1945 was higher than the Act.
Thus, any provision of the Act should not be contradictory
with the Constitution of 1945. And if there is a provision in the Act
as opposed to the 1945 Constitution, then the provisions can
be asked to be tested through the mechanism testing mechanism (judicial
review);
(3) That the applicant is applying for testing Section 51 of the paragraph (1)
of the Republic of Indonesia Act 2011 on Change
under Law No. 2 of 2008 on the Political Party (Sheet
Republic of the Republic of the Republic of Indonesia). Indonesia Year 2011 Number 8, Extra Sheet
State of the Republic of Indonesia Number 5189, further called the Parpol Act) and
related to this provision, i.e. Section 2 of the paragraph (1) and paragraph (1a) junctis
Section 3 of the letter c and the letter d; Section 4; Section 47 of the paragraph (1); Section 51 of the paragraph
(1a), paragraph (1b), verse (1c), and paragraph (2) of the 1945 Constitution to the Court;
(4) That thus, the Court is authorized to examine, prosecute
and cut the application of the a quo testing.
II. The Legal Position (Legal Standing) of the applicant
(5) That Section 51 of the paragraph (1) of the MK Act states:
" The applicant is a party that considers the right and/or authority
its constitutionality is harmed by the expiring An Act, 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 institutions. ";
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(6) That similarly, The explanation of Article 51 of the paragraph (1) of the MK Act states,
"Which is 'constitutional right' is the rights set in
The Constitution of the Republic of the Republic of Indonesia Year 1945. ";
(7) That the Court since Decree Number 006 /PUU-III/2005 dated 31 May
2005 and Putermination Number 11 /PUU-V/2007 dated 20 September 2007 and
The subsequent rulings have been established, that the loss of rights and/or
constitutional authority as referred to Article 51 paragraph (1) of the MK Act
must meet five terms, that is:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific (specifically) and actual or at least a potential according to
reasonable reasoning can be certain to occur;
d. Due (causal verband) connection between the intended loss
and the expiring Act of testing;
e. It is possible that with the application of the request, then
the rights and/or constitutional rights losses such as the postured
will not or no longer occur;
(8) That the applicant in the case of a quo is the public legal entity, in terms of
this Ulama National Awakening Party (subsequently called: ld be announced;
(3) The rules must be made to be a guideline for activities-
activities later in the day;
(4) Laws must be made. created in such a way that it is understandable
by the common people;
(5) Rules may not conflict with one another;
(6) The rules should not require any outside behavior
the ability of the affected parties. Or in other words, the law
should not command something that is impossible to do;
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(7) In the law there must be assertiveness. The law should not be changed
any time, so that people can no longer orientate
its activities to it;
(8) There must be a consistency between the rules as
announced with the implementation In fact.
(See Prof. Dr. A.A.G. Peters and Koesriani Siswosoebroto, S.H. (Editor),
Social Law and Development, Book of Legal Sociology, Book III,
Jakarta: Pustaka Sinar Harapan, 1990, pp. m. 61-62);
(30) That still relates to the above, Prof. Dr. Sudikno Mertokusumo,
SH states that in enforcing or carrying out the law, there is
3 (three) elements that must always be noticed, namely: legal certainty
(rechtssicherheit), sufficiency or usability of (zweeckmassigkeit), and
justice (gerechtigkeit).
The uncertainty of the law constitutes the yustisible protection of the action
arbitrary, meaning one will be able to acquire something
which is expected under certain circumstances. Because the law is for human purposes, it is for the human being, hence the exercise of law or law enforcement
must provide the benefit or usability for the community. And in
the execution or affirmation of the law should also be noticed for justice.
In enforcing the law there should be a compromise between the three elements
that. The three elements must be attentively attentively
balanced.
(Prof. Dr. Sudikno Mertokusumo, SH, op. cit., p. 134-135);
(31) That Article 51 paragraph (1) of the Parpol Act mentions, " The political party that has been
passed as a legal entity under the No. 2 Act
2008 of the Political Party remains recognized for its existence with
obligations are adjusting according to the This Act is
following verification. ";
(32) That as described, the provisions of Article 51 paragraph (1) of the Parpol Act
referred to have required a Political Party passed before
as a Legal entity under Act No. 2 of 2008
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about the Political Party, as does the PKNU, to adjust the terms-
the terms defined by the Parpol Act by following verification.
As for the verification provisions set out in the Parpol Act
referred to, i.e., as is defined in Section 2 of the paragraph (1) and the paragraph (1a) junctis of Article 3 of the letter c and the letter d; Section 4; Article 47 of the paragraph (1);
Section 51 of the paragraph (1a), paragraph (1b), paragraph (1c), and paragraph (2).
Article 2 of the paragraph (1) and paragraph (1a) of the Parpol Act, reads:
(1) Political Parties were established and formed by at least 30 (thirty)
Indonesian citizens who have been aged 21 (twenty-one)
-year or already married from any province.
(1a) The political party as in verse (1) is listed by at least
50 (fifty) the founding people representing the entire political party founder
with a notarized deed.
Section 3 of the paragraph (2) of the letter c and the letter d Act of Parpol, reads:
(1) Political parties must be registered to the Ministry to be body
the law.
(2) To be the legal entity as referred to in paragraph (1),
The Political Party must have:
a. the deed of the notary the establishment of the Political Party;
b. name, symbol, or unassuming image sign
The equation at the point or the entirety by name,
the emblem, or the image sign that has been legally used by
Other Political Parties are in compliance with the The rules of the negotiations;
c. the management of each province and at least 75% (seven
-five perhundred) of the county/city number in the province
is concerned and at least 50% (five) Twenty-one hundred) from
the number of subdistricts in the city/city in question;
d. The office remains at the central, provincial, and county/city level
until the last stage of the general election; and
e. account on behalf of the Political Party.
Article 4 of the Parpol Act, reads:
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(1) The Ministry receives registration and performs research and/or
The verification of completeness and correctness as contemplated in
Article 2 and Article 3 of the paragraph (2).
(2) Research and/or verification as referred to in paragraph (1)
performed at most times 45 (forty-five) days since it is received
document requirements in complete.
(3) The Concern Political Party became a legal entity with
The longest Ministerial decision 15 (fifteen) days from the end
the process of research and/or verification.
(4) The Ministerial Decree on attestation Political Parties as
referred to paragraph (3) is announced in Republican State News
Indonesia.
Article 47 paragraph (1) of the Parpol Act, reads:
(1) The violation of the provisions as referred to in Section 2,
Section 3, Section 9 of the paragraph (1), and Section 40 of the paragraph (1) are subject to sanctions
administrative Political Party registration rejection as body
laws by the Ministry.
And Article 51 of the paragraph (1a), paragraph (1b), paragraph (1c), and paragraph (2), read:
(1) The Political Party which has been passed as the legal entity based on
Act Number 2 of the Year 2008 on Political Parties remains recognized
its existence with the obligation to make adjustments according to
This Act by following verification.
(1a) Verify the Political Party as referred to in paragraph (1) and the party
The politics set up after this legislation is promulred, completed
at the slowest 2 ½ (two and a half) years before polling day
general elections.
(1b) In terms of political parties as referred to paragraph (1) not
qualifying verification terms, the existence of the party The politics remained
recognized until the reporting of House members, DPRD Province, DPRD
District/City of the 2014 General Election Results.
(1c) Member of the DPR, DPRD Province, DPRD County/City of the political party
aon, First Print, 1991,
p. 73);
(29) That in the same idea as Hans Kelsen, then Lon
Fuller in his book, The Morality of the Law
stated that the ideals of legal power demanded that the rules
is fair. As for the principles as a guideline in the making
the law, in order for the fair nature rather than the rules of law can
be encouraged, that is:
(1) There must be rules as guidelines in decision making;
(2) Rules that are guidelines for the authority should not be
kept secret, but shou
SH, loc. cit., p. 135);
(35) That the Court itself has stated that the maker or
establishment of the Act (DPR and President) is not consistent in
17
formulating laws in particular the Act in politics, including
The Act on Political Parties.
The applicant needs to cite the court's opinion in this relation:
" [3.20] Draw that though The Court argued that the policy of PT
listed in Article 202 of the paragraph (1) of Act 10/2008 is equal
its constitutionality with the ET policy set forth in the Act of 3/1999
and Act 12/2003, but the Court judged the establishment of the law. The Act
is not consistent with its policies that related Elections and
impressed always experimenting and has not yet had a clear design
about what a simple party system is
is about to be created, so that every moment Elections are always followed
with the creation of a new Act in politics, the Invite-
Invite regarding the Political Party, the Election Act, and
The Act on Susunan and Occupation MPR, DPR, DPD, and
DPRD. "
(vide Putermination of MK-RI No. 3/PUU-VII/2009, date, February 13, 2009, alinea
[3.20], pp. 130-131);
(36) That as proof of the creator or forming of the Act is not
consistent with his policies, in this case formulating
the provisions of Article 51 of the paragraph (1) of the Parpol Act and which are related to the provisions
this is, that is Section 2 of the paragraph (1) and paragraph (1a) junctis Section 3 of the paragraph (2) letter c and
letter d; Section 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1a), paragraph (1b), paragraph (1c),
and paragraph (2) so that the a quo provision is a result of the legal uncertainty,
may be seen a comparison between the Parpol Act in particular Article 51 of the paragraph (1)
with existing provisions about the rules
transition in the other Parpol Act, as follows:
No. The change of the change of Interest
1. Article 51 paragraph (1) Law No. 2 Year
2011 on Change of Law Number
2 Year 2008 on Political Party:
"Political Party passed as
legal entity under Invite-
There is a additional provisions:
"with following verification"
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Invite Number 2 of 2008 on
The Political Party remains recognized for its existence
with the obligation to do
the adjustment according to this Act
with following verification. "
2. Article 51 of the paragraph (1) Act No. 2 of the Year
2008 of the Political Party:
" Political Party passed as
legal entity under Invite-
Invite Number 31 Year 2002 on
Party "Politics remains recognized as its existence."
only with the provisions: "remains recognized for its existence"
3. Article 29 paragraph (1) Law Number 31 of the Year
2002 on Political Party:
" The political party that the Invite-
Invite Number 2 Year 1999 on
The Political Party has been passed as
legal entity by the Minister of Justice
The Republic of Indonesia is recognized for its existence
and is obliged to adjust to
The provisions of this Act are Tuesday-
slow 9 (nine) months since
expiring this Act. "
does not exist additional provisions: "with following
verification"
4. Article 20 of Law No. 2 of 1999 on
Political Party:
" At the expiration of this legislation
then the Election Participant
General of 1997, the Party of Unity
Development, Works, and
Indonesian Democratic Party as
Political social power organization
under Act No. 3
1975 about Political Parties and
Golongan Work as it has been
amended by Act Number 3
Year 1985 on Change of Invite-
Invite Number 3 of 1975 on
The Political and Golongan Party Works
there is no additional provisions: "with following
verification"
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is considered to have met the requirements
as set out in Section 2 and
This section of this legislation as well as mandatory
adjust to the provisions
This legislation. "
5. Article 15 of Law No. 3 of 1985 on
Change Act No. 3 1975
about Political and Group Works:
" Political and Political Parties of Works should
already finished adjusting to
The provisions of this Act
including its changes,
no later than one year after
the effective date of the Act
this. "
does not exist additional provisions: "with following
verification"
6. Bill Number 3 of the Year 1975 about the Party
Politics and Group Works:
" By enactment of this Act
to the Political and Golongan Party Works
given the opportunity for
adjust self-provided-
The provisions of this Act should
already completed at least one last
years after the Act
this. "
does not exist additional provisions: "with following
verification"
C. The a quo Contravenes Article 28D clause (1) The Second Amendment Of The 1945 Constitution Simultaneously Has Been Contradictory To The Opinion Of The Court As In The Ruling Numbered 3/PUU-VII/2009, Due To The Uncertainty Of The Law. (Legal Uncertainty)
(37) That Article 28D paragraph (1) The Second Amendment of the 1945 Constitution states, " Any
people are entitled to recognition, assurance, protection, and legal certainty
the fair and treatment the same before the law. "
(38) That recognition, assurance, protection, and Fair legal certainty
as well as the same treatment before the law as coddled by
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Section 28D paragraph (1) Second Amendment of the 1945 Constitution of course applies to the applicant, i.e. in regard to the PKNU as the legal entity and the participant
Election;
(39) That Section 51 of the paragraph (1) Parpol Act and the associated with this provision,
that is Section 2 of the paragraph (1) and paragraph (1a) junctis Section 3 of the paragraph (2) letter c and letter
d; Section 4 law should not be changed
any time. " (Prof. Dr. A.A.G. Peters and Koesriani Siswosoebroto, S.H.
(Editor), loc. cit.).
Similarly, the opinion of Prof. Dr. Sudikno Mertokusumo, SH, that in
the execution or affirmation of the law should there be legal certainty. Because,
"Legal certainty is the yusticiable protection against action
arbitrator, which means someone will be able to acquire something
which is expected under certain circumstances." (Prof. Dr. Sudikno Mertokusumo,
next Election, the PT policy listed in Section 202paragraph (1) Act 10/2008 is more guaranteed the existence of the Parpol Election Participant
and its participation in the next Election, as listed
in Article 8 of the paragraph (2) Act 10/2008 that reads, " Party Politics Participants
Election on the previous election could be an Election Participant in the Election
next. " The explanation of Article 8 of the verse (2) reads, "In question
with the 'previous elections' is starting the 2009 elections and
next."
(MK-RI Decree Number 3/PUU-VII/2009, date, February 13, 2009 alinea
[3.18], pp. 129-130);
(40) That thus, the provisions of Article 51 paragraph (1) of the Parpol Act and which
in relation to this provision, i.e. Section 2 of the paragraph (1) and paragraph (1a) junctis Article
3 verse (2) letter c and letter d; Section 4; Section 47 of the paragraph (1); Article 51 of the verse (1a),
paragraph (1b), verse (1c), and verse (2) are clearly contrary to the 1945 Constitution
in particular Article 28D paragraph (1) Second Amendment of the 1945 Constitution. Also
has been contrary to the Court's opinion as in
The Court of Justice Number 3/PUU-VII/2009, date, February 13, 2009
as it is written on paragraph [3.18], pp. 129-130.
As it has been proposed, that if the provisions of Article 51 of the paragraph (1) Act
Parpol and associated with this provision, that is Article 2 of the paragraph (1) and the paragraph
(1a) junctis Section 3 of the letter c and the letter d; Section 4; Section 47 verse (1);
Section 51 of the paragraph (1a), paragraph (1b), paragraph (1c), paragraph (1c), and paragraph (2) by the Court
is stated in conflict with the Constitution of the Republic of the Republic
Indonesia of 1945 and declared no legal force
binding, then that will remain in effect is the provisions
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requirements as a legal entity governed by the Act
before, Law No. 2 of 2008 on Political Parties.
Thus, PKNU as the legal entity remains valid and
applies, without There must be an adjustment of the registration terms and/or
verification as the legal entity again, as it has been passed
previously pursuant to Law No. 2 of 2008 on the Political Party in question.
D. The A Quo Contradies Under Article 27 Verse (1) Constitution Of 1945 junctis Article 28D Verse (3) The Second Amendment Of The 1945 Constitution And Article 28I Verse (2) The Second Amendment Of The Constitution Of 1945 Because It Does Not Provide Warranty Of Equal Rank And Opportunity In Law and the Government and the Protection of the Discriminative Treatment
(41) That in addition to that, Article 27 paragraph (1) of the 1945 Constitution states,
" All citizens together are in the law and
government and mandatory uphold of that law and governance with
no "
Next, Section 28D paragraph (3) Second Amendment of the 1945 Constitution states,
"Each citizen is entitled to a similar opportunity in
government. "
And Article 28I the paragraph (2) Changes Both the 1945 Constitution states, "Any
people are entitled to be free of any discriminatory treatment on what grounds
also and entitled to be protected against the treatment that is
discriminatory that. ";
(42) That the provisions of Article 27 paragraph (1) of the Constitution of 1945 junctis Article 28D verse (3)
Second Amendment of the Constitution of 1945 and Section 28I paragraph (2) The Second Amendment of the Constitution
1945 above has provided a guarantee of equal rank and
opportunities in law and governance as well as protection against
the treatment which is discriminatory;
(43) That the enactment of the provisions of Article 51 paragraph (1) of the Parpol Act and the associated
with this provision, that is Article 2 of the paragraph (1) and the paragraph (1a) junctis Article 3 of the paragraph
(2) the letter c and the letter d; Section 4; Section 47 verse (1); Section 51 of the paragraph (1a), paragraph
(1b), paragraph (1c), and paragraph (2) is very potential for the detrier of the applicant, in terms of
this potentially causes PKNU not to get a guarantee in common
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the position and opportunity in law and governance as well as
protection against discriminatory treatment.
If the provisions of Section 51 paragraph (1) of the Parpol Act and the associated
with these provisions, (1) and paragraph (1a) junctis Section 3 of the paragraph
(2) the letter c and the letter d; Section 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1a), paragraph
(1b), the verse (1c), and the paragraph (2) are in effect clearly potentially harming PKNU.
The provisions are indeed true for all Political Parties
so as if there were commonalities and opportunities in
laws and governance as well as protection against the treatment that
discriminates. However, the nature of which is clearly defined
does not provide equal position and opportunity in law and
governance as well as discriminatory.
The obligation follows verification as the legal entity in the the time
slow 2 ½ (two and a half) years before the election voting day
common with very heavy terms is clearly damning
as well as discriminatory towards the Political Party that does not qualify threshold
parliamentary limit (parliamentary threshold) as do PKNU. This is, by
because the Political Party has no political and financial capital to
prepare for the fulfillment of the terms of verification in the short time range
that is short, as a consequence has no parliament in the level
center (DPR).
In contrast to the political parties that qualify for the parliament threshold
(parliamentary threshold) thus having a member of the House, which it
means having a sufficient political and financial capital;
(44) That thus, the provisions of Article 51 paragraph (1) of the Parpol Act and the
related to this provision, i.e. Section 2 of the paragraph (1) and the paragraph (1a) junctis Article
3 paragraphs (2) letter c and letter d; Section 4; Section 47 of the paragraph (1); 51 verses (1a),
verse (1b), verse (1c), and verse (2) contradictory to the 1945 Constitution, in terms of
this Section 27 paragraph (1) UUD 1945 junctis Section 28D paragraph (3) Second Amendment
Constitution of 1945 and Article 28I paragraph (2) The Second Amendment of the 1945 Constitution;
26
E. Terms a quo Contrary To The Terms Of Article 28 Of The 1945 Constitution And Article 28E Verse (3) Second Amendment To The 1945 Constitution Because It Does Not Provide Freedom Of Freedom For The Union
reason and mutandis mutatis are also unwarranted. to declare not
the constitutional section of the section related to Section 202 (1), Section 203,
Article 205, Section 206, Section 207, Section 208, and Section 209 Act 10/2008.
According to the Court, if compared to the ET policy listed
in the previous Election Act, that is Law 3/1999 and the Act
12/2003, which threatened Parpol ' s existence and its chances for
following the raph (1) The Second Amendment of the 1945 Constitution
at the same time has been contrary to the Court's opinion as
in the Decree of the Court Number 3/PUU-VII/2009, because clear
raises legal uncertainty (legal uncertainty).
The applicant is supposed to obtain recognition, assurance, protection, and
fair legal certainty, as Section 28D paragraph (1) Changes
Second Constitution of 1945.
According to the provisions of Section 8 of the paragraph (2) and the explanation of Section 8 of the paragraph (2) Act No. 10
2008 of the General Election of Representatives, DPD, and DPRD, it is clear
once that PKNU remains a valid legal entity, even already
can being the next election participant (Election 2014 onwards), without
there is an obligation to provide verification as a legal entity.
The court alone has even confirmed in its former verdict,
that is in the Court ' s Verdict Number 3/PUU-VII/2009.
In that ruling, the Court has affirmed that the provisions of Article 8
paragraph (2) and Explanation of Article 8 of the paragraph (2) Act Number 10 of the Year 2008 concerning
General Elections of the House of Representatives, DPD, and DPRD have granted
the recognition, assurance, protection, and fair legal certainty
that the Political Party of the Election participants in the previous election, which is
The 2009 elections as well as PKNU, can be Election Participants at
The next election (Election 2014) and so on).
However, the provisions of Section 51 of the paragraph (1) of the Parpol Act and related to
this provision, i.e. Section 2 of the paragraph (1) and the paragraph (1a) junctis of the (2) letter
c and the letter d; Section 4; Section 47 of the paragraph (1); Section 51 of the paragraph (1), verse (1b), paragraph
(1c), and paragraph (2) instead states that there is an obligation to follow
verification as the legal entity in the slowest time of 2 ½ (two
half) years prior to the general election voting day with
terms are very heavy.
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Thus, the provisions of Article 51 paragraph (1) of the Parpol Act and the associated
with this provision, that is Section 2 paragraph (1) and paragraph (1a) junctis of Section 3 of the paragraph
(2) the letter c and the letter d; Section 4; Section 47 of the paragraph (1); Article 51 of the verse (1a), paragraph
(1b), verse (1c), and verse (2) are clearly contrary to the 1945 Constitution
in particular Article 28D paragraph (1) Second Amendment of the 1945 Constitution. Also
has been contrary to the Court's opinion as in the Decree
Court Number 3/PUU-VII/2009, date, February 13, 2009 as
written on paragraph [3.18], pp. 129-130;
(7) That the provisions of Article 51 paragraph (1) of the Parpol Act and related to
this provision, i.e. Section 2 of the paragraph (1) and the paragraph (1a) junctis of Section 3 of the letter
c and the letter d; Section 4; Section 47 of the paragraph (1); Section 51 of the paragraph (1a), paragraph (1b), paragraph
(1c), and paragraph (2) are highly potential to harm the applicant, in this case
potentially causing the PKNU to not obtain a guarantee of similarity
the position and opportunity in law and governance as well as
protection against discriminatory treatment, as it has been
guaranteed by the provisions Article 27 paragraph (1) UUD 1945 junctis Article 28D paragraph (3)
Second Amendment of the 1945 Constitution and Article 28I paragraph (2) Second Amendment of the Constitution
1945.
Despite the provisions of Article 51 of the paragraph (1) of the Parpol Act and related to
this provision, i.e. Section 2 of the paragraph (1) and paragraph (1a) junctis of Article 3 of the (2) letter
c and the letter d; Section 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1a), verse (1b), paragraph
(1c), and the paragraph (2) applies to all Political Parties and as if
there is equal position and opportunity in law and governance
and not discriminatory, but on the nature of the law. clear
otherwise, does not provide equal position and opportunity in
laws and government as well as discriminatory.
Liability follows verification as a legal entity with time constraints
at least 2 ½ (two and a half) years prior to polling day
general election with terms of which Very heavy has been damning
as well as discriminatory against a political party that has not passed the threshold
parliament (parliamentary threshold), as is PKNU. Because the party
like this does not have political and financial capital to prepare
31
fulfillment of the verification terms in that short period of time,
as a consequence of not having a parliament at the central level (DPR).
On the contrary, political parties that qualify for the parliament threshold
(parliamentary threshold) thus have members of the House, which
means having considerable political and financial capital is even very large.
This means that the provisions of Article 51 paragraph (1) of the Parpol Act and the associated
with this provision, that is Section 2 of the paragraph (1) and the paragraph (1a) junctis of Section 3 of the paragraph
(2) the letter c and the letter d; Section 4; Section 47 of the paragraph (1); Section 51 of the paragraph (1a), paragraph
(1b), paragraph (1c), and paragraph (2) contradictory to the 1945 Constitution in this regard
Article 27 (1) paragraph (1) 1945 junctis Section 28D paragraph (3) Second Amendment
Constitution of 1945 and Section 28I paragraph (2) The Second Amendment of the Constitution of 1945;
(8) That the enactment of the provisions of Article 51 paragraph (1) of the Parpol Act and the associated
with this provision, (1) and paragraph (1) and paragraph (1a) junctis Section 3 of the paragraph
(2) the letter c and the letter d; Section 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1a), paragraph
(1b), paragraph (1c), and paragraph (2) in conflict with Article 28 of the 1945 Constitution and
Article 28E verse (3) Second Amendment of the Constitution of 1945, for not granting
the guarantee of freedom for union.
That a quo provision raises the loss for the applicant, because
potentially hinking even more potential kills
PKNU ' s survival as a legal entity.
Adanya the obligation follows verification as a legal entity in time
at the slowest 2 ½ (two and a half) years before polling day
the general election with very heavy terms was highly potentially
that the PKNU -- which has no House member and this means no
Having a big political and financial capital -- can't get away with verification, and
as a result the PKNU will only survive as a legal entity until
a member of the DPR, DPRD Provincial Council, DPRD County/City results
General ate, 13 February 2009 written
on paragraph [3.18], pp. 129-130;
29
(6) That Section 51 of the paragraph (1) of the Parpol Act and associated with this provision,
i.e. Section 2 of the paragraph (1) and the paragraph (1a) junctis of Section 3 of the letter c and the letter d;
Article 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1), verse (1b), paragraph (1c), and paragraph (2)
contrary to Section 28D parag argument above, the House pleads
to the Constitutional Court of the Republic of Indonesia that checks, breaks
and prosecuting Perkara a quo, can provide the following verdict:
1. Stating that the applicant does not have a legal standing (legal
standing);
2. Stating the 2011 Act No. 2 testing
was rejected for the whole or at least stated a request
testing of Act No. 2 of the Year 2011 was unacceptable (niet
61
onvankelijk verklaard);
3. The House of Representatives is accepted in its entirety;
4. Stating the provisions of Article 51 of the paragraph (1) Act No. 2 of 2011 on
The change to the Act No. 2 of 2008 concerning the Party
Politics does not conflict with Article 28D of the paragraph (1) of the 1945 Constitution;
5. Stating the provisions of Article 51 paragraph (1) Act No. 2 of the Year 2011 on
Changes to the 2008 Act No. 2 of the Party
Politics still has a legal force binding.
[2.5] weighed that the applicant had delivering a written conclusion
dated May 2, 2011 which was accepted in the Court of Justice on the 2nd
May 2011 that on the point remained with its stance;
[2.6] weighed that to shorten the description in the ruling this,
everything that happened at the trial was quite appointed in the Event News
The trial, which is one unseparable unity with
this ruling;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the a quo application is to
test Article 51 of the paragraph (1); Section 2 of the paragraph (1) and paragraph (1a) junctis Section 3 of the paragraph (2)
the letter c and the letter d; Section 4; Article 47 paragraph (1); Article 51 of the paragraph (1a), paragraph (1b), paragraph
(1c), and paragraph (2) of the Act No. 2 of 2011 on the Change of the Upper Amendment
Act No. 2 of 2008 on the Political Party (State Sheet
Republic of Indonesia) 2011 Number 8, Additional State Sheet Republic
Indonesia Number 5189), the next called Act 2/2011, against Invite-
Invite Basic State of the Republic of Indonesia in 1945 (later called UUD
1945);
[3.2] Balanced that prior to considering the subject,
Constitutional Court (next called the Court) first would
consider:
62
a. The Court's authority to examine, prosecute, and disconnect
plea a quo;
b. Legal standing (legal standing) The applicant to apply for
a quo;
Constitutional authority
[3.3] weighing that under Section 24C of the paragraph (1) of the 1945 Constitution and
Article 10 of the paragraph (1) The letter of a bill MK, as well as Article 29 paragraph (1) letter a Law No. 48
Year 2009 on the Power of Justice (Republican Gazette
Indonesia of 2009 No. 157, Additional Gazette of the Republic
Indonesia Number 5076, next called Act No. 48/2009), one
Constitutional authority of the Court is to prosecute at the first level and
last the verdict is final to test the Act against
Basic Law;
[3.4] Draw that the applicant's plea is to test
the constitutionality of the norm Section 51 of the paragraph (1); Section 2 of the paragraph (1) and paragraph (1a) junctis
Section 3 of the paragraph (2) of the letter c and the letter d; Section 4; Article 47 of the paragraph (1); Section 51 of the paragraph (1a),
paragraph (1b), paragraph (1c), and paragraph (2) Act 2/2011 against UUD 1945, which is
one of the Court ' s authority, so that by hence the Court
authorities to examine, Prosecute, and severing a quo;
Legal Standing (Legal Standing) The applicant
[3.5] A draw that The applicant is the National Awakening Party
Ulama (later called PKNU) is The Political Party established
based on the Notary deed is dated October 13, 2006, Number 33, which is then
changed with the Akta Notary dated January 12, 2007, Number 26 of both
created in the presence of H Harjono Moekiran, S.H., Notary in Jakarta, last modified
with a Notary deed dated 10 December 2007, Number 5 created in
ahead of Dian Fitriana, S.H., M. Kn., Notary in Bekasi City, and then
receiving passage as the public legal entity of the Minister for Law and Rights
Human Rights of the Republic of Indonesia with Surat His Decision Number M. HH-
31.AH.11.01 Year 2008, dated 03 April 2008;
63
That under Section 51 of the paragraph (1) of the MK Act, the applicant is a party that
considers the rights and/or its constitutional authority be harmed by
the enactment of the Act:
a. Individual citizens of Indonesia;
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;
[3.6] Draw that by because the applicant is the public legal entity
in this case the Ulama National Awakening Party has earned
the attestation in accordance with the applicable provisions then the applicant satisfy
the requirements as mentioned in Section 51 of the paragraph (1) of the MK Act.
That next to the applicant must qualify for Article 51 of the paragraph (1) MK Act,
since Decree Number 006 /PUU-III/2005, dated 31 May 2005 and Putermination
No. 11 /PUU-V/2007 as well as the subsequent ruling of the Court
argues that the rights and/or constitutional authority
as in section 51 paragraph (1) the MK bill must meet the five conditions,
that is
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or the constitutional authority by the applicant is considered
aggrieved by the enactment of the Act, which is impacting the law;
c. the rights and/or constitutional authority must be
specific. (specifically) and actual or at least a potential according to
reasonable reasoning can be certain to occur;
d. Due (causal verband) link between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that with the application of the request, then
the rights and/or constitutional rights losses such as controls are not
will or shall no longer occur;
64
[3.7] In the draw that the applicant postulate the constitutional right of the applicant
is the right contained in Article 27 of the paragraph (1), Section 28D paragraph (3), Article 28E
paragraph (3), and Article 28I paragraph (2) the aggrieved 1945 Constitution by the enactment of Article
51 paragraph (1)
constitutional (conditional constitutional) provision.
Based on those descriptions above, the House argued the provisions of Article
51 paragraph (1) Act No. 2 of 2011 has guaranteed any
legal certainty and by still acknowledging the existence of Parpol though
not satisfy the verification requirements up to a specific time limit
in order to avoid any legal issues that would arise, so it has been
in line with Article 28D of the paragraph (1) of the 1945 Constitution.
Based on that explanation and Act 2/2011 and the related Article 2 paragraph (1) and paragraph (1a),
Section 3 of the letter c and the letter d, Section 4, Section 47 of the paragraph (1), Section 51 of the paragraph
(1a), paragraph (1b), paragraph (1c), and paragraph (2) Act 2/2011;
[3.8] It is tied that the Court in the Decision of Case Number 15 /PUU-
IX/2011, dated 4 July 2011, has stated Article 51 of the paragraph (1) and Section 51
paragraph (1a) of the phrase "Verification of the Political Party as referred to
paragraph (1)", Section 51 of the paragraph (1b), and Article 51 of the paragraph (1c) of Act 2/2011 contradictory
with the 1945 Constitution and not having a binding force;
[3.9] weighed that the Court's verdict was final and valid erga
omnes by therefore against the Applicant applies the Number 15 /PUU-
IX/2011, dated 4 July 2011. That is, Article 51 of the paragraph (1) of the Act 2/2011 is not
has a binding legal force against the applicant. Thus
The applicant is no longer harmed by his constitutional rights. As of Section 51 of the paragraph (1)
Act 2/2011 already has no binding legal force anymore then to
The applicant is no longer bound to Article 2 of the paragraph (1) and paragraph (1a); Section 3 of the paragraph
(2) the letter c and the letter d; Article 4; Section 47 verse (1); Section 51 paragraph (1), Section 51 of the paragraph
(1a), paragraph (1b), paragraph (1b), paragraph (1c), and paragraph (2) Act 2/2011, or in other words section-
The section is no longer associated with the applicant so that
incline a loss to The applicant;
[3.10] weighed that based on the description above the applicant
again harmed the rights Its constitutionality since the Court of Justice Number
15 /PUU-IX/2011, dated July 4, 2011, or has no legal standing
(legal standing) and hence an application is unacceptable;
65
4. KONKLUSI
Based on the assessment of the facts and laws as described
above, the Court concluded:
[4.1] The court is authorized to examine, prosecute, and disconnect
a plea a quo;
[4.2] The applicant has no legal standing (legal standing) for
applying for a quo;
[4.3] The application is not considered.
Based on the Constitution of the Republic of Indonesia
In 1945 and Act No. 24 of 2003 on the Court
Constitution (Sheet Republic of Indonesia Year 2003 No. 98,
Additional Gazette Republic of Indonesia Number 4316), as well as Invite-
Invite Number 48 Year 2009 on the Power of Justice (State Sheet
Republic of Indonesia Year 2009 Number 157, Additional State Sheets
Republic Indonesia Number 5076);
5. AMAR RULING
Prosecute,
States:
The Applicant's Request Is Unacceptable;
So It Was decided in a Meeting of Judges by
nine Constitution Judges: Moh. Mahfud MD., as the Chief of the Members, Achmad Sodiki, Muhammad Alim, Maria Farida Indrati, Harjono, Ahmad Fadlil Sumadi, Anwar Usman, Hamdan Zoelva, and M. Akil Mochtar, respectively-
respectively as Members, on Thursday the thirtieth date. June the month two
thousand eleven and spoken in the Plenary Session of the Constitutional Court is open to the public on Monday four months of July year two thousand eleven by
the nine Constitutional Judges, the Moh. Mahfud MD., as the Chief of the Members, Achmad Sodiki, Muhammad Alim, Maria Farida Indrati, Harjono, Ahmad
66
Fadlil Sumadi, Anwar Usman, Hamdan Zoelva, and M. Akil Mochtar, respectively as Members, with an accompanied by Mardian Wibowo as
Panitera Replacement, as well as attended by the Applicant, Government or yang.
represents, and the People ' s Representative Council or the representing.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd. td
Achmad Sodiki
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
Harjono
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Hamdan Zoelva
ttd.
M. Akil Mochtar
PANITERA REPLACEMENT,
ttd.
Mardian Wibowo
