Key Benefits:
VERDICT Number 81 /PUU-IX/2011
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and last,
dropping a ruling in the Test case Act Number 15 of the Year
2011 on Election Organizers of the Basic Law
The State of the Republic of Indonesia in 1945, which was put forward by:
[1.2] 1. Indonesian Parliamentary Center (IPC), address on Teuku Cik Street Ditiro 37A, Pav. Menteng, Menteng, Central Jakarta,
in this respect is represented by Sulastio (Director);
2. Society for Elections and Democracy (Disdem), address at the Graha Fund Building 1st Floor Room 108, Road
Gondangdia Kecil Number 12-14, Central Jakarta, in this case
is represented by Titi Anggraini (Executive Director)
3. The Soegeng Sarjadi Foundation, address at Wisma Kodel Floor 11, HR Street Rasuna Said, Kavling B-4, Kuningan, South Jakarta,
in case it is represented by Toto Sugiarto (Director);
4. Center for Electoral Reform (CETRO), address at Jalan Rasamala Number 3, Menteng Within, Tebet, South Jakarta,
in this respect is represented by Hadar Gumay (Executive Director);
5. Voter's Education Network for People (JPPR), address on North Manggarai Road I RT. 007 RW 01 Kelurahan Manggarai
Tebet district, South Jakarta, in which case it is represented by
Yusfitriadi (National Coordinator);
6. The National Law Reform Consortium (KRHN), address on North Tebet Road II Number 13 Tebet, South Jakarta, in this regard
represented by Firmansyah Arifin (Chairman of the Board of Care);
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7. People's Movement Education Agency (ELFENCE), address on Abdurrahman Saleh Street, GG. Abdurrahman Saleh 3 Number 7,
Southeastern Pontianak, West Kalimantan, in this regard is represented by
Pubertus Ipur (Director);
8. Legislative Watch Committee (Legislative Watch Committee) Sulawesi, address on DG. Tata IV Komp Griya Tata Asri D. 5, RT 009 RW 002, Parang Tambung, Tamalate, Makassar City,
South Sulawesi, in which case it is represented by Syamsuddin Alimsyah
(General Chairman);
9. Legal Policy and Reform (SKRUM) Makassar, address on Sunu Komp Unhas Block P. 15, RT 003 RW 003,
Lembo, Tallo, Makassar City, South Sulawesi, in this regard
represented by Muhammad Ramli, S.H., M. Si. (Chairman);
10 The Kauci Manikaya Foundation, an address on Lingk. Padang Sari VII/11, Padang Sari, Padang Sambian, Western Denpasar, Denpasar, Bali,
in this respect is represented by Gunadjar, S.H. (Chairman);
11. Foundation for Public Policy Studies, address on AP Street. Pettarani, IIIC/99, Makassar South Sulawesi, in this regard
is represented by Salma Tadjang (Executive Secretary);
12. Centre of Society Development for Democracy (COSDEC), address at Klipang RT/RW 002/001, Sendangmulyo, Tembalang,
Semarang, Central Java, in this regard is represented by Abhan, S.H.
(Executive Director);
13. Female Participation Institute (LP2), address at Jalan Abadi III Number 57 RT 06 RW 10, Geger Kalong, Bandung City, Java
Central, in this case is represented by Adriana Venny Aryani (Dewan
Pembina);
14. Aceh Judicial Monitoring Institute (AJMI), address on Banda Aceh Road-Medan Km. 4, Lor. Swalayan Ardila, Menasah
Mayang, Wants Jaya, Besar Aceh, Aceh, in this regard is represented by
Agusta Mukhtar (Executive Director);
15. Societal Transparency of Aceh (MaTA), address on Jalan Pang Akop Number 5B, Gampoeng Simpang Four, Kota Lhokseumawe,
Aceh, in this regard is represented by Alfian Husein (Executive Director);
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16. Trade Union Care Center (TUCC), address on T. Umar Street, Lor Filial 1, Geuceu Kayee Jato Village, Banda Aceh, Aceh,
in this case is represented by Arnif Muhammad (Executive Director);
17. Anti-Corruption Movement (GERAK), address on Prada Utam Road, Lor. Coconut Number 2, Banda Aceh, Aceh, in this regard
represented by Askhalani (Executive Director);
18. The Aceh Institute, address at Jalan Sawah Number 20, Lamteh, Ulee Kareng, Banda Aceh, Aceh, in this case is represented by Chairul
Fahmi (Executive Director);
19. Achehnese Civil Society Task Force (ACSTF), address on Jalan Merak Number 46 D, Neusu Aceh, Banda Aceh, Aceh, in
it is represented by Juanda Jamal (Secretary General);
20. Swadaya Community Forum (NGO) Aceh, address on T. Iskandar Number 56, Lambhuk, Banda Aceh, Aceh, in
it is represented by Sudarman (Secretary General);
21. Indonesian Women's Real Partner (MISPI) Aceh, address on Sokarno Hatta Road Number 6, Aceh Besar, Aceh, in this regard
represented by Syarifah Rahmatillah (Executive Director);
22. Male and Female Communication Forum (FORKOLAPAN), address on Gabus Road Number 34B, Lamprit, Banda Aceh, Aceh,
in this case is represented by Tasmiati Emsa (Executive Director);
23. Indonesia Environment Vehicle (WALHI) Aceh, located on Tgk Street. Ma'in Lor. C. -Do. II, Lambhuk, Banda Aceh, Aceh,
in this respect is represented by Teuku Muhammad Zulfikar (Director
Executive);
24 Names: Voluntedi Rinpatient Employment: Dosen
Address: Jalan H. Dahlan Rawa Sheep, RT 001 RW 007,
Duren Palm, East Jakarta;
25 Names: Muhammad Dahlan Employment: DPR-RI Assistant
Address: Tugu Highway Number 31, RT 010 RW 006,
Cilincing, North Jakarta;
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26 Names: Ridho Imawan Hanafi Job: Employee
Address: Struggle Road, RT 010 RW 007, Kebon
Oranges, West Jakarta;
27 Names: August Mellaz Jobs: Private Employees
Addresses: Lotus Road Number 16, RT 001 RW 013, Duren
Sawit, East Jakarta;
28 Names: Revelation Dinata Employment: Students
Address: Kramat Pulo Gundul, RT 011 RW 009,
Johar Baru, Central Jakarta;
29 Names: Erik Kurniawan Job: Private Employee
Address: New Kampung Path Number 3, RT 007 RW 007,
Pulo Gadung, East Jakarta;
30 Names: Desiana Samosir Employment: Wiraswasta
Address: Village Sukamenanti, RT 002 RW 003, Bukit
Kemuning, North Lampung;
31 Names Danardono Siradjudin Job: Private Employee
Address: Ramp H. Iming Number 2, Beji, City Of Depok, Java
West;
32 Names: Ratri Suspandriarsih Job: Private Employee
Address: Cipinang Muara III Kav. PLN, RT 012 RW
015, Jatinegara Jakarta East;
33 Names: Desi Anggraeni Job: Employee Indonesian Parliamentary Center (IPC)
Address: Perum Puri Cendana Block B. 5 Number 2, RT 007
RW 018, South Tambun, Bekasi;
34 Name: Ahmad Hanafi Employment: Pelajar
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Address: Lagoa Trs GG.V. C1, RT 012 RW 004, Koja,
North Jakarta;
35 Names: Arbain Employment: Private Employee
Address: Complex PAM Number 61 C, RT 009 RW 006,
Tanah Abang, Central Jakarta;
36 Names: Nur Asiah Jamil Job: Private Employee
Address: Cilobak Street IV Number 43, RT 004 RW 007,
Cinere, Depok City;
37 Names: Josep Kristiad e Employee
Address: Areman RT 004 rW 005, Obelis; Cimanggis,
Depok, Java West;
130 Names: Yulianto Job: Private Employee
Address: Old Depok Station Road, Depok, Pancoran
Mas, Kota Depok Jawa Barat;
131 Name: Yuristinus Oloan Job: Employee
Address: Cengkeh Road Number 25 RT 006 RW 002,
Hole Buaya, Ciumbrella, East Jakarta;
132 Names: yoes Irwan Coal Job: employees of BUMN
addresses: Turi Road Turi, Perk Berangir, NA IX-X,
Labuhan Batu Utara, North Sumatra;
133 Name: Rahmi Sociawaty Employment: Employee
Address: Jalan Sabandang A/149, Jaka Sampurna,
Bekasi West, West Java;
134 Names: lia Wulandari Job: Private Employee
Address: Andara Street Tip Number 35 RT 001 RW 004,
New Jati Base, Cinere;
135 Name: Y. Ari Nurcahyo
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Based on warrants dated September 27, 2011, September 28, 2011,
October 3, 2011, October 5, 2011, October 10, 2011, October 12, 2011, October 15,
2011, October 20, 2011, October 29, 2011, October 31, 2011, and 7 November
2011, authorized to i) Veri Junaidi, S. H; ii) Wahyudi Djafar, S.H.; and iii)
Alvon Kurnia Palma, S.H., i.e. advocate and Pengabdi Legal Aid that
incorporated in the Community Alliance Save the Election (Secure the election)
address at the Graha Building Lt. 1 Room 108, Jalan Gondangdia Kecil Number
12-14, Central Jakarta 10330, both individually and together acting
for and in the name of the power giver;
Next is referred as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[1.3] Read the request from the applicant;
Hearing the captions from the applicant;
Checking the evidence from the applicant;
Hearing expert adverts from the applicant;
Hear and read the written caption from Government;
Read the written conclusions of the petitioners;
2. SITTING LITIGMENT
[2.1] A draw that the petitioners have applied for
dated 10 November 2011 received and registered in Kepaniteraan
The Constitutional Court (subsequently called the Court of Justice) on the day
Thursday November 10, 2011 on the basis of the File Accepting Act
Request Number 409 /PAN.MK/ 2011 and in registration on Wednesday the
23 November 2011 with No. 81 /PUU-IX/2011, which has been corrected with
Work : Researcher
Address: Depok Mulya 2 Block AF-20, RT 004 RW 016,
Beji, City of Depok, West Java;
136 Names: Cecep Effendi, Ph.D. Job: Researcher
Address: Eramas 2000 Sawo Kecik II/5, RT 003
RW 014, Cakung, East Jakarta.
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pleas dated December 8, 2011 and received in Kepaniteraan
Court on 8 December 2011, outlining the following:
A. Constitution of the Constitutional Court
1. That further Article 24C paragraph (1) of the Third Amendment of the Constitution of 1945
states: "The Constitutional Court is authorized to judge at the rate
first and last of the verdict is final to test the invite-
invite against the Base Act, severing the authority dispute
state agencies that were authorized to be granted by the Basic Law,
severing the dissolution of the political party and severing disputes about results
General Election";
2. That based on provisions above, the Constitutional Court has
the authority to conduct legal testing of the Constitution of 1945
which is also based on Article 10 paragraph (1) Act Number 24
Year 2003 about the Constitutional Court stating: "Court
Constitution authorities prosecute at first and last level
The verdict is final for: (a) testing the legislation against the Constitution
1945";
3. The Constitutional Court is established as a constitutional guardian institution (The
Guardian of The Constitution). In the event of an Act that
contrary to the constitution, the Court may declare it not to have
the power of the law binding in both or all of them;
4. That as a constitutional guard, the Court also authorized the law to provide
the interpretation of the articles in the statute to be not
contrary to the constitution. The Constitutional interpretation of the constitutionality
Articles of legislation is the only interpretation (the sole
interpretation of the constitution) which has the power of law. With
thus against the chapters which have ambiguous, obscure,
and/or multitapsir chapters may also be in demand for the interpretation of the Court;
5. That through this request, the petitioners submitted the testing of the Article
11 letter i; Article 85 of the i; Article 109 of the paragraph (4) of the letter c, letter d. letter e, paragraph
(5), and paragraph (11) of the Act No. 15 Year 2011 on
Election organizers against Section 22E paragraph (5) of the Basic Law
State of the Republic of Indonesia in 1945;
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6. Based on those things above, then the Court is authorized to
examine and prosecute a quo;
B. The Legal Position (Legal Standing) The Petitioners
7. That Article 51 paragraph (1) of the Law Number 24 of 2003 on
The Constitutional Court states: "The applicant is the assuming party
the rights and/or its constitutional authority are harmed by the expiring
legislation, i.e.: (a) individual WNI, (b) the unity of the law society
the custom of all is still alive and in accordance with the development of the society
and the principles of the unity state of the Republic of Indonesia are set in law, (c) the body of the law.
Public and private laws, or (d) state agencies ";
8. That refers to the Constitutional Court Decree Number 006 /PUU-III/2005
Perkara Number 11 /PUU-V/2007, the applicant must qualify as
following:
a. The existence of the constitutional right of the Applicants is granted by the Invite-
Invite the Basic State of the Republic of Indonesia 1945;
b. That the constitutional right of the applicant is considered by para
The applicant has been harmed by an Act that is tested;
c. That the constitutional loss of the intended applicant is
specific or special and actual or at least a potential that
according to reasonable reasoning can be certain to occur;
d. A causal link between the loss and the enactment of the Invite-
Invite is being asked to be tested;
e. It is possible that by the request of the request then
the constitutional loss that the postured of the postured will not or no longer occur.
9. That the five terms ng Prapatan XII RT 006 RW 004,
Tegal Parang. Mampang Prapatan, Jakarta
South;
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127 Names: Antonius Benny Susetyo Job: Pastur
Address: Jalan Rawa boards RT 006 RW 006, Bintaro,
Pesanggrahan, South Jakarta;
128 Names: Ngatoilah Employment: Employees
Address: Jalan Telaga Jewel I/28 RT 007 RW 001,
Sunter Jaya, Tanjung Priok, North Jakarta;
129 Names: Willi Sumarlin Job: Privat t in the existence of Article 11 of the letter i,
Article 85 of the letter i, Section 109 of the 4 letter c, letter d, letter e, and paragraph (11) Act
15/2011 in conflict with Section 22E paragraph (1) and paragraph (5) UUD
State of the Republic of Indonesia 1945. Thus legal standing
as mentioned in Article 51 of the paragraph (1) of the Court Act
Constitution and Decree No. 27 /PUU-VIII/2009 has been met by the
applicant;
24. That based on the above description, clearly the applicant has a legal position (legal standing) as the Applicant Testing Act 15 Year 2011 on Election Organizers and having a relationship
the law (causal verband) against Section 11 of the i, Article 85 letter i, Section 109
paragraph (4) letter c, letter d, letter e, letter e, paragraph (5) and paragraph (11) Act 15/2011 against
Section 22E paragraph (5) of the Constitution of the Republic of Indonesia Year
1945;
25. That based on the above description, clearly the applicant has
meets the quality and capacity as the applicant of the Invite-
Invite against the Basic Law of 1945 as defined in
Section 51 of the letter c Law No. 24 of 2003 on the Court
Constitution, and a number of Constitutional Court rulings that provide
an explanation of the terms for being a testing applicant
Act against Act The base of 1945. Accordingly, it is clear
the entire applicant has the right and legal interest of representing
the public interest to apply for testing of Act 15/2011
against Section 22E of the paragraph (5) of the Constitution of the Republic of the Republic
Indonesia Tahun 1945;
C. The Reasons For The Wish
C. 1. The provisions of the resignation of the political party without a time delay to
register as Election organizers as set out in Article 11
letter i and Article 85 letters i, throughout the phrase " withdrew from
membership political party ... at the time of registering as a candidate " Act 15/2011
contrary to Article 22E paragraph (5) UUD 1945
26. That Section 11 of the letter i Act No. 15 Year 2011 on
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The election organizer further reads " Terms for being a candidate
KPU member, KPU Province, or KPU Regency/City is: letter i:
resign from political party membership, political office, office
in government, and the State-owned Enterprises/Regional Business Agency
at the time of registering as a candidate"
That the scope of Article 85 of the letter i Act a quo was read
following, " sprerequisite to be a prospective member of the Bawaslu,
Bawaslu Province, District/City and Panwaslu District, as well as
Field Election Supervisers are: letter i: resigning from
membership of the political party, political office, government office, and
Negera-owned Enterprises/Regional Business Agency at the time of enlisting
as a candidate "
The provisions are in conflict with Article 22E of the paragraph (5) of the 1945 Constitution
in full it reads "Article 22E paragraph (5) UUD 1945:" General election
hosted by a national electoral commission,
remain and be independent; "
27. That the scope of Article 85 of the letter i Undnag-Invite a quo further
reads as follows:
terms for being a prospective member of Bawaslu, Bawaslu Province, Panwaslu
Regency/City and Panwaslu Subdistrict, and Election Supervising
The field is:
letter i: resigning from the membership of political parties, political office,
posts in government, and the Negera-Owed Business Agency/Enterprises Entity/Agency
Regions at the time of registering as candidates; Conditions Contrary to Article 22E (5) of the paragraph (5) of the Constitution of 1945 which
the complete reads:
"The general election is held by a general election commission
is national, fixed and independent;"
28. That the scope of the "general election commission" sense space is not limited to the
General Election Commission (KPU). Subordinates in this context are the
sections of the Election organizer definition as referred to in the provisions
Article 22E paragraph (5) of the 1945 Constitution, that general elections are organized by
a general election commission which is national, fixed, and independent. Thing
is based on an interpretation of the definition of the election commission
25
general (small letter) as mentioned in the provisions of Article 22E paragraph
(5) UUD 1945;
29. That Considerations of Constitutional Court of Constitutional Court No. 11 /PUU-
VIII/2010 on the testing of Act No. 22 of 2007
affirm as follows:
Klausula "a general election commission" in the 1945 Constitution does not refer
to an institution name, but points to a function
holding a national, permanent and independent election.
Thus, according to the Court, the election function of the
elections not only implemented by the General Election Commission (KPU), will
but include also the electoral supervisors agency in this case
General Election Supervisors (Bawaslu) as one function unity
hosting a national, fixed, and independent election;
INTERPRETS THE WORD "INDEPENDENT" IN ARTICLE 22E PARAGRAPH (5) UUD 1945 30. That the "independent" phrase "independent" in Article 22E (5) of the Constitution of 1945 can
is not defined by political parties. Such refinement looks good in
debates drafting the constitution (original intense), teleological interpretation,
historical interpretation/legal history, international principles of organisers
Election and inclination International about the organizers of the Election;
31. That since the beginning, the constitutional debate has directed that the organizers
Elections are independent, nonpartisan and not from political parties.
The debate is visible from the views of the PDIP Fraction, which mentions:
"the election The public should be held by a general election commission
independent and its members are not active members of the political party participants
Elections" (vide of the Comprehensive Agreement of the Change of the 1945 Constitution: Background,
Process, and Results From 1999-2002, Book V of the General Election. The General
and the 2010 MK Agency, the thing. 517). Complete the F-PDIP proposal as
The following:
paragraph (2): " The General Election is organized by an electoral commission
a national, permanent, independent and member-member general
has Excellent ability and not an actresence of a number of articles, verses and phrases
in Act 15/2011;
23. That thus the applicant is eligible as
referred to as Article 51 paragraph (1) of the Constitutional Court Act and the Court of Justice
Constitution Number 27 /PUU-VIII/2009, namely: as the legal entity
23
concern the electoral and democratic issues in particular the advocacy of the election and the perone
which has a constitutional interes iv>
29
envisaged in the formulation of the terms of the KPU and Bawaslu
in Article 11 of the i and Article 85 of the letter i. The debate has come to light whether
the terms of the terms "are not members of the political party .... At least
within the term 5 (five) of the year no longer members of the political party "
will be abolished and replaced with the phrase"withdrew from
political party membership";
41. That attempt to remove the phrase "5-year term is no longer
members of the political party" being a long debate in the House, that is between two
group of factions in the House. The first group consisted of 7 factions: PDIP,
Golkar, PKS, PPP, PKB, Gerindra and Hanura, who wanted to limit
5 years time not to be a member of the political party in the provisions of Article 11
letter i Act 22/2007 Wiped. The first group wanted for
to be a member of the KPU, KPU Province/District/Kota and Bawaslu, Bawaslu
The province as well as Panwaslu Regency/Kota was quite resigning. The group
second consists of the Democratic faction and the PAN that wants
a 5-year requirement not to be a permanent member of the party in effect for
maintaining independence and independence of the Election organizers. With
so, members of the KPU, provincial KPU, and district/city KPU are not filled
by people coming from the political party;
42. That if viewed from a sociological interpretation approach, clause "withdrew from the political party membership ... at the time of enlisting
as a candidate" was born as an accumulation of the anger of the political party against
the disprofessional of the KPU in the staging of the 2009 Elections. It appears
many conjecturing that the KPU's disprofessional is a part of
the design of the ruling political party to weaken the other Election participants.
The accumulation of political party disappointment when Andi Nurpati as a member of the KPU
joining the Democratic Party. This issue was then pushed
the political party to include its people into the KPU, provincial KPU,
and district/city elections to secure the vote in the Election;
43. That based on The Socio-historical interpretation, the phrase "withdrew from the membership of the political party ... at the time of registering as a candidate" appears over
the disappointment of the House majority parties outside the top Democrat
The phenomenon of the lower members of the KPU in the organization of political parties
rulers. Anas Urbaningrum (Member of KPU 2004) and Andi Nurpati (Member
30
KPU 2009), both withdrew and joined the Party
Democrats as the ruling party. An alleged political party that
lost, that the Democratic Party's victory did not escape the members
the KPU who sided with or deliberately placed discretely in the KPU.
Due to the disappointment, then in Act 15/2011, the defeated political party
in the general election sought to include its people in
membership of the KPU, by aboliciting the provisions of Article 11 of the letter i Act
22/2007 in particular On condition not being a member of the political party at least 5
years before enrolling;
44. That the phrase "resigns from politicy party membership -- on
while registering as a candidate" appears as the party's disappointment form
politics is seen from some of the bill's work committee members ' comments
Election Organizers, as summarized below:
Ganjar Pranowo (Chairman Of The Work Committee Drafting Bill 15/2011) in
interview with Republika Newspaper (Wednesday, September 21, 2011 thing. 10) (vide
Proof P-5), stated. "Problema, when there were fixed voter list things (DPT) and future
later revealed that Andi Nurpati entered the Democrats after the Election
2009, it became an empirical and sociological condition".
The same statement delivered Arif Wibowo (Member of the Commission II of the DPR RI-
PDIP fraction) on talk shows on Radio RRI (Friday, January 28, 2011, at
17.00-18.00) (vide Proof P-6): " Don't until we know that the nonpartisan people
at best, the most understanding of the election, the most understood
how to create justice, the fact that there was in the 2004 election, there
the people which is backwards from kpu, which is never explained to
the public, and Only explained because you want to go back to campus, and that
one again because the statute does not prohibit it.
being a member of the political party, even being a government official, it
Same as in the 2009 election, many unexplained things,
which actually raises a prolonged suspicion.
The answer is simple if the government wants to provide an explanation
of the thing that can then answer questions from friends,
however Because it never answers, it raises suspicion
31
-Do not later be repeated again. So please just friends
from nonpartisans applying, from parpol applying, toh being a team
the selection of the government, and we all also keep an eye on".
Strengthening The 15/2011 Law-forming Act, Agun Gunandjar in talk show
on Radio KBR 68H (Monday, January 31, 2011, 8:00-21.00).
" So all citizens have the same position in the eyes of the law,
What religion would it be, want him from a political party instead of, want an army too
may. So we do n' t box nonpartisan or
nonpartisans. All citizens can, we set the terms".
45. That based on the teleological interpretation of the drafting of the phrase "resign
self from membership of the political party ... at the time of registering as a candidate" clearly
aims to put the political party people in the KPU, KPU
provincial /kabupaten/city, and Bawaslu, Bawaslu province as well as Panwaslu
county/city. The phrase serves and means to
protect the interests of the political party in the Election through membership of the KPU,
provincial KPU, and county KPU/kota;
46. That the phrase "resigns from the membership of the political party ...
at the time of registering" is the investigation of the Invite-
Invite to the provisions of Article 22E of the paragraph (5) Third Amendment of the 1945 Constitution
Confirms the nature of KPU's independence. Legislation that
dominated by political parties represented in the House is well aware that
Article 22E paragraph (5) The Third Amendment of the 1945 Constitution prohibits party members
politics to be the organizer of the elections. Thaip of the KPU and the Bawaslu of the political party membership element.
The decisive Separation between the contestant, the organizer, and the supervisor
aims to avoid conflict of interest;
The veiled Agenda of the Act in interprets the word "Mandiri" against Article 11 of the letter i and Article 85 of the letter i Act
Number 15 of 2011 on Organizing Elections
40. That the debate about self-improvement "independent" appears in drafting
Act of 15/2011 in lieu of Act 22/2007. The debate
manipulation will benefit certain groups in un
proportionately. Based on this definition, in context
the transparency of the Election organizers is prosecuted for being able to act
open in the exercise of duty and duty in
the holding of elections. This openness is important to guarantee
the credibility of the process of organizing the Election, so it can be accepted
by all groups of good political parties, governments, the tapestry society
and the media. The openness of the organizers will open the participation room
35
and public engagement in exchange thoughts as well as concepts of
Election organizing process.
e. Efficiency (efficiency). Efficiency and effectiveness are an important component of the entire electoral credibility. Efficiency is essential to
the process of staging the Election due to technical damage and problems
can lead to chaos and damage of law and order.
Efficiency and effectiveness depend on several factors, including
staff professionalism, resources and most important is the time
enough to prepare the Election and train them that
has a responsibility for holding the Election.
f. Proffessionalism (professionalism). . The elections should be managed by
special groups/people who have expertise, trained and dedicated.
A group of expertise is made up of experts and is capable of
manages as well as implementing Elections.
g. Service-mindedness (service). According to the International IDEA, the main reason for the creation of an Electoral Board is to provide
services to stake holders, both the public and the participants
Election. The organizers of the Election must develop and
publish the standard of service for each stage
the holding of elections. Good service is a benchmark
for stakeholders to assess the performance of the organizers
Election. Take the standard example of basic service standards
included in the Electoral Law framework as in Canada, among
others: time-based standards such as deadlines to announce
Election results, voter card deployment or distributing information
about the polling location, public complaint of a
offense gets a response and another;
52. That the development of Election organizers in the world is filled by experts and
leaving membership of the partisan group. Organizer
of experts present in 90 countries with a percentage of 44.5%, partisans of only 18
states (8.9%), the combination of experts and partisans is in 37 countries
(18.3%) (http://aceproject.org/epic-en/CDTable?question=EM014).
Based on that data comes the tendency that organizers
The election of an expert group is more widely accepted than the group
36
partisans. This trend arose due to a number of causes of failure
and the weaknesses of the holding involving a partisan group.
Some of the causes include: lack of confidence stakeholder at
organizers, government influence and or politician on the decision
organizer, partisan approach by the organizer or its members,
underprofessional of the organizer, as well as inconsistency
the organizer or financial irregularities. If the Election organizers are filled
by multiparty, there are some failures among others: member actions
may be motivated by political interests, do not have the experience
professional or proper qualification, it becomes difficult to use if all
parties are represented, less credibility if any party is not
included or if the political party is not respected, consensus is difficult to achieve
in decision making as well as Organizer unity will be split
due to public debate between parties (Electoral Management Desaign: The
International IDEA HandBook, 2006. Retrieved on the ACE Electoral website
Knowledge Network http://aceproject.org/ace-en/topics/em);
Conflicts of Interest and Constitutional losses of the applicant
53. That based on the interpretation of Article 22E clause (5) of the 1945 Constitution, the phrase
"Mandiri" is not derived from the political party/cader/caretaker of the political party.
The refinement aims to ensure the organiser of the election
which is independent. and impartial so that it can carry out the general election
directly, general, free, secret, honest, and fair every five years
as set in Article 22E paragraph (1) of the 1945 Constitution.
54. That provision intentionally separates the organizers
Elections with the political party (Election participants). This separation confirms
that the Election participant may not perform functions as an organizer
at once, as the intention is contained in Article 11 of the letter i and
Article 85 of the letter i Act 15/2011. Participants who are captured as organizers
The election is feared to bring up a conflict of interest in both.
The function and role of Election organizers in each election stage will be
closely related to the interests of the participants Elections (political parties). In other words, the interests of the Election participants will always be present and cannot be avoided
in the implementation of the Election stage. as it is impossible to make
Election participants (political parties) as a role as the organisers
37
Elections.
55. That non-independent and independent election organizers as a result of
conflicts of interest as well as the above description, would be detritable to
a democratic election. Conflict of interest will also
cause the integrity of the process and the results of the Election be in doubt. If
this condition occurs then the interests of the Applicant will host
A democratic, honest, and fair election is not met.
56. That independent and partial Electoral organizers would
weaken the Petitioners ' s struggle to push for an Election
democratic.
57. That the birth of a number of articles, verses, and phrases in the a quo Act,
has been deeply disturbing and impeded the activities of the applicant as
a subject of law concerned with the issue of Elections and democracy in Indonesia,
which entitled to both institutional and individual roles
ensuring a fair and fair election by a standalone institution
and impartial.
58. That an independent and partial Election organizer
causes/potentially the emergence of a constitutional loss of the applicant,
that is:
a. Unfacilitating the fulfillment of voter constitutional rights to
get an honest and fair election by an independent institution and
impartial;
b. It does not comply with the electoral needs of voters to get
an hone to the public benefit in general,
in this case the government regulations and decisions are available clearly
and Deployed. Transparency is a prerequisite of accountability
accountability and guarantees of certainty. Transparency is also defined
with sufficient information, accurate and timely
about the public policy and its formation process. Information that
will reasonably facilitate the public to participate in
supervision so that the issued policy may provide
optimal results for society and pre st and fair election organized by independent agencies
and impartial;
59. That based on the above description then the provisions of Article 11 of the letter i and the Article
85 letter i, throughout the phrase "withdrew from the political party membership
..." clearly contrary to Article 22E paragraph (5) of the 1945 Constitution;
C. 2. Article 109 of the paragraph (4) of the letter c, letter d. letter e, paragraph (5), and paragraph (11) contrary to Article 22E paragraph (5) of the 1945 Constitution
60. That the scope of Article 109 of the hood reads as follows:
paragraph (4) DKPP as referred to by paragraph (1) consists of:
b. 1 (one) of the KPU elements;
38
c. 1 (one) of the Bawaslu elements;
d. 1 (one) of the representatives of each of the political parties in the House;
e. 1 (one) Government envoy;
f. 4 (four) public figures in terms of the number of party envoys
the politics in the House of Representatives number odd or 5 (five) persons
society in terms of the number of political party envoys in the House
even.
Verse (5) in terms of DKPP members who are derived from a public figure
as referred to in paragraph (3) the letter d is 4 (four) people.
The president and the DPR each propose 2 (two) people.
Verse (11) any DKPP member of any element can be replaced between time
based on the needs and considerations of each of the elements accordingly
with the applicable provisions.
The provisions are contrary to Article 22E of the paragraph (1) and the paragraph (5) of the Constitution
1945 the full article reads:
Article 22E paragraph (5) of the 1945 Constitution: "General election is organized by a
national, permanent and independent electoral commission;"
61. That the DKPP is an institution in charge of the conduct of conduct
Election organizers. DKPP is authorized to check and prosecute
any alleged ethics violations committed by the KPU and/or Bawaslu.
Therefore, the DKPP authority is strategically important and important for the sake of
independence of KPU and Bawaslu as Election organizers. The strategic value
DKPP becomes dangerous if its membership is filled by a representative
the government and the political party owner seats in the House. The DKPP has the authority
to check, drop sanctions and even recommend
stop members of the KPU and Bawaslu members to the President. With
so, an attractive interest will be very much happening in the DKPP;
62. That the provisions of the membership of the DKPP are a real form
the desire of the political party of the Election participants to the security of interests
in the Election. The KPU as the acting Election seeks
to enter the party person, as with Bawaslu in charge of doing
oversight. As it was to escort the people sitting in the KPU and
Bawaslu from the threat of conduct violation, the DKPP was filled by
the representatives of the political parties and the government. His concern is each one-
39
Each Election participant will instead hold each other hostage-alone
organizers and the attraction draw an unending interest.
In other words, the existence of elements of the political party and the government in DKPP
contrary to the independent nature of the Election organizers.
63. That changes in the Election Organizing Act are addressed
by complicated and not quite as effective as a correction mechanism against performance and
an alleged violation of the KPU. The Council of Honor was instead the
shield for the KPU to remove from the noose of dismissal. That is because
The composition of the Honorary Council is dominated by members of the KPU as well
with its formation mechanism. The election participants ' political party did not
have direct access to a correction to the alleged
violation of the code of conduct. Based on that background then the DKPP is filled by
the government and the political parties of the Election participants. Even the members of the DKPP who
are derived from elements of society must be recommended and selected by
government and DPR;
64. That the provisions of Article 109 (4) of the letter c, letter d, letter e, verse (5), and
paragraph (11) open the intervening room so large with
include elements of the government and political parties sitting in the House. Almost
overall DKPP members were instead filled by the election participants ' representatives and
The government. This is expressly contradictory to MK Putermination Number 11/
PUU-VIII/2010 on the testing Act 22/2007 and Article 22E paragraph (5) UUD
1945 that wished for an independent organizer, free of
the intervening room interest;
65. That the provisions weigh the point [3.23] MK Number 11/PUU-VIII/2010 about the testing Act 22/2007 affirm as follows: " ... nevertheless, in the future to guarantee
independence in Hosting of the luber and jurdil elections
by KPU and Bawaslu, Honorary Council members must be filled by
members originating from KPU and Bawaslu are balanced.
In the framework this thought, required there is only one Council
Honorary organizer Elections are good to keep an eye on the behavior of members
KPU and members of Bawaslu. Thus the composition of the Honorary Board member
for both national and regional level must consist of a representative
member of the KPU (KPU, Provincial KPU, or KPU Regency/City) as well as Bawaslu
40
(Bawaslu, Panwaslu Province, or Panwaslu Regency/City)
seimbang/same number and plus one person from outside parties
independent";
66. That the existence of a representative political party in the House of Representatives is potentially
causing the election to be untruthful and fair, the real thing
contradictory to the 1945 Constitution, for not as well as the election participants
is Political parties that are currently represented in the House. There is a participant's political party
The elections that are later not represented in the DKPP. With conditions such as
there is an inequalities between the political parties of the Election participants.
That based on the above description then the provisions of Article 109 paragraph (4) of the letter c,
letter d, letter e, paragraph (5), and paragraph (11) are contrary to Article 22E paragraph
(5) UUD 1945.
D. Reason For Provision
67. That under Section 129 of the paragraph (4) of the Act of Transitional Act 15/2011, the team
selection of members of the KPU and Bawaslu should have been set up at least 2 months
after this Act was promulred.
68. That of the 15/2011 Act was promulcised on October 16, 2011
stating the slowest date of 16 December 2011 the selection committee should be
already formed and run the selection stage.
69. That in order not to apply the application of laws based on the interpretation
inconstitutional about the terms of the KPU and Bawaslu membership in the process
selection, then the applicant asks the Court to publish the Verdict
which stated firs organizers.
Self-sufficient. The question is whether the candidates are from
the political party cannot be independent or the candidates who are not
coming from the political party will inevitably be able to be independent and free of
the intervention of the party Whatever. Therefore, the Government argues
the need for a governance system in the KPU and Bawaslu that can
guarantee the institution's independence. So anyone who goes in there
will be tied to a self-referenced governance system
the political attitudes and behavior of the Election organizers except only to
can host a direct, public election, free, secret,
honest, and fair.
IV. Conclusion Based on that explanation above, the Government pleads to
the Constitutional Court of the Republic of Indonesia that checks, prosecute, and
severing the testing of Act No. 15 of 2011
against the Constitution 1945, it may be possible to give the following verdict:
1. Reject the applicant entirely; 2. States that the provisions of Article 27 paragraph (1) and (3), Section 11 of the letter i and
Article 85 of the letter i, Section 109 of the letter c, d, letter e, paragraph (5), and paragraph
(11) Act Number 15 Years 2011 on Election Organizing
General does not contradictory to the 1945 Constitution;
3. Nevertheless, if the Constitutional Court of the Republic of Indonesia argues
another, please a wise and adiedim ruling (ex aequo et bono).
[2.4] A draw that the petitioners have submitted a conclusion
written dated January 2, 2012 which was accepted in the Court of Justice in
on January 2, 2012 which at the point remained at its founding;
[2.5] weighed that to shorten the description in this ruling,
everything that happened at the trial was quite appointed in the news of the event
the trial, which is one unbreakable unity with
ruling This;
48
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the a quo plea is to
test the 2011 15-Year Act on Election Organizing
General (Republican Gazette) 2011 Indonesia Number 101 Additional
The State of the Republic of Indonesia No. 5246, subsequently called UU
15/2011), namely:
Article 11 of the letter i throughout the phrase, " withdrew from party membership
politics, ... on while registering as a candidate ";
Article 85 letters i throughout the phrase," resigns self from party membership
politics, ... at the time of registering as a candidate ";
Article 109 paragraph (4) of the letter c stating," 1 (one) of the individual envoys-
the political party that is in the House ";
Article 109 of the paragraph (4) of the d which states, "1 (one) Government Messenger";
Article 109 paragraph (4) of the letter e along the phrase " 4 (four) of the public figure
in terms of the number of political parties present in the House of Representatives is odd or
... in terms of number existing political parties in the House of Representatives ";
Article 109 paragraph (5) states, "In terms of DKPP members who are derived from
a public figure as referred to in paragraph (4) of the letter d (4)
(four) persons, the President and the DPR each propose 2 (two)
persons";
Section 109 of the paragraph (11) stated, "Any DKPP member of any element
may be replaced intertime based on their respective needs and considerations-
each element in accordance with the applicable provisions";
against the Republican Basic Law Indonesia Year 1945
(next called UUD 1945);
[3.2] Weighed That Before enter the subject of a plea, the Court
Constitution (subsequently called the Court) first will
consider:
49
a. Court Authority to prosecute the a quo;
b. Legal standing (legal standing) the applicant to submit
a request a quo;
Constitutional authority
[3.3] weighing that under Article 24C of paragraph (1) of the 1945 Constitution and the Article
10 paragraphs (1) letter a Law of the MK as amended by the Act
No. 8 Year 2011 on Changes to the Law Number 24 Year
2003 on the Constitutional Court (State Sheet of the Republic of Indonesia Year
2011 Number 70, Additional Sheet of State of Indonesia Number 5226),
as well as Article 29 paragraph (1) of the letter of a Law Number 48 Years 2009 on Power
Judiciary (State Sheet of the Republic of Indonesia 2009 No. 157,
Additional Gazette of the Republic of Indonesia Number 5076, subsequently called
UU Number 48/2009), one of the powers of the Republic of Indonesia in 2009. The Constitutional Court is
trial on the first and last level of which the verdict is final to
test the Act against the Basic Law;
[3.4] Draw that the applicant's plea is to test
the constitutionality of norm phrases contained in Article 11 of the letter i; phrase which
contained in Article 85 of the letter i; Article 109 of the letter c; Article 109 of the letter (4)
letter d; the phrase contained in Article 109 of the paragraph (4) letter e; Article 109 of the paragraph (5);
and Section 109 of the paragraph (11) of the Act of 15/2011 against UUD 1945, which be one
Court authority, so therefore the court is authorized to
prosecute a quo;
The Law Occupation (Legal Standing) of the applicant
[3.5] A draw that Under Article 51 of the paragraph (1) of the MK Act and
The explanation, which may apply. testing of the Act
against the Constitution of 1945 is those who consider the rights and/or authority
its constitutionality given by the 1945 Constitution is harmed by the enactment of a
Act, i.e.:
a. Individuals in Indonesia (including groups of people
have common interests);
50
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The name of the supplicant is: "
. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the legislation
testing;
[3.6] In a draw that the Court since the Constitutional Court's termination
Number 006 /PUU-III/2005, dated 31 May 2005, and the Constitutional Court
Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-
subsequent ruling establishing the loss of rights and/or authority
constitutionally referred to Article 51 of the Article 51 paragraph (1) the MK bill that are national, fixed and independent. The normative framework for
embodied the governance of the Election organizers so that it would be necessary
continuously we are fully reed together. Indeed we have to be able
make sure whether or at least do the build
47
predictability through various normative frameworks to guarantee the
candidates who are elected as KPU and Bawaslu can
embody the national, fixed and
election the President and the DPR each propose 2 (two)persons ";
Article 109 of the paragraph (11) states," Each DKPP member of each element
can be replaced intertime based on needs and consideration respectively-
each element is appropriate. with applicable provisions ";
54
against the Basic Law of the Republic of Indonesia in 1945
(subsequently called UUD 1945), that is:
Article 22E paragraph (1) stated:
" The general election is executed in person, general, free, secrets,
honest, and fair every five years ";
Article 22E paragraph (5) states:
" The general election is organized by a general election commission that
is national, fixed, and self-sufficient ".
[3.13] Draw that general election as one of the principal mechanisms
democratic procedures get a constitutional guarantee in the 1945 Constitution.
The continued departure of democracy through the general election is conducted periodically five
years once and must meet the direct, public, free, secret, secret,
honest, and fair [vide Article 22E paragraph (1) of the 1945 Constitution]. From the procedural side, elections
common must be done five years in person, general, free, and
secret, whereas from a substantial side, the general election must be implemented
freely, honestly, and fair. Honest and fair asas can only be realized if, among other
, general election organizers may not be intervened or influenced by
any other party. Therefore, general election organizers cannot
be handed over to the government or political parties because potentially and cartilage
are affected or exploited by various interests, so the election
the general must Hosted by a public election commission that is
national, fixed, and independent [vide Article 22E paragraph (5) UUD 1945] with one
Election organizer next named the General Election Commission
as organization unity at the center level and at the area level;
[3.14] Rate that The applicant postulate the provision of the resigned
of a political party without a time delay to register as an organizer
election as set in Article 11 of the letter i and Article 85 of the letter i Act
15/2011, throughout the phrase "resigned from the membership of the political party ...
at the time of registering as a candidate" contrary to Article 22E of the paragraph (5) of the Constitution
1945;
The court of opinion, the terms as referred to in Article 11 of the letter i and
Article The 85-letter i Act of 15/2011 is closely related to the meaning of Article 22E paragraph
55
(5) The 1945 Constitution states, "The general election is organized by an
a national, fixed, and independent electoral commission", especially in
the word "independent";
Self-term, if referring to the historical background of the UUD change process
1945, closely linked to the non-partisan concept. That is, the self-reliance
by the general election commission, as referred to by Article 22E paragraph (5)
The 1945 Constitution is an impartial independence to the political party or
any contestant due to the electoral commission the general is the institution
the general election organizer and the political party are the participants of the general election.
The independent or non-partisan concept confirms that the election organizer
general (the electoral commission) should not be on the side of the to one of the participants
general election;
The General Election Commission (with the letter) large), Bawaslu, and Honorary Council
Election organizers, according to the Court, are part of the electoral commission
general (with small letters) referred by Article 22E paragraph (5) Constitution of 1945
has an independent nature, as well have been described in the Number
11 /PUU-VIII/2010 dated March 18, 2010, in paragraph [3.18] points 5, stating,
" That to guarantee the convening of the luber and jurdil elections, Article 22E paragraph (5) UUD 1945 determining that, " The general election is organized by a general election commission which is national, fixed and independent ". Sentencing " a general election commission " in the 1945 Constitution does not refer to an institution name, but points to the function of holding a national, permanent, electoral election. Independent. Thus, according to the Court, the function of the holding of elections is not only implemented by the Electoral Commission (KPU), but also includes the general election watchdog agency in this case the General Election Supervisors Board (Bawaslu) as the A single entity, a national, fixed, and independent election function. This understanding further complies with the provisions of the Constitution of 1945 which mandates the presence of independent election organizers to be able to play in general elections that meet the principles of luber and jurdil. The holding of elections without supervision by an independent agency will threaten the principles of luber and jurdil in the conduct of the elections. Therefore, according to the Court, the Supervising Board of Elections (Bawaslu) as set out in Chapter IV of Article 70 through Article 109 of the Act of 22/2007, should be defined as the Election Organizing institution in charge of conducting the supervision of the conduct the general election, so the function of the staging of the Election is conducted by the organizer element, in
56
this is the General Election Commission (KPU), and the Election watchdog element, in this case the General Election Supervisors Board (Bawaslu). In fact, the Council of Honor, which oversees the conduct of Election organizers, must be defined as an institution that is a single unit of function holding the general election. Thus, the guarantee of the independence of the election organizers becomes real and clear; "
The departure of the Election organizers to the Election participants will result in
distrust as well as result in the process and results that are confirmed to be not fair, so
eliminates the meaning of democracy that seeks to be embodied through the election
the common "direct, common, free, secret, honest, and fair" election. This is the
not in line with logic and fairness, if the Election is organised by
an institution composed or composed of members of the Election itself.
Although it is not something that would, there is a party engagement. politics as
general election organizers will open the chances of departure (conflict of
interest) general election organizers to one of the contestants;
According to the Court, the party's direct involvement politics as
general election organizers, at least can done through two ways,
that is i) the political party members are members of the electoral commission
general; or ii) the accommodations of people who are not political parties, but
ter stating," 1 (one) of the Government's messenger ";Article 109 paragraph (4) of the letter e along the phrase, " 4 (four) of the people of the community
in terms of the number of political parties in the House of Representatives is odd or
... in terms of the number of political parties existing in the House of Representatives ";
Article 109 of the paragraph (5) states," In terms of DKPP members who are from
the figure of the party. A society as referred to in paragraph (4) of the d (4) letter of 4
(four) people, n's independence. or an honorary board that handles code violations
Election organizers, one of which is determined by the membership composition
the honorary board is concerned. The honorary board has a duty to
assess there or no violation of the electoral code of conduct of the election in
in relation to its duties of organizing the Election, i.e. the task
organizes and oversees the participants general election;
If honorary board membership is filled by election participants, it
so potentially holding or threatening the organizer ' s independence
the general election, because the party is supposed to be supervised (i.e. the party politics
general election participants) may change the role of the party oversee
general election organizers (i.e. KPU and Bawaslu), which surely
incline irregularities for the general election organizers in
carrying out its duties. In addition, the government's element in council membership
the honor should be abolished given the existence of the government (executive)
in the Indonesian political system cannot be separated from the existence of a political party
winner Elections. With the government's application of the DKPP membership,
The court judged it to further guarantee the independence of the DKPP as
the agencies that oversee the conduct of Election organizers, as well as improve
the confidence of the people which is an important factor in the implementation of
a democratic and qualified general election, which in the end
provides a strong accountability for the general election winners.
60
Based on that consideration, as well as the Court consideration in
The Number 11 /PUU-VIII/2010 dated March 18, 2010, most notably paragraph
[3.23], the Court declared Article 109 of paragraph (4) of the letter c, letter d, and the letter e Act 15/2011 along the passage of the sentence "4 (four) public persons in matter
the number of political parties present in the House is odd or ... in terms of
the number of political parties present in the House of Representatives is even" contradictory
with Article 22E paragraph (5) of the 1945 Constitution. As of this Section 109 paragraph (4)
is further read,
" DKPP as referred to in paragraph (1) consists of:
a. 1 (one) of the KPU elements;
b. 1 (one) person of the Bawaslu element;
e. 5 (5) people's public figures. "
[3.16] Draw that the applicant postulate Article 109 of the paragraph (5) Act
15/2011 which states, " In terms of DKPP members who are derived from the figure
the society as referred to in paragraph (3) the letter d [sic] totals 4
(four) people, President and DPR each propose 2 (two) persons ",
contrary to Article 22E of the paragraph (1) and paragraph (5) of the 1945 Constitution;
Against that, the Court considered that Article 109 of the paragraph (4)
letter e Act 15/2011 along the passage of the sentence " 4 (four) public figures
in terms of the number of political parties existing in the House of Representatives is odd or ...
in terms of the number of political parties existing in the House of Representatives " has been
stated in conflict with the 1945 Constitution, so that Article 109 of the paragraph (4) is indicated. letter e
Act 15/2011 is further read,
" DKPP as referred to in paragraph (1) consists of:
e. 5 (5) people's public figures. "
Based on those considerations, the provisions set out in Article 109
paragraph (5) of the Act of 15/2011 no longer has a binding legal force.
Next to it, in the 15/2011 Act script downloaded from the page
www.setneg.go.id, Section 109 of the paragraph (5) of the Act of 15/2011 is redactively written,
" In terms of DKPP members who are from a public figure as
is referred to paragraph (4) letter d of 4 (four) persons, President and The DPR each proposed two (two) people ", and Article 109 of the paragraph (6) of the Act of 15/2011
61
Redaktional reads, " In terms of DKPP members who are derived from the figure
the society as referred to paragraph (4) letter d number 5 (five) persons, the President proposed 2 (two) persons and DPR proposes 3 (three)
persons ". After the death of the provisions, the Court did not see it
as a constitutional flaw, but rather a redactional error. However
thus, the Court did a correction, namely that "paragraph (4) of the letter d" referred to by Article 109 of the paragraph (5) and paragraph (6) a quo, it should be written or
refer to " paragraph (4) of the letter e";
[3.17] weighed that the Applicant postulate Article 109 of the paragraph (11) Act
15/2011 that stated," Any DKPP member of any element may be replaced
between time based on need and the consideration of each element
in accordance with the applicable provisions ", contrary to Article 22E of the paragraph (1)
and the paragraph (5) of the 1945 Constitution;
The existence of the DKPP consisting of 3 (three) elements, i.e. from the element KPU, Bawaslu,
and The public character, intended for the DKPP to act and behave
independent. Considering the elements of the political party and the government not
there is another in membership or composition of the DKPP, according to the Court,
the request of the applicant for Article 109 of the paragraph (11) of the Act of 15/2011 was declared
contrary to the Article 22E paragraph (1) and paragraph (5) of UUD 1945 is not
reasoned. The intertime replacement mechanism remains necessary for
anticipating the possibility of a DKPP membership vacancy, which, if
not the intertime replacement will inhibit the implementation
of the DKPP tasks. Nevertheless, the intertime replacement based
on "the needs and considerations of each element", opening
is likely for the existing elements to make a withdrawal and
the replacement of his deputy at such DKPP. No obvious reason. It
so, although its chances are small, however it can remain impeded
the execution of DKPP tasks;
The court argues, Article 109 of the paragraph (11) of the Act of 15/2011 in relation
with its independent nature as set forth in Section 22E paragraph (5) of the Constitution of 1945,
must provide the certainty that the replacement of the intertime is conducted over
the consideration and request of the DKPP, and not solely over "the need
and the consideration of each element";
62
Based on such considerations, according to the Court, Article 109 of the paragraph (11) UU
15/2011 throughout the phrase, "based on the needs and considerations of each-
each element" is stated in conflict with Article 22E. verse (5) of the 1945 Constitution and
is declared to have no binding legal force.ulated in Article 1 of 22 Acts 15/2011 which states,
" The Election Organizing Honor Council, further abbreviated to the DKPP, is
the agency in charge of handling The Election Organizing ethics violation
and is a single function of the organizing function of the Election. " As one
the unity of the general election function, then according to the Court
the self-contained nature expressed in Article 22E paragraph (5) of the 1945 Constitution must also
underscore the formation of an honorary board;
The institutio f Wednesday four months of January of the year
two thousand twelve by the nine Justices of the Constitution, namely Moh. Mahfud MD,
as Chairman of the Members, Achmad Sodiki, M. Akil Mochtar, Hamdan
Zoelva, Maria Farida Indrati, Ahmad Fadlil Sumadi, Anwar Usman, Harjono, and
Muhammad Alim, respectively as Members and are spoken in. The hearing
Pleno is open to the public on this day as well, Wednesday the four-month of January
year two thousand twelve by the nine Judges of the Constitution, namely Moh. Mahfud
MD, as Chairperson of the Member, Achmad Sodiki, M. Akil Mochtar, Hamdan
66
Zoelva, Maria Farida Indrati, Ahmad Fadlil Sumadi, Anwar Usman, Harjono, and
Muhammad Alim, respectively as Member with accompanied by
Mardian Wibowo as Panitera Replacement, as well as being attended by the
The applicant/ruler, the Government or the representing, and the House of Representatives
The people or the representing.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd. td
Achmad Sodiki
ttd.
M. Akil Mochtar
ttd.
Hamdan Zoelva
ttd.
Maria Farida Indrati
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Harjono
ttd.
Muhammad alim
REPLACEMENT PANITERA,
ttd.
Mardian Wibowo
[4.3] The petitioner, the applicant Number 10, the applicant Number 15, is the applicant number 10, the applicant number 15, the applicant number 10, the applicant number 15, the applicant number 15, the applicant number 15 Applicant
Number 24, applicant Number 27, Applicant Number 37, applicant Number 60,
The applicant Number 62, the applicant Number 65, and the applicant Number 67 did not
have a legal position (legal standing) to submit
a request Quo;
63
[4.4] Provision for provision of the law;
[4.5] Request for legal reason for some.
Based on the Basic Law of the Republic of Indonesia Year
1945, Law Number 24 Year 2003 on the Constitutional Court
as amended by Law No. 8 of the Year 2011 on
The Changes to the Law No. 24 of 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia of the Year 2011 Number 70,
Additional Gazette Republic of Indonesia Number 5226), and Invite-
Invite Number 48 Of 2009 On The Power Of Justice (State Sheet
The Republic Of Indonesia In 2009 Number 157, Additional State Sheet
Republic Indonesia Number 5076);
5. AMAR RULING
Trial,
In Provision:
Rejected the applicant's provision request;
In the subject of a plea:
granting the Applicant's plea for a portion;
Declaring the Article 11 letters i and Article 85 letter i Act Number 15
Year 2011 on Organizing General Election (State Sheet
Republic of Indonesia Year 2011 Number 101 Additional Sheet Country
Repulik Indonesia Number 5246), along phrase, " resigning from
a membership of the political party ... at a time register as a candidate "
at odds with the Constitution of the Republic of Indonesia
in 1945 as long as not being defined" at least in the term
time 5 (five) year has resigned from membership political party
at the time of registering as a candidate ";
Declared Article 11 of the letter i and Article 85 letter i Act Number 15
Year 2011 on Organizing General Election (State Sheet
64
The Republic of Indonesia in 2011 number 101 additional sheet country
repulic Indonesia Number 5246), throughout the phrase, "withdrew from
a membership of the political party ... at the time of registering as a candidate" no
has a binding legal force as long as it is not defined "at least-
lack within the term 5 (five) years has resigned from
a membership of the political party at the time of registering as a candidate";
Declaring Article 109 verse (4) c, letter d, and paragraph (5) Act
Number 15 Year 2011 on Organizers Of The General Election (Sheet
State Of The Republic Of Indonesia Of 2011 Number 101 Additional Sheets
State Repulik Indonesia Number 5246) contrary to the Invite-
Invite the Basic State of the Republic of Indonesia in 1945;
Declaring Section 109 verses (4) c, letter d, and paragraph (5) of the Act
No. 15 Year 2011 on Organizing General Election (Sheet
State of the Republic of Indonesia 2011 Number 101 Additional Sheet
reputed state of Indonesia Indonesia Number 5246) has no legal force
binding;
Declared Article 109 paragraph (4) of the letter e Act No. 15 Year
2011 on the Organizing General Election (Republican Gazette
Indonesia of 2011 Number 101 Additional New Country Sheet
Indonesia Number 5246) of the section sentence "4 (four) persons
the public in terms of the number of political parties existing in the House of Representatives
odd or ... in terms of the number of political parties existing in the House
even numbers" contrary to the Act. State Basic
Republic of Indonesia Year 1945;
Declaring Article 109 of verse (4) letter e Act Number 15 Year
2011 on the Organizing General Election (Republican Gazette
Indonesia Year 2011 Number 101 Additional State Sheet repulic
Indonesia Number 5246) throughout the sentence section " 4 (four) character
society in terms of the number of political parties existing in the House of Representatives
odd or ... in terms of the number of political parties existing in the House
even "does not have a binding legal force, so that the number of political parties" does not have a "binding" law.
Article 109 of the paragraph (4) is required to read:
65
" DKPP as referred to in paragraph (1) consists of:
a. 1 (one) of the KPU elements;
b. 1 (one) person of the Bawaslu element;
e. 5 (5) people's public figures. "
Declared Article 109 paragraph (11) Act Number 15 Of 2011
about The Organizing Of The General Election (state Sheet Of The Republic
Indonesia In 2011 Number 101 Additional Reputed Country Sheet
Indonesia Number 5246) to the extent of the phrase "based on needs and
considerations of each of the elements" contrary to the Act
Basic State of the Republic of Indonesia in 1945;
Declaring Article 109 of paragraph (11) Act No. 15 of 2011
about the Election Organizer (Republican Gazette
Indonesia Year of the Year 2011 Number 101 Additional State Sheet Repulik
Indonesia Number 5246) throughout the phrase "based on needs and
each element's consideration" has no legal power
binding, so that Article 109 of the paragraph (11) is the following. Needs to be read,
"Any DKPP member of any element may be replaced intertime"
with applicable provisions ";
Order the loading of this verdict in the Republic News of the Republic
Indonesia as it is Should be;
Reject the supplicant for other than and the rest;
So it was decided in a Meeting of the Judges by
nine Constitutional Judges on the day o
