Key Benefits:
RULING Number 15 /PUU-IX/2011
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTION 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 About Political Parties against Invite-
Invite the Basic State of the Republic of Indonesia in 1945, which was submitted by:
[1.2] 1. Name: Regional Unity Party (PPD);
Address: Jalan Prof. Dr. Satrio C-4 Number 18, Jakarta
South 12940;
Referred as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Name: Party of the Moon Star (UN);
Address: Weekend Market KM 18 Number 1B
South Jakarta;
Referred to as -------------------------------------------------------------------- applicant II;
3. Name: Peace Party Prosperes (PDS);
Address: Jalan Let. Jend. S. Parman Number 6-G, Slipi,
West Jakarta;
Referred to as ----------------------------------------------------------------applicant III;
4. Name: Democratic Renewal Party (PDP);
Address: West Tebet Road In Raya Number 29, Jakarta
12810;
Called as ----------------------------------------------------------------applicant IV;
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5. Name: Employers and Workers ' Party (PPPI);
Address: Imam Bonjol Street, Number 44, Menteng, Jakarta
Center, 10310;
Referred to as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ Name: Patriot Party;
Address: Jalan Prof. Dr. Satrio C4, Number 18, Kuningan
Jakarta 12940;
Referred to as -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Name: National Party Fortress Kerakyatan Indonesia
(PNBK Indonesia);
Address: Penjernihan Road I, Number 50, Pejompongan,
Jakarta Central 10210;
Referred to be ------------------------------------------------------------------------------------------------------------------------------------------- Name: Pioneers Party;
Address: Eastern Pegangsaan Road; Number 17-A, Jakarta
Center;
Called as --------------------------------------------------------------------------Pemapplicant VIII;
9. Name: National Party of Indonesia Marhaenism;
Address: Greater Cilunar Road, Number 17, New Kebayoran,
South Jakarta 12170;
Called as ----------------------------------------------------------------------------------------------------------------------------------------applicant IX;
10. Name: New Indonesia Struggle Party;
Address: Wolter Monginsidi Road, 84-AE Number,
New Kebayoran Baru, South Jakarta;
Referred as ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Name of the Indonesian Democratic Enforcement Party (PPDI);
Address: Jalan Let. Jend. Soeprapto Number 22F,
Cempaka White, Central Jakarta;
Is referred to as ----------------------------------------------------------------applicant XI;
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12. Name: Party Works Concern Nation (PKPB);
Address: Cimandiri Street Number 30, Cikini, Menteng,
Central Jakarta;
Referred to as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ Name: Free Party;
Address: Jalan Mampang Prapatan XII, Number 6, Jakarta
South, 12790;
Referred to as ------------------------------------------------------Pemapplicant XIII;
14. Name: The Indonesian Party Prosperes (PIS);
Address: Wisma Dawn Block C, VI Floor, Number 52, Road
Door One-Gelora bung karno, Senayan,
South Jakarta;
Called as -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Special on December 23, 2011, Special Power Letters 230/DPP/2/1432, dated January 17, 2011, and Letter
Power Special Number 230/DPP/2/1432, Special Power Letters 51 /SK-DPP/PP/1 -11, dated January 17, 2011, gives
power to H. Suhardi Somomoeljono, S.H., Bambang Suroso, S.H., M.H., Didi
Supriyanto, S.H., M.H., Ratna Ester L. Tobing, S.H., M.M., Eben Ezer Naibaho,
S.H., M. Hum., Citra Ramadhana Prayitno, S.H., Jefri Palijama, S.H., Romolus
Sihombing, S.H., N. Horas Siagian, SH., Roder Nababan, S.H., Irma, S.H.,
Makmun Halim, S.H., D. Parlin Sitorus, S.H., M.S., Yunico Syahrir, S.H., Hendrik, Hendrik, Hendrik
Assa, S.H., Astro Girsang, S.H., Syamsunar, S.H., Rolas Sitindjak, S.H.,
Widjanarko, S.H., Abdurrahman Tardjo, S.H., Panhar Makowi, S.H., Wetmen
Sinaga, S.H., M. Kum., Ir. Togar M. Nero Simanjuntak, S.H., Hulman Panjaitan,
S.H., M.H., Davy Helkiah, S.H., Stefanus Roy Rening, S.H., M.H., M. Jaya Butar-
Butar, S.H., M.H., Firm Uli Silalahi, S.H., Mikael Marut, S.H., Viani Octavianus,
S.H., Roni Hutajulu, S.H., Effendi Simanjuntak, S.H., Michael Wangge, S.H.,
Noorsyam S. Noor, S.H., S.E., M.M., and Jeanne T. Poegoeh, S.H., all of it
advocate and Legal Advisor incorporated in the Forum Advocacy Team
Unity National, whose address is on Prof. DR Road. Satrio C-4 Number 18, Casablanca, South Jakarta, either together or individually act
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for and on behalf of the power giver;
Next is referred to as ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hearing the Applicant;
Checking the evidence from the applicant;
Hearing expert adverts 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 conclusions of the Petitioners;
2. SITTING LAWSUIT
[2.1] A draw that the petitioners have applied for the
then list in the Constitutional Court (subsequently called
The Court of Justice) on Tuesday 8 February 2011. with
registration case Number 15 /PUU-IX/2011, which has been corrected and received in
The Court of Justice on March 10, 2011, outlines the things
as follows:
I. CONSTITUTION OF THE CONSTITUTIONAL COURT
1. The applicant pleads for the Constistusi Court (further called
MK) conducting testing of Section 51 of the paragraph (1) and the Procedure Test of Procedure
Creation and Format Act of 2011 on
The change of the Law No. 2008 About the Political Party.
2. As provided in Section 24C paragraph (1) of the Constitution of 1945 juncto Article 10 of the paragraph
(1) letter 9 (a) of the Law No. 24 of 2003 on the Court
Constitution (subsequently abbreviated as the MK Act), one of the Court's authority
The Constitution is conducting Act Testing of the Constitution of 1945.
Section 24C paragraph (1) UUD 1945 among others stated:
"Court Constitution authorities prosecute at first and last level
The final verdict to test the legislation against the Invite-
Invite Basic,....."
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Further, Article 10 of the paragraph (1) letter (a) of the Act of MK among others states:
"The Constitutional Court of authority is to prosecute at the first and last level
The verdict is final for:
a) Testing the legislation against the Country Basic Law
Republic of Indonesia Year 1945,..... "
3. In addition, Article 7 of the Law Number 10 of the Year 2004 on
The formation of the Act-Invitation Regulation governs that
hierarchical rank UUD 1945 is higher than the Act, by hence any provision The Act should not be contradictory to
The Constitution of 1945. If there is a provision in the contrary Act
with the Constitution of 1945, then the provisions may be mobled to be tested
through the mechanism of testing the Act.
4. Based on those items above, then MK is authorized to check
and cut the Application Testing Request.
II. LEGAL STANDING (LEGAL STANDING) THE PETITIONER
5. The Petitioners are Political Parties that have been legal and
have followed the elections held at least in the year
2009 thus the Political Parties (the Applicants) are
the party lawful under the Law No. 2 of 2008 on
The Political Party, which is real aggrieved by the enactment of Article 51 paragraph (1) Act Number of the Year 2011 on Changes to the Act No. 2 of 2008 About the Political Party.
Adanya the phrase " with an obligation to make adjustments according to Invite-
Invite this by following verification ", in Section 51 of the paragraph (1) Invite-
Invite Number of 2011 about Changes to the 2008 Act No. 2 about Political Party cause para The applicant is unable to perform the role and function of his political party is one of which is the agenda for the election of the democratic election of 2014 as
the implementation of the sovereignty of the people, as well as the rights of the rights of the people. parties
politics (Applicants) over freedom of union and assembly, so
poses a loss to constitutional rights.
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6. Article 51 of the paragraph (1) of the Act of MK states: "The applicant is a party that considers the right and/or authority
the constitutional is harmed by the enactment of the Act, i.e. a. Individual citizen of Indonesia;
b. The unity of indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Union of Unity
Reublik Indonesia set in undang-Undang;
c. Public or private legal entities; or
d. State Agency.
Next explanation of Article 51 of the paragraph (1) of the Act of MK states: "In question" constitutional right "is the rights set
in the Constitution of the Republic of Indonesia in 1945".
7. Under the above provisions, there are two terms that must be met
to test whether the applicant has a legal standing in the case
testing the Act. The first term is the qualification to act
as the Applicant as described in Article 51 of the paragraph (1) Act
MK. The second term is that the rights and/or constitutional authority of the
The applicant is harmed by the enactment of an Act.
8. As delivered above, the applicant is the political parties
valid under applicable law as well as the legal entity
under the terms governed by Law No. 2 of the Year 2008
about Political parties have also participated in a democratic party with
following the elections held in 2009, so that the "body of the public law" as referred to Article 51 of the paragraph (1) MK Act. Therefore, the applicant has a qualification as a testing applicant
Act.
9. Further, Article 51 of the Article 51 paragraph (1) of the Act No. 2 of 2011 on
The Political Party states:
" Political parties that have been passed as legal entities under the Invite-
Invite Number 2 Year 2008 about the political party stay recognized for its existence
with the obligation to make adjustments according to this Act
by following verification. The existence of a phrase in the sentence "with an obligation
makes adjustments according to this Act by following
verification" in Section 51 of the paragraph (1) Act No. 2 of 2011
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about the Political Party provides the provision that if a party
politics despite the legal and legal entity if it fails/does not qualify
the verification process then the result of The law does not have a constitutional right as an Election participant. Political parties that do not qualify for verification
which entered the election in 2009 and have managed to have members of the DPRD
spread throughout the County/City or the Province, rights
constitutionality. does not have any legal certainty.
10. Factually or de facto, currently there are 38 (thirty-eight) parties
the legal and legal entity actively running its activities
has the administrator and member composed of the party administrators, members of the party.
party, party sympathizers spread across the RI region. Provision
Article 51 of the paragraph (1) Act No. 2 of 2011 on Changes to Act No. 2 of 2008 instead of elicits
justice, profit and legal certainty, but instead of infliting
injustice, absence of benefits and uncertainty of law. Thus the rights-
the right of the petitioners as a political party that will and/or not
are verified for assurances and protection of justice and
the legal certainty becomes broken.
11. All of the above descriptions indicate that the applicant is a party that
has a constitutional loss as a result of Article a quo,
so that it has a legal standing (legal standing) to act as
The applicant is in the application of testing this Act.
III. OPENING STATEMENT
12. The political will (political will) of the ruling party in
Indonesia is the People's Representative Council (DPR) together with
The Government, in particular in terms of the creation of the Political Party Act
(Parpol Act) always change, barely any ahead of the Election
The Act on Parpol and Elections is constantly revamped, this reality
is very unorthodox by other countries, it shows
that In addition to the quality of the laws, it is not weighted on the other side of the para
The Act and the Draft Act, whether inexecutive and legislative levels are highly likely to have an agenda
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is hidden, although the agenda is difficult to predict.
13. The spirit of the claimants/forming Act in the Invite-
Invite Number 2 Year 2011 on Changes To The Act
The Number 2 Year 2008 About the Political Party feels clear to the attempt that
veiled to Complicate the order/proses/procedur/mechanism of rights
constitutional long political party and the formation of a new political party.
Based on the results of the study that rests on the prospective legal state that
democratic, then the Act No. 2 Year 2011 on Changes
under Law No. 2 of 2008 About The Political Party
contradictory philosophy values for the main purpose of the change an
The old Act becomes the new Act. Contrary to
with Human Rights, clash with legal norms,
contrary to the values of freedom in unions, assembly and
issuing opinions as well as the social norms present in the State
Republic of the Republic of Indonesia.
14. With the 2011 Act No. 2 of
Changes to the Law No. 2 of 2008 About the Political Party
generated legal uncertainty and the unwarranted implementation of which
expected/mandated by the Act (cannot
be executed). The idea of the need for an attempt to implement
The simplification of political parties should not be contrary to the mandate
The Basic Law of 1945 Article 1 paragraph (2) that sovereignty in the hands
People, so that the intention and effort and the Covert engineering that is flictable
on behalf of the People, and with the pattern of using the law as a tool
power (a tool as social engineering) is contrary to the philosophy
implementation of the real Democracy.
15. Political parties as a means and a democratic infrastructure have yet to provide
a guarantee for its functioning as a people's aspiration. As a result of not
the main political party is the people implemented
in the subject matter and the function of the Political Party, elicits apatism People in
where from the 1999 elections, 2004, and 2009. there
a tendency the number of voters who did not use the option rights increased
increased, even the last data in the 2009 Elections reached 40%
(forty-one hundred) more. Experience empiris in development
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per-political party in Indonesia proves that, in the final decade
New Order Government, there is a political party known as the majority
single (largest) slogan " the people are the votes of the party '
not being able to realize the people' s aspirations properly.
16. Aware that, the constitutional right of citizens in channelling
the aspirations need to be granted protection and legal certainty as well as
understand that vox populi vox dei the voice of the people is the voice of God, at
where the Political Party as a means and infrastructure of the people's aspiration
gets its place and position as it should be. Based on the
thing above, the petitioners are pleading with the Majlis
The Constitutional Judge to examine, test, and cut the case of a quo
as well as fair.
IV. ARTICLE 51 OF THE PARAGRAPH (1) OF THE LAW NUMBER 2 IN 2011
A. The phrase "with the obligation to make adjustments according to this Act with
following verification" in Article 51 of the paragraph (1) provides uncertainty
the law.
17. Each person is entitled to the recognition, assurance, protection, and certainty
fair law as well as the same treatment before the law.
18. While Article 51 of the paragraph (1) Act No. 2 of the Year 2011
states, " the political parties that have been passed as legal entities
under the Law No. 2 of 2008 on the political party remain
recognized its existence. with the obligation to make adjustments according to
This Act by following verification ".
19. The provisions of Article 51 of the paragraph (1) of the Parpol Act above restrict the work of the
The applicant as a legal and legal entity, still
required to conform to the new Act with
the way it will be performed verification of after complete re-verification within the specified time limit, then The applicant as a legal entity under the applicable positive law, will be granted
the legality of the return as a legal entity, the provisions of Article 51
paragraph (1) is contrary to with legal considerations of the Court
Constitution (MK) in ruling Number 3/PUU-VII/2009 on page 130 of which
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clearly and firmly has stated as follows, " ..... with the policy
ET listed in The previous Election Act of 1999 and Law No. 12 of 2003, which threatening Parpol ' s existence in its chances of following the next election, the policy of PT listed in Article 202 paragraph (1) Act No. 10 of 2008 which
reads: " ..... The Political Party of Participant in the previous Election can be deceived. Election participant in the next election ..... ", Description of Article 8 of the paragraph (2) reads, "..... referred to the previous Election is the start of the 2009 elections and selaniutnva .....", further and specific in legal consideration of the Constitutional Court (MK) in the ruling Number
3/PUU-VI12009 on page 129 confirmed as below ..... " According to the Court, the Law of PT in Article 202 (1) Act No. 10 of 2008 ........, and every Parpol Election participant is treated the same and gets the same opportunity through competition democratically in the Election ........". Based on the thought as contemplated
The Constitutional Court law is truly juridically, automatically
Parpol Election participants of 2009 are not required to follow verification.
Process verification as referred to in the 2011 2 Year Act of the Political Party, resulting in a loss to the constitutional right of the Applicant as a candidate for the 2014 Election, the right of recognition, guarantee, protection, and fair legal certainty
for the Petitioners as a Political Party Election participant in 2014
as guaranteed by Article 28D paragraph (1) of the 1945 Constitution.
20. The constitutional loss described in Paragraph 23 and paragraph 24 above
actually did not only overwrite the petitioners but it also overran
all the Political Parties of the 2009 Election participants, therefore elusive
with Common sense (common sense) and, difficult to digest either through asas
normative or through other principles a creator institution
The Act as an extension of the Political Party does not side
on the importance of the term The political party in front of him. Philosophy
Change of Act aims to fix/improve quality
product of the Act that provides guarantee of legal certainty, will
not realized even the creation of Law Number 2 Year 2011
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about the Political Party poses a controversy.
21. The inconstitutionality of the phrase "with the obligation to make adjustments according to this Act by following verification" in Section 51 of the paragraph (1) of the Parpol Act a quo, contrary to the principle and purpose of it is made
a rule/law (rule of law). The goal of the law is to realize
justice (justice), humanitarian expediency (utility), and legal certainty (legal certainty), as well as giving protection of the rights constitutional (rechtum). Thus if any provision may incur
injustice, disuse, and uncertainty, as well as the absence of
protection of constitutional rights, then the provisions are lost
the substance (spirit), as it is not compatible with the purpose of the law.
22. As a result of the phrase a quo, the principal task and function of the Political Party cannot be
implemented because there is no guarantee of legal certainty. The principal task and function of the Political Party as the means and infrastructure of acting democracies are not maximized, as a result the major problems faced by the nation and the country are ignored and there is depoliticization Political Party.
23. Legal uncertainty and real-real injustice have been created
by the phrase "with the obligation to make adjustments according to Invite-
Invite this by following verification" in Section 51 of the paragraph (1) Parpol Act
a quo That results in the inconstitutionality of the phrase a quo.
24. From the overall description above, it is evident that the provisions of Article 51 paragraph (1)
Act Number 2 of the Year of 2011 on Political Parties, along
concerns the phrase " with the obligation to make adjustments according to
This Act by following verification " is contradictory with Article 28D of paragraph (1) of the 1945 Constitution, so it is very reasonable to be stated
by the Assembly of Judges of the Constitutional Court, it has no legal force
binding with any effect The law.
B. The phrase "with the obligation to make an adjustment according to Invite-
Invite this by following verification" in Article 51 of the paragraph (1)
impede the rights of freedom of union and assembly. 25. Article 28 of the 1945 Constitution states, "Independence is union and assembly,
issuing the mind with oral and written and so forth is set
with the Act". On the other hand Article 51 paragraph (1) of the Act
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a quo states, " a political party that has been passed as a legal entity
under the Law No. 2 of 2008 on the Political Party remains
is recognized with its existence. obligation of making adjustments according to
this Act by following verification ", causing the right to union
and convening of the applicants guaranteed by Article 28 of the Constitution of 1945
as quoted above becomes aggrieved.
26. The provisions of Article 51 of the paragraph (1) of the Parpol a quo, have usurpsed
the constitutional right of the applicant's freedom to conduct the activity
anticipation to prepare for the 2014 Election. The verification process
as an order of the a quo of highly potentially eliminates
the rights of union independence and gathered from the petitioners. Related
with Section 51 of the paragraph (1) which determines the existence of a 2 ½ (two
half) time limit in verifying (paragraph 1a) not built through
the research process and does not have the foundation and legal logic
support that argument.
27. If the restriction on the conduct of verification and or the command of verification
it itself is disabled will not be detractable
at all guarantee of recognition as well as the respect of the rights and freedoms
the person others on the one hand but will restore the guarantee of recognition as well as
respect for the rights and freedoms of the Applicant on the other. With
the provisions of the Parpol a quo order order to conduct verification
with relatively short and unmeasured time restrictions, resulting
those provisions deprive it of/ the rights and freedoms
the constitution of the petitioners. If any are associated with justification
the rights restrictions by Section 28J paragraph (2) of the 1945 Constitution, the provisions with the obligation
make adjustments according to this Act by following verification
in Section 51 of the paragraph (1) The Parpol a quo Act remains irrelevant.
28. From the overall description of the above real description that the provisions of Article 51 paragraph (1) Invite-
Invite Parpol a quo at all concerns the phrase "with the obligation to do
the adjustments according to this Act by following verification", is
contrary to the 1945 Constitution, in particular Article 28 of the 1945 Constitution, so that
reasoned to be declared by the Assembly of Judges the Constitutional Court does not have
the power of the law is binding with all due to its laws.
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C. The phrase "with the obligation to make adjustments according to the Act
by following verification" in Section 51 of the paragraph (1) of the Act
Number 2 of the Year 2011 on Parpol is blocking the right of the applicant to
advance itself. To build a society. 29. Article 28C paragraph (2) of the Constitution of 1945 states, "every man is entitled to advance
himself in champing his rights collectively to build
the people, the nation, and his country". On the other side Article 51 of the paragraph (1)
The Parpol a quo states, " the political party passed
as a legal entity under the Law No. 2 of 2008 on
The Political Party remains. recognized its existence with the obligation to make adjustments according to this Act by following verification ". As a subject of law
The applicant (parties) reserves the right to advance itself in
fight for its rights collectively to build the masyarkat, nation and
the country by running the wheel of a political party as a His vessel. However
the rights were blocked because the petitioners were shackled with
a compelling phrase to conduct verification. 30. The petitioner loses its constitutional right to realize the task
the principal and as a free and independent Political Party to follow
the democratic party in the 2014 Election.
31. As such of the entire description above, it is proven that the provisions of Article 51
paragraph (1) of the Parpol a quo of the following concerns about the phrase " with
the obligation to make adjustments according to this Act with
following verification " has been contrary to Article 28C paragraph (2) of the 1945 Constitution,
so it is very reasonable to be declared by the Assembly of Justice of the Court
The Constitution, it has no legal power to bind with any effect
The law.
D. The phrase "with the obligation to make an adjustment according to Invite-
Invite this by following verification" in Section 51 of the paragraph (1) Invite-
Invite Number 2 of the Year of 2011 on Parpol is contrary to
The Establishment of Regulation -Invitations. 32. Article 22A of the 1945 Constitution, textually it reads as follows: "Terms
further on the way of formation The Act is governed by the Act". The Act regulates the formation
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laws as defined in Section 22A
Constitution of 1945, have been further set up in the Number 10 Year Act
2004 on the Tata Way Establishment Act The norm that
is important has been described in some sections among others: Chapter. I Section 1 (1), paragraph (9), paragraph (11); Article 2; Article 3 of the paragraph (1); Article (4); Chapter II. Article 5
(a, c, d, e); Section 6 of the paragraph (1); Chapter III of Section 8 of the Law Number 10 Year
2004. Law Number 2 of the Year 2011 on Top Change
Act No. 2 of 2008 About real-real Political Parties had
not compatible with the norms of mainly principles of formation
laws that has been set up and determined by Invite-
Invite Number 10 Year 2004 on the Establishment of a Perinvite Regulation-
Invitation.
33. Article 51 paragraph (1) Act No. 2 of 2011 on Political Parties
ignoring Pancasila which is the source of any legal source
state, ignoring UUD 1945 is the basic law in regulation
legislation, ignoring the establishment of an invite rule-
invitation based on the principle of establishment of the invite rule-
a good invitation includes: a. Clarity of purpose, b. Institutional/Organization
appropriate cofounder, c. Conformance between the type and the charge material, d.
It can be implemented, e. The wisdom and the usefulness, the f. Clarity
rumusan, g. Openness.
34. Note 37 points above, attributed to norms which
contained in Law Number 2 of the Year 2011 on change
over the 2008 Act No. 2 about Political Parties, has been proven
not appropriate with norms governed by Law Number 10
Year 2004 on the Establishment of the Perundang-Invitation Regulation, so
the entire description has been described in the material test request that
is done by the applicant can prove that Act
Number 2 of the Year 2011 on Top Change Act Number 2
In 2008 about Political Parties in opposition to Article 22A of the 1945 Constitution,
juncto Chapter. I Section 1 (1), paragraph (9), paragraph (11); Article 2; Article 3 of the paragraph (1);
Article (4); Chapter II. Article 5 of the paragraph (1); Section 6 of the paragraph (1); Chapter III of Section 8 of the Invite-
Invite Number 10 Year 2004.
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35. Article 51 paragraph (1) of the Act No. 2 of 2011 textually has
determined as follows: " Political parties which have been passed as body
laws under Law No. 2 of the Year of 2008 concerning Party
Politics remain recognized by its existence with the obligation to make adjustments
according to this Act by following verification ". What it means
by the Act on the understanding "remains recognized
its existence" is not described so as to cause contradictions
in thought and/or there have been conflicting disputes that
significant in the articles contained therein (contrario
interminis), if properly the applicant or the parties which have been body
the law under Law No. 2 of 2008 " remains recognized.
its existence " why the new a quo Act remains require
to do a reverification of ".
36. If Section 51 paragraph (1) of the Act No. 2 of 2011 on
Changes to the 2008 Act No. 2 About the political party,
forced to be exercised given the absence of clarity of concept,
clarity The formula, piqued, philosophical, can cause a loss
is constitutionally good for the applicant and for the other parties
others, as well as the potential for the massive chaos of politics
threatens the disintegration of the nation.
37. Legal fact based on points 40 above in the perspective of Administration Law
The state proves that there are legal issues behind it
so that the acrobatic passages arise are unorthodox.
in the formation of legislation. It is thus increasingly clear that
The a quo is not in sync with Law Number 10 of the Year
2004 on the Establishment of the Perundang-Invitation Ordinance.
38. With the phrase in the sentence "with the obligation of adjustment
according to this Act by following the verification" in Section 51 of the paragraph (1) the Parpol Act blocks the applicant to obtain the right
of certainty laws, as well as non-use and basil for, requirements
verification that among others has required a change in relation to
the establishment and the establishment of a legal
party in violation of the sovereignty of the law. from a party, given the related norms
that set about the change and the establishment of a party already
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The legal entity may be carried through the party's internal mechanism for example
through the national congress, the order of the Parpol Act a quo violates
asas kedayagunaan and incandity. The a quo Act clearly has
contrary to the 1945 Constitution Section 22A juncto Section 5 of the paragraph (1) Invite-
Invite Number 10 Year 2004 on the Tata Cara Formation Set-
Invitation, which textually reads as follows:
In the formation of the laws should be based on
the principle of the formation of good-invite legislation includes:
a. Clarity of purpose;
b. Appropriate institutional/Organization-forming organization;
c. Suitability between type and charge materials;
d. Can be performed;
e. The wisdom and usability;
f. The clarity of the formula;
g. Openness.
Thus from the overall description above, it is proven to be the provisions of Article 51 of the paragraph
(1) The Parpol a quo Act along concerns the phrase " with the obligation to make adjustments according to this Act by following verification " has been in conflict with Article 22A of the 1945 Constitution juncto Act Number 10
of 2004 on the Establishment of the Laws, so
is very reasonable to be declared by the Honorable Assembly of Judges Court
Constitution does not have the power of law binding with All due respect
its laws. V. PETITUM Based on the items described above and the evidence attached, with this
The petitioners implored the Constitutional Court of Justice please
give the verdict as follows:
1. Accept and grant the Applicant for the whole;
2. Declaring Article 51 paragraph (1) of the Act No. 2 of 2011 on Changes to the Law No. 2 of 2008 On Political Parties
contrary to the 1945 Constitution, in particular Section 28D paragraph (1), Article 28,
Article 28C paragraph (2), Article 22A therefore does not have the legal force
binding.
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3. Ordered a loading of the Constitutional Court's ruling on a
quo is contained in State News.
Or if the Constitutional Court of the Constitutional Court opts another, please the verdict
that is fair (ex aequo et bono.)
[2.2] weighed that in order to strengthen the controls, the petitioners have
submitted a letter of letter proof/writing that was given a Proof of P-1 to
Evidence P-26, as follows:
1. Proof P-1: Photocopy of Act No. 2 of 2011 on
Changes to the Number 2 Act 2008
About the Political Party;
2. Evidence P-2: Photocopy of the Constitution of the Republic of the Republic
Indonesia Year 1945;
3. Evidence P-3: Decree of the Constitutional Court of the Republic of Indonesia Number
3/PUU-VII/2009;
4. Evidence P-4: Photocopied Article 28D paragraph (1) Basic Law
The State of the Republic of Indonesia in 1945;
5. Evidence P-5: Photocopy Article 28 of the Constitution of the Republic of the Republic of the Republic
Indonesia in 1945;
6. Proof P-6: Photocopy Article 28C paragraph (2) Basic Law
Republic of Indonesia in 1945
7. Evidence P-7: Photocopy Article 22A of the State Basic Law
Republic of Indonesia in 1945;
8. Evidence P-8: Photocopy Chapter I, Section 2, Act Number 10 of the Year
2004 on the Establishment of the Invitation Regulation-
Invitation;
9. Evidence P-9: Photocopy Chapter II, Section 5, Act Number 10 of the Year
2004 on the Establishment of the Perundang Regulation-
Invitation;
10. Proof P-10: Photocopy Section 6 of the paragraph (1), Act Number 10
In 2004 on the Establishment of the Rule of Invitation-
Invitation;
11. Evidence P-11: Photocopy of Election Commission Decision Number
18
149 /SK/KPU/Year 2008, about Redemption and
The Draw of Election Participants Political Party Elections
General of the Year 2009 for Regional Unity Party, Number
Urut 12;
12. Evidence P-12: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Political Party Political Party Election Participant
General of the Year 2009 for Star Month Party, Number Urut
27;
13. Evidence P-13: Photocopy General Election Commission Number
149 /SK/KPU/2008, about Redemption and
Draw the Number of Political Parties Election Participant
General of the Year 2009 for Peace Party Prosperous, Number
Ordered 25;
14. Evidence P-14: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of Election Participants Political Parties Election
General of the Year 2009 for Democracy Reform Party,
No. Sequence 16;
15. Evidence P-15: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of Election Number Political Parties Election Participant
General of the Year 2009 for The Employers And Workers Party
Indonesia, Number 3;
16. Evidence P-16: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of Election Number Political Parties Election
General of the Year 2009 for Patriot Party, Number 30;
17. Evidence P-17: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Political Party Political Party Election
General of the Year 2009 for the Fortress National Party
Kerakyatan Indonesia, Number Urut 26;
18. Evidence P-18: Photocopy of Election Commission Decision Number
19
149 /SK/KPU/Year 2008, about Redemption and
The draw for the Political Party Political Party Election Participant
General of the Year 2009 for the Pioneers Party, Number Urut 22;
19. Evidence P-19: Photocopy General Election Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Political Party Political Party Election Participant
General of the Year 2009 for PNI Marhaenism Party, Number
Urut 15;
20. Evidence P-20: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Political Party Political Party Election Participant
General of the Year 2009 for the Indonesian Struggle Party
New, Order number 10;
21. Evidence P-21: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Political Party Political Party Election Participant
General of the Year 2009 for the Democratic Enforcement Party
Indonesia, Order Number 19;
22. Evidence P-22: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of Election Number Political Parties Election
General of the Year 2009 for the People's Care Works Party,
No. Sort 2;
23. Evidence P-23: Photocopy of the Electoral Commission Number
149 /SK/KPU/2008, about Redemption and
The Draw of the Election Participant Political Party
General of the Year 2009 for the Indonesian Party Prospere,
No. Sort 33;
24. Evidence P-24: Photocopy Of The Minister Of Justice And Fundamental Rights
Man, Number M-23.UM.06.08 Year 2003;
25. Proof P-25: Photocopy Article 51 paragraph (1) Act No. 2
In 2011 on Changes to the Act
No. 2 of 2008 on Political Parties;
26. Evidence P-26: Photocopy of the Ministry of Law and Human Rights, Number
20
AHU.HM.02.03-01, about Notice, date 9
March 2011.
In addition, the petitioners also submitted an expert, namely Prof. Yusril Ihza Mahendra, who had been heard under oath in the April 25, 2011 trial, which in the first place described as
following:
That registering a political party is the same as registering an
limited liability. Where the status of the legal entity is first
to form a political party and then be poured in on the deed
made by a general official is, notary. Such proceedings are in place until
at present, where after fulfilling the terms of the term, the party's design
politics as a legal entity.
That in the provisions of Act No. 2 of 2008, before
The Ministry of Law and Human Rights legitimates a political party into a body
the law, then verifying it first, whether the political party is
meets the terms to be passed as a legal entity. So,
The verification concerns the terms of the establishment of a political party. And
if it has been qualified, it is the political party
as a legal entity.
That the legal entity or rechtpersoon (Dutch) truly
is a legal entity (legal entity). That is abstract but
is considered to be human who has rights, obligations, etc.
so forth. Just like a human being, when a legal entity is born
then it is made by birth certificate. Similarly, if the legal entity is dead
it has a death certificate or a death certificate. Thus, Minister
Justice who issued or published a recognition letter
The political party as a legal entity is an act that
enmaleg, an act that is once issued finished.
That a political party was established in front of a notary and verified whether to have been
qualified or not. It was later released as
a political party's legal entity was born until the time of the political party
Dismissed. What ' s more to remember that the dissolution of the political party inside
21
The Basic Law is affirmed to be the authority of the Court
The Constitution.
That the Political Party Act confirms that there are only three
the terms of the political party are dissolved, that is if (1) the political party
dissolves itself of its own decision; (2) the political party it combines
with another party or be dissolved by the Constitutional Court; and (3)
The political party is asked for the Constitutional Court to dissolve, where only
the government is the only institution that can apply to
Constitutional Court that a party has violated the Act
Party Politics, such as subscribe to a marxis leninist, just
then the Constitutional Court is authorized to dissolve.
That the foundation of thought that the Government is not granted authority to
dissolve the party politics as good, because the ruling party would
tend to outnumber his political opponents. Now the model that
is taken is to dissolve the political parties through the legislation
made by the Government with the People's Representative Council which
smooth in Act No. 2 of 2011 there is a certain way to
dissolve a political party beyond being determined by the Constitution, that
dissolving the political party is entirely the authority of the Court
Constitution.
That provisions in Article 51 of the paragraph (1) Act Number
2 Years 2011 on Changes to the Law No. 2 Year 2008
About the Political Party, contain many obscurity of meaning, meaning, and
The philosophical formulation.
That Article 51 verse (1) states, "The political party that has been passed
as a legal entity under the Law No. 2 of 2008
about the Political Party remains recognized as its existence." However, what it means
with its existence itself is not clear if it includes the existence of de
jure as a rechtpersoon or a de facto existence that is considered
there is, but legally, It's considered nothing. The formulation of the words "fixed
admites its existence" in Article 51 of the paragraph (1) is very obscure, with
an obligation to make an adjustment, i.e. by performing verification.
That in the presence of the existence of a political party, then changed to de facto
to be de jure as rechtpersoon by doing verification.
22
Whereas verification is formulated, as the terms for issuer
the authorization as a legal entity and that action is the action
enmaleg, which means complete. One time. It is impossible if
a person is issued twice the birth certificate. Thus, as the political party
stands, it has first been verified to meet the terms, and
is issued a recognition as a legal entity. This is called
enmaleg, where the process of being a political party has been completed.
That if looking at the enaccation of Law Number 5 of 1995
about the Limited Perseroan, it does not cause any Limited liability
based on de boke van kuphandel Book of Invite-
Invite of Trade-KUHD) it only recognized its existence de
facto, but also de jure. Similarly, when the invitation-
Invite Number 40 Year 2007 on the Limited Perseroan, then all
Limited liability companies established under the Law No. 5
Year 1995 remain recognized as being rechtpersoon, not only
there is de facto. Although there is an order, which states that with
the enactment of Act No. 5 of 1995, then the Limited Perseroan
formed under the Criminal Code, must conform to the new.
Begitupula with the Act The number 40 of 2007 stated
that the Limited Perseroan formed under Act Number
5 Year 1995 must conform to the new one. However, which
referred to in this case is not the terms of the establishment of a Perseroan
Limited, but other things are set up.
That in principle the change of law states that if the law
changes, then must benefit the concerned party. Thus,
if the political party is already standing by verification and already issued
its legal entity status, but if then the legislation changes, then
in principle, the enforced provision must be that
benefiting the political party, not by its disadvantages.
That obscurity also appears in the provisions of Article 51 of the paragraph (1) b which
states that, " In terms of political parties as referred to in verse
(1) does not meet the verification conditions, the existence of such political parties remains
recognized as Member of the DPR, DPRD Province, and DPRD
District/City Election Results of 2014. " Then Section 51C
23
states, "Members of the House remain recognized for their existence." Thus,
Act No. 2 of 2011 implicitly dissolved the party
politics beyond what is governed by the constitution and beyond the authority
The Constitutional Court as the only institution authorized to
dissolve a political party.
That impunity contained in Article 1B, after its enactment
Act Number 2 of 2011, can be seen where all parties
existing politics and have been governing law under the Act
No. 2 of 2008, considered de facto there, however not de jure.
That if the political party does not meet the verification conditions, its implications are not
further explained. Its provisions simply stated that the existence of
the party remained recognized until the 2014 Election. That is, after the 2014 election,
there is no clarity on what the status of the party is. Its provisions here
are unclear, but it is clear that the party already
disbanding itself.
That the Constitution of the Constitution of 1945 does not give authority to
The Government and the House as a Legislation to dissolve
and the existence of a political party through legislation that
is their authority to make it.
That is in fact Article 51 of the Law No. 2 of 2011
contrary, in particular with Article 28D paragraph (1) of the 1945 Constitution is about
recognition A guarantee, a protection, and a fair legal certainty. Although
Article 28D paragraph (1) textually states that, "Everyone is entitled
upon recognition." And given that the political party is a body
the law, that is a rechtpersoon, then the political party should be considered
as 'every person' intended in Article 28D paragraph (1).
[2.3] A draw that against the applicant's request, the Government
gives opening statement in the April 25, 2011 trial, and
a written statement dated April 28, 2011 which was accepted by the PANITERAAN
The Constitutional Court on May 30, 2011 stated that as described
below.
24
Opening Statement
Related to the legal position of the applicant and with
Pay attention to the description of the explanation of the applicant's law, in
the request Tentative and disconnected law testing
together with the subject of the applicant's request, it is then related to
the legal position of the applicant, the Government cees fully to
the Constitutional Court for the consider and assess it.
Against the provisions of Article 51 of the paragraph (1) Act No. 2 of the Year 2011
on Changes to the Act No. 2 of 2008 About the Party
Politics (Act 2/2011), which states the political party that has been passed as
a legal vessel under the Number Act 2 Years 2008 about the Party
Politics (Act 2/2008), still recognized its existence with the obligation to do
the adjustments according to this Act by following verification.
Those provisions are above by the Applicant to be considered conflicting
with the provisions of Article 22A, Article 27 paragraph (1), Article 28, Section 28C paragraph (2) and
Article 28D paragraph (1) of the 1945 Constitution, which states,
Article 22A "Further provisions on the manner of the formation of legislation are set
with legislation".
Article 27 paragraph (1) "All nationals concurrent in law and
governments and authorities uphold the law and government with no
there is a kiss".
Article 28 "The independence of the union and convening issuing thoughts with orally and
writing and so forth are set with legislation".
Article 28C paragraph (1) "Everyone has the right to develop yourself through fulfillment of the need
essentially, entitled to obtain an education and benefit from science
knowledge and technology, art and culture, for the welfare of mankind".
Article 28D paragraph (1)
25
"Each person is entitled to a recognition, protection, and certainty
fair law and equal treatment before the law".
The important things in the 2/2011 Act are:
1. It is related to the spread, founder, and business of political parties. Legislation
2/2011 provides affirmation that a political party was established and formed by
at least 30 Indonesian nationals who have been 21 years old or
are married from each province. In addition, the law also
affirm that political parties must have affairs in any
province and at least 75% of the number of municipal counties in the provinces
is concerned, and at least 50% of the total. the number of subdistricts in the district
the city concerned. Thus, any political party should
meet its affairs in 33 provinces, 373 municipal counties, and 3,311
districts.
Those arrangements are indeed heavy for certain political parties let alone the party
newly formed politics. But such arrangements are intended and
for the following reasons:
A political party is a national organization, hence its founder
is national and its management is spread across the province.
exists in Indonesia.
b For the creation of national integrity.
c As a form of manifestation-the embodiment of the reinforcement of independence
the institutional political party itself.
2. Arrangements on political party accounts.
To be a legal platform, political parties must have an upper account
the name of the political party. Walapun in Act 2/2011 was not specified in magnitude
the number. The provision was based on the thought that the political party
did not belong to the financially powerful financiers, but belonged to the members
who had the same ideology that was in turn the political party.
is intended as a tool to fight for that ideology.
3. Regulation of the financial accountability of the political party.
2/2011 Act requires every political party to deliver a report
accountability acceptance and financial expenditures sourced
of the aid fund State Revenue and State Shopping (APBN) budget and
26
Regional Revenue and Shopping Budget (APBD) delivered to
The Financial Examiner Agency (BPK) was regularly one year for
audited and slowest one month after budget year ends.
These provisions are intended to be financial transparency and
financial accountability on a regular basis and can be accounted for, which
in turn may benefit the development political party
itself.
4.
Act 2/2011 affirm that the resolution of the internal disputes of the political party
is carried out by a political party court or another designation constituted
by the political party, and if it is the internal dispute resolution is not
reached then it is done through a state court. This provision is intended
in order for a political party to have a greater chance and opportunity
in order for the choice of resolution of disputes within a single political party to be performed
in deliberation, the mufakat is internally. In addition, there are
several other things that are set up in the Political Party Act of the Year
2011, for example, the presence of any political party conducting education
politics to its members aiming at For the creation of the atonement
regarding the four pillars of the nation and the country, Pancasila, UUD 1945,
Bhinneka Tunggal Ika, and State of the Republic of Indonesia.
The provisions of Article 51 of the paragraph (1) Act 2/2011 are laid out in Chapter 20. about
The Takeover Provisions that contain adjustments to the rules of the invite-
an existing invitation, at a time when new laws start
apply. For the purpose of allowing such laws to be able to
run smoothly and do not cause any legal problems. At any time
the laws are declared to be in effect, any relationship
existing laws or legal action occurring both before, at the time,
and after those laws are declared applicable, subject
on the provisions of the new laws.
Therefore, according to the government, the existence of the provisions of Article 51 of the paragraph (1) Act
2/2011, is precisely made to guarantee legal certainty about the existence of the whole
The governing political party which remains recognized its existence with
27
the obligation to perform adjustments as determined by the invite-
invite a quo.
One of those forms of adjustment is the existence of an obligation
against all political parties that have been governing the law, numbering 74
political parties, to conduct reverification on the Ministry of Law and Rights
Human Rights. Thus, according to the Government is a logical consequence
due to a change in the law mandating the entire political party
which has been legally required to make adjustments as
determined by the Act. 2/2011. Whereas against a new political party is valid
and the provisions of Act 2/2011.
Further according to the government, if there is no a quo provision then
the will of the simple multiparty in Indonesia as
desired by law-forming, which has also been in line with
some Constitutional Court rulings, which are related to electoral threshold
and parliamentary threshold would be difficult can be realized.
In addition, according to the government, the a quo provision not in order
reducing or blocking the wishes of each person including the
The applicant to form or continue the existence of a political party that has been
governing such laws, as warranted by the Constitution. Also, it is the embodiment of equal and equal treatment (equal
treatment) of both the old political parties that have been governing law and
against the new political party that has not yet been formed. law.
From that description above, according to the government provisions Article 51 paragraph (1)
Act 2/2011 has been in line with the constitutional mandate and hence it is not
contrary to the Constitution of 1945 thus not harming the rights and or
The constitutional authority of the petitioners. Also, according to the government, the provision
a quo has been clear and not a multitapma, hence it does not need to be stated
as a provision conditionally constitutional (constitutional
conditional).
Based on the explanation and the argument above, the Government
implores the Court to give the following verdict:
1. rejected the applicant ' s testing entirely or at least at least
declaring the applicant testing the applicant is not acceptable;
28
2. received a full government description;
3. acknowledge the provisions of Article 51 of the paragraph (1) of the Number 2 Year Act
2011 on the Changes to the Law No. 2 Year 2008 concerning
The Political Party does not conflict with the provisions of Article 22A, Article 27 paragraph
(1), Article 28, Article 28D paragraph (1), and Article 29 paragraph (2) of the Act
Basic State of the Republic of Indonesia in 1945.
If the Court opts another, please a wise and equitable verdict-
be fair.
Government Written Description
On Legal Position (Legal Standing) The applicant
In accordance with the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003
about the Constitutional Court, Stating that the applicant is a party that
considers the right and/or its constitutional authority to be harmed by the expiring
legislation, that is:
a individual of Indonesian citizens;
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 State of the Republic of Indonesia which
is set in an undrased invitation;
c public or private legal entities; or
d state agencies
The above provisions are expressly set forth in its explanation, that the
"constitutional right" is the rights set forth in the Country Basic Law
The Republic of Indonesia in 1945, then it first had to explain and
attest:
a Kualiflation in the plea a quo as referred to in Article 51
paragraph (1) Act No. 24 of 2003 on the Constitutional Court;
b Rights and/or its constitutional authority in the The qualifications referred to which
are considered to have been harmed by the enactment of the legislation being tested;
c The rights and/or constitutional authority of the applicant as a result
would have to be the laws that are being treated as testing.
More on the Constitutional Court of Indonesia has given the definition and limitation
cumulative total of constitutional rights and/or constitutional authority arising
29
due to the enactment of a law under Article 51 of the paragraph (1) Invite-
Invite Number 24 of 2003 On the Constitutional Court (vide Putermination
Number 006 /PUUIII/2005 and the verdict next), must meet 5
(five) terms namely:
a constitutional right granted by the Law
Basic State of the Republic of Indonesia in 1945;
b that the constitutional right of the applicant is considered by the applicant has
harmed by a legislation tested;
c that The applicant's constitutional loss in question is specific
(special) and actual or at least any potential that according to reasoning
reasonable can be certain to occur;
d there is a causal relationship with (causal verband) between the loss and
the expiring legislation to be tested;
e it is possible that with the granted of the request then
the constitutional loss postured will not or no lags occur.
Top of those things above, then according to the Government needs to be questioned
the interests of the Applicant are appropriate as a plhak to assume
the rights and/or its constitutional authority are harmed by the enactment of the provisions
Article 51 of the paragraph (1) of the Political Party Act of 2011.
Also whether there is a constitutional loss the intended applicant is
specific (special) and actual or at least a potential that according to
reasonable reasoning can be certain to occur, and whether or not there is a relationship of cause
as a result of (causal verband) between the loss and the enactment of the legislation
is asked to be tested.
According to the Government, the applicant's plea is unclear and unfocused
(obscuur libels), primarily in parsing/explaining and
contaminating it has arised constitutional rights and/or constitutional authority
for the enactment of the a quo, as it is in fact the applicant
not in an aggrieved state/position, minus or at any time is obstructed-
obstructed the existence of the Political Party itself, meaning Political Party which is political that
The petitioners lead in a legal fixed position and can carry out
the entire activity of the party.
Yet it is thus related to the Legal standing (legal standing) the petitioner,
30
and with regard to the description of the explanation of the legal position of the
The applicant in the tentative bill testing application and
is disconnected along with the subject of the application The applicant, then in connection with
the legal position of the applicant, the Government cees fully to
The Constitutional Court to consider and judge whether or not the
applicant has a legal standing (legal standing) or not, over the enactment
provisions of Article 51 of the paragraph (1) Act Such Political Parties, as
determined by Article 51 of the paragraph (1) of the Law No. 24 of 2003
on the Constitutional Court and on the basis of the Court's ruling
The Constitution of the Republic (vide of the Termination of the Constitutional Court). No. 006 /PUUIII/2005 and Ruling Number
11 /PUU-V/2007)
The Government Explanation Of The 2011 2-year Act For Political Parties
Against the provisions of Article 51 of the paragraph (1) of the Party Act Politics, which
declares:
"The political party that has been passed as a legal entity under Invite-
Invite Number 2 Year 2008 about the Political Party remains recognized to its existence
with the obligation to make adjustments according to this Act with
follow verify ".
The provisions above by the applicant are considered to be contrary to
the provisions of Section 22A, Section 27 paragraph (1), Pasai 28, Section 28C paragraph (2) and Section 28D
paragraph (1) of the Basic Law of the Republic of Indonesia In 1945, which
stated:
Article 22A: " Advanced provisions on how to set up a law
set with legislation ".
Article 27 paragraph (1):"All citizens simultaneously in the law
and the government and the mandatory Upholding the law and government with no
there is no exception ".
Article 28:"The independence of the union and gathering, issuing a mind with
oral and written and so are set with legislation ".
Article 28C paragraph (1):" Everyone has the right to self-develop through fulfillment
The basic needs, the right to education and the benefit of the science darts
31
knowledge and technology, arts and culture, for the welfare of the human race ".
Section 28D paragraph (1):"Everyone is entitled to recognition, assurance, protection, and
certainty fair law as well as the same perlbooks before the law ".
Before the Government excuss an explanation of the norm charge material that
is being honed to be tested by the petitioners, the Government can convey things
that is important in the Political Party Act of 2011, the following is the following:
1. With regard to the spread of the founder and the political establishment of the Political Party.
The Political Party Act of 2011 provides affirm that the party
politics was established and formed by at least 30 (thirty) citizens
Indonesia which has been aged 21 (twenty-one) years or already married dart
every Province. In addition, the law also affirm that the political party
must have affairs in every province and at least 75% (seven
twenty-one hundred) of the total number of districts/cities in the province
is concerned, and at least 50% (fifty-one hundred) of the amount
sub-districts in the counties/cities concerned (thus each
The Political Party must meet its affairs in 33 Provinces; 373 counties/kota;
and 3311 sub-districts.
If paying attention to the settings above, it is perceived to be very
weight for the newly formed Political Party, but such arrangement
is intended for and is the reason for the following:
The political party is national organization, hence its founder
is national anyway and its concern is spread across the existing provinces
in Indonesia;
For the creation of national integrity;
As a form of embodiment the guarantee of strengthening the Party ' s institutional independence
The Politics itself;
2. Settings about the Political Party account
In addition, to be a legal entity then the Political Party must have
an account on behalf of the Political Party (although in the Political Party Act
The year 2011 is not specified The number of people. The provision was based on
the idea that a political party does not belong to a strong financier
financially, but it belongs to the people/its members who have in common
32
ideology, which in turn the Political Party was intended as a tool
to fight for that ideology.
3. The Political Party Finance accountability Act
The Political Party Act of 2011 requires every Political Party to
to include the account of the accountability and expense account
of the financial are sourced from the Revenue and Shopping Budget assistance fund
State (APBN) and Regional Revenue and Shopping Budget (APBD)
delivered to the Financial Examiner Agency (BPK) periodically 1 (one)
year once for audited and slowest 1 (one) months after year
The budget expires.
These provisions are intended to be financial transparency and
financial accountability on a regular basis and can be accounted for, which
in turn may benefit the development of that Political Party
On your own.
4. In the form of the Political Party Court.
The Political Party Act of 2011 affirm that the settlement
the internal strife of the Political Party is carried out by a political party assembly
or another designation. by political partals, and if the settlement
internal disputes are not well-capical then it is done through the Court
The country. This provision is intended to allow the Political Party to have a chance and
a chance that is as big as the decision to resolve disputes in
one Political Party is done in a process of internal mufakat.
In addition to There is still another set of things that are set in
The Political Party Act of 2011, for example, there is a must
Political party conducts political education to its members, which
aims. For the creation of the four pillars of the nation and
Pancasila, UUD 1945, Bhineka Single Ika and Unity State
Republic of Indonesia; understanding of the rights and obligations of citizens
Indonesia in building ethics and political culture, etc.
In addition to such matters above, the Government may convey an explanation
as follows:
That the provisions of Article 51 of the paragraph (1) Political Party Act are laid in
33
The XX Chapter on Takeover Provisions contains adjustments to
existing laws at the time of the invite-
rulethe new invitation comes into effect, with the goal of In order for such laws
to be uneventable and do not cause legal problems, and
at a time when a law is declared to be applicable, any
legal relationship or action laws that occur balk before, at
at the time, and after the rule The negotiations were declared in effect,
subject to the new terms of the negotiations.
Therefore according to the Government, the existence of the provisions of Article 51 of the paragraph (1) Invite-
Invite the Political Party of 2011 was instead made to be Ensuring that there is a
legal certainty about the existence of any of the governing Political Parties
the law that remains recognized in existence with the obligation to perform
the adjustments as determined by the a Quo.
One of those forms of adjustment is the existence of an obligation against
the entire governing political party (currently numbering 74 Parties
Politics) to re-verify the Ministry of Law and Human Rights
Humans. This is the case by the Government as a Iogis consequence because
there has been a change in the law that mandates the entire Political Party
which has been legally obligated to make adjustments as
determined by The Political Party Act of 2011. As for
The new Political Party applies terms and conditions under the Party Act
Politics of the Year.
Further according to the Government, if there is no a quo provision, then
will embody multy party simple in Indonesia as
is desired by a law-forming that has also been in line with
some Constitutional Court rulings kalt with electoral threshold
and The parliamentary threshold would be difficult to manifest.
Other than that according to the Government, the a quo provision is not in order to reduce
or prevent any person including the applicant to
form or continue the existence of the governing Political Party.
The law, as guaranteed by the constitution, also its provisions
represents the same and equal treatment of (equal treatment) either
against the old Political Party, which has been legal or is not equal to that of the law. against the Party
34
New non-legal politics.
Of the description above, according to the Government provisions Article 51 paragraph (1)
The Political Party Act of 2011 has been in line with the mandate. constitution
and hence not contrary to the Country Basic Law
Republic of Indonesia of 1945, nor does it prejudice the rights and/or
the constitutional authority of the Petitioners. Alga according to the Government provisions a
quo has been clear and is not a multitapma, hence no need to be stated
as a provision conditionally constitutional (constitutional
conditional).
Conclusion
Based on the explanation and the argument above, the Government pleads
to the Chairman/Assembly of the Constitutional Court of the Republic of Indonesia
who inspected, disconnected and prosecuted "The Number 2 Year 2011" on Changes to the Law No. 2 Year 2008
about the Political Party against the Constitution of the Republic of Indonesia
In 1945, it could provide a ruling as follows:
1. Rejecting the applicant 's testing request was entirely or at no-
not to state the request for the applicant' s testing could not be accepted
(niet ontvankelijk verklaard);
2. Accept the Government Description as a whole;
3. Stating the provisions of Article 51 paragraph (1) of Act No. 2 of 2011
on the Change of the Act No. 2 of 2008 About the Party
Politics does not conflict with the provisions of Article 22A, Article 27 paragraph (1), Section
28, Article 28C paragraph (2) and Article 28D paragraph (1) of the Basic Law
Republic of Indonesia in 1945.
However, if the Court argues otherwise, please a ruling
wise and in-fair (ex aequo et bono).
[2.4] Draw that against the applicant, the Board
The People's Representative provides a written statement in June 2011, which
specifies the following:
The rights and/or the Constitutional authority that It Is Considered That The Petitioners Have Been Harmed By The Enactment Of Law Number 2 Of 2011
35
The applicant in the plea a quo, posits that the right
its constitution has been harmed by the enactment of Article 51 of the paragraph (1) Act
Number 2 of 2011 is as following:
1. According to the Applicant Provision Article 51 paragraph (1) Act No. 2
The year 2011 is considered to have limited the work of the applicant as the party
the legal and legal entity, since the political party is still required to
adjust to the new Act by way of being done
re-verification within the specified time limit, and next will
be granted the legality of return as the legal party. This is according to
The applicant of such provisions is considered to be contrary to consideration
the law of the Constitutional Court in Decree Number 3/PUU-VII/2009.
2. The applicant assumes that the provisions of Article 51 of the paragraph (1) require
the governing political party for reverification, it has
incur injustice and legal uncertainty that in turn can be
incur losses to the constitutional rights of the Applicant Itself, and
hence the provision is considered contrary to the provisions of Article 22A,
Article 27 paragraph (1), Article 28, Section 28C paragraph (2) and Section 28D paragraph (1) 1945;
The Parliament of the Republic of Indonesia
Against the wishes of the Applicants as described in the a
quo, DPR conveyations as follows:
1. Legal standing (Legal Standing)
Qualifying the applicant as a party has been set up
in the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003 on
Constitutional Court (further abbreviated to the Constitutional Law
Constitution), which states that " The applicant is a party
assuming the rights and/or its constitutional authority be harmed by
the enactment of the Act, That is:
a individual of the Indonesian national;
b the unity of indigenous law society as long as it is alive and appropriate
with the development of the People's Republic of the Republic and the principles of the Republic of the Republic
Indonesia that is set in Undang-Undang;
c public legal entity or Private; or
36
d state agencies "
The rights and/or constitutional authority referred to the provisions of Article 51
paragraph (1), are expressly provided in its explanation, that " in question
with "constitutional right" is the rights set up in the Act
Basic State of the Republic of Indonesia Year 1945." Conditions The explanation of the Article
51 verses (1) this affirm, that only the rights explicit set
in the State Basic Law of the Republic of Indonesia Year 1945 only
which includes "constitutional rights".
Therefore, according to the Constitutional Court Act, in order to
a person or a party may be accepted as the applicant who
has a legal standing (legal standing) in the testing plea
Act against the Constitution of the Republic of Indonesia
In 1945, then first must explain and prove:
a Qualifiers as the petitioners in the a quo
as contemplated. in Article 51 of the paragraph (1) of the Law Number
24 of 2003 on the Constitutional Court;
b The right and/or its constitutional authority as referred to
in "The explanation of Article 51 of the paragraph 51 (1)" is considered to have been harmed by
The enactment of the Undang;
Regarding the parameters of constitutional losses, the Court The Constitution has
provided the understanding and limitations on constitutional losses that
arising from the enactment of an Act must meet 5 (five)
terms (vide Verdict Case Number 006/PUU-111/2005 and Perkara Number
011 /PUU-V/2007) is as follows:
a right and/or the constitutional authority of the Applicant who
provided by the State Basic Law of the Republic of Indonesia Year
1945;
b that the rights and/or constitutional authority of the applicant
are considered by the The applicant has been harmed by an Act
which is tested;
c that the rights and/or constitutional authority of the Applicant
referred to is specific (special) and actual or at least
is potential Which according to reasonable reasoning can be confirmed.
37
will occur;
d there is a causal relationship (causal verband) between the loss and
the enactment of the testing Act;
e is the possibility that with the It is granted a request that
the loss and/or the constitutional authority postured will not or
no longer occur.
If the five terms are not met by the applicant in
the test case The a quo Act, then the petitioners do not have
the qualifications of legal position (legal standing) as the applicant.
According to the House of Representatives the applicant in his request is unclear and concrete
in expounding the termination of the rights and/or constitutional authority
over the enactment of the a . As such, in fact the
The applicant is now not in an aggrieved state, minus or
impeded as the political party still governing law remains;
Against the legal position (legal) standing) that, the House submitted
fully to the Chairman/Assembly of the Supreme Constitutional Court for
consider and assess whether the applicant has a position
law (legal standing) or not as provided by Article 51 of the paragraph (1)
Act on the Court Constitution and based on the Decree
Constitutional Court of Perkara Number 006 /PUU-III/2005 and Perkara Number 01
1/PUU-V/2007.
2. 2011 No. 2 Act testing on Change of the Act No. 2 of 2008 On Political Parties
Against the application of the Act No. 2 Act 2011
filed by the applicant, the House of Representatives said description as
following:
1. That the House of Representatives views under the a quo Act, the Political Party
is a pillar of democracy needs to be laid out and refined to realize
a democratic political system in order to support the effective presidential system.
Political arrangement and refinement is directed at two main things
to form a patterized or systemic political party's attitude
to form a political culture that supports the basic principles of the system
38
democracy; and maximizing the function of the Political Party against the state nor
the function of the Political Party against the people. Attempts to strengthen and
establish a presidential system, conducted on four things:
a accommodate the creation of a simple multiparty system;
b encourages the creation of a democratic party and the government of the United States. accountable;
c accommodates the formation of a democratic party and
accountable; and
d encourage the strengthening of the base and the party structure at the party level.
2. That the provisions of the applicant ' s testing are
the transition provisions. In connection with this, the House of Representatives view that
the transitional provisions of the statutory side of the law are
an adjustment to the existing laws on
under the laws of the law. Just starting to apply. Its purpose to
fills the legal void for the regulation of the negotiations
to go smoothly and not to cause any legal problems. Provision
The switch is indispensed given at the time of the perinvite rule-
The invitation is declared to be in effect, then any existing legal relationship
or the legal action that occurs either before, at the time, or After
the new laws are stated to be effective, must
be subject to the provisions of the new laws. Similarly
regarding the Political Party, with the change to v Number 2 of the Year
2008 on Political Parties with Act No. 2 of 2011
on Change of the Act No. 2 of 2008 About Party
Politics needs to be set about the existence of a political party that has been passed
as a legal entity under Act No. 2 of the Year 2008.
Therefore, according to the House of Representatives the existence of Article 51 of the paragraph (1) Act No. 2 of the Year
2011 was made to ensure that there was a legal certainty about
the existence of all the Political Parties that have been established by the law remains recognized
its existence with the obligation to make adjustments
as determined by the Act a quo.
3. That the House of Representatives view one form of adjustment is
an obligation against all the political parties of the hokum (currently
numbering 74 political parties) to reverify the Ministry
39
Law and human rights. Thus, according to the House of Representatives, it is a logical consequence because
there has been a change in the law that mandates the entire political party
that the legal entity is obliged to make adjustments as determined
Act No. 2 of the Year 2011. Further according to the DPR, if not
there is a a quo provision, then to realize multy party simple in
Indonesia as desired by the legislation and
in line with some of the rulings The Constitutional Court related electoral
threshold nor parliamentary threshold would be difficult to be realized.
4. That the House of Representatives view the provisions of Article Act a quo not
reducing or blocking the wishes of any person including
the applicant to form or continue the existence of the party
the politics that has been Legal entities, as are also guaranteed by the Constitution
1945, and are equal and equal treatment embodiment (equal
treatment) of both the old political party that has been under the law
and against the party. New politics that haven't been legal. That
according to the DPR under arrangement as contained in Article
51 paragraph (1) of the a quo Act, all political parties that have been passed
as a legal entity under the Act No. 2 of 2008
certainly must conform to the No. 2 Act of 2011
including the applicant. This is to ensure that the political parties
which are already under the Law No. 2
The year 2008 has been subject to or following provisions regarding the requirements
political parties as set out in Article 2, Article 3, and Section 4
Act No. 2 of 2011. On the basis that it is necessary
administrative verification of the established political party
as a legal entity under the Law No. 2 of 2008
to meet the requirements specified in the Act
No. 2 of 2011;
5. That the DPR does not agree with the presumption of the applicant who
states that the members of the DPRD of the Parpol election results of 2009 that
spread across the county/city or province did not have
legal certainty. Since the DPR Member, Provincial Council, and the DPRD
district/city of the Political Party who did not qualify for verification remain recognized
40
its existence as a member, the Provincial DPRD, and the county/city DPRD
until the end of its membership period as set out in Section 51 of the paragraph
(1) letter c Act Number 2 Year 2011.
6. That according to the House of Representatives, Article 51 of the paragraph (1) Act Number
2 Years 2011 has been in line with the mandate of the constitution and not
in conflict with the Constitution of 1945, and does not prejudice the rights
and/or constitutional authority of the Petitioner. According to the DPR
the a quo provision has been clear and is not a multitaper, so that
needs to be expressed as a conditionally
constitutional provision. conditional).
Based on the descriptions above, the House argued the provision
Article 51 of the paragraph No. 2 of 2011 has warranted any
legal certainty and by remaining recognition of the existence of the Parpol though
does not meet the verification requirements up to a specified time limit
in order Avoiding the legal issues that would arise, so it has been
in line with Article 28D of paragraph (1) of the 1945 Constitution.
Based on that explanation and argument above, the House pleads
to the Constitutional Court of the Republic of Indonesia that checks, cut
and prosecute Perkara a quo, may provide a ruling as follows:
a Stating that the applicant does not have a legal position
(legal standing);
b Declared the Act No. 2 Act 2011
was rejected for the whole or at least stated a plea
testing of Act No. 2 of the Year 2011 was unacceptable (niet
ontvankelijk verklaard);
c Declares the Representative of the House received in its entirety;
d Declared the provisions of Article 51 of the paragraph (1) Act Number 2 of the Year
2011 on Changes to the Act No. 2 of 2008
About the Political Party does not conflict with Article 28D of paragraph (1) of the Constitution
In 1945;
e Declared the provisions of Article 51 of the paragraph (1) Act No. 2 of the Year
2011 on Changes to the Act No. 2 of 2008
on the political party, the political party remains a binding legal force.
41
[2.5] weighed that the petitioners had submitted a conclusion
it is dated 29 April 2011 which was accepted in the Court of Justice in
the May 2, 2011 which is at its fixed point. with its foundation;
[2.6] 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 unitary one
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the a quo plea is to
test Section 51 of the paragraph (1) of the Act No. 2 of 2011 on
The Changes to the Number 2 Year Act 2008 about the Political Party
(Gazette of the Republic of Indonesia in 2011 No. 8, Supplement
Page of the Republic of Indonesia No. 5189), which subsequently called the Act
2/2011, against the Constitution of the Republic of Indonesia Indonesia Year 1945
(next called UUD 1945);
[3.2] Balanced That before considering the subject of a request,
The Constitutional Court (later called the Court) first would
consider:
a. Court Authority to check, 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 48/2009), one of the powers
42
Constitutional Court is prosecuting at the first and last level that
the verdict is final to test the Act against the Act
Basic;
[3.4] In a draw that the applicant's plea is to test
the constitutionality of the norm Article 51 paragraph (1) Act 2/2011 against the Constitution of 1945, which
becomes one of the authority of the Court, so that the Court
is authorized. to examine, prosecute, and cut off the a quo;
Legal Occupation (Legal Standing) para Pemapplicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act and
The explanation, which may apply for testing the Act
against the Constitution of 1945 was them. which considers the rights and/or authority
its constitutionality given by the 1945 Constitution is harmed by the enactment of a
Act, i.e.:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The name of the supplicant is: "
. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the required Act
testing;
[3.6] The Court has 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
43
constitutionally referred to Article 51 paragraph (1) The MK bill must meet
five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the testing Act;
c such constitutional losses must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be confirmed
will occur;
d. A causal relationship (causal verband) between the intended loss
and the expiring of the testing Act;
e. It is possible that with the application of the request then
constitutional losses such as the postured will not or no longer occur;
[3.7] Draw that the petitioners are the political parties that have been
legal entity under the Law No. 2 of 2008
about the Political Party (subsequently called Act 2/2008) and has followed the Election
held in 2009 at the bottom of the list of
constitutional rights set out in the 1945 Constitution, i.e.
Article 28: " The independence of unions and assembly, issuing thoughts with
oral and writing and so forth are set with the legislation ".
Article 28C paragraph (2):"Everyone has the right to advance itself in
champing his right collectively to build society, nation
and his country ".
Article 28D paragraph (1):"Everyone is entitled to recognition, guarantee, protection,
and fair legal certainty as well as the same treatment before the law ".
According to the Constitutional Applicants it has been harmed by
the enactment of the provisions of Article 51 paragraph (1) Act 2/2011 which states:
" The political party that has been passed as a legal entity under Invite-
Invite Number 2 Year 2008 on the Political party remains recognized for its existence
44
with the obligation to make adjustments according to this Act with
following verification ".
[3.8] Draw that according to the applicant with the provisions of section a
quo, the phrase "with the obligation to make adjustments according to this legislation
by following verification", is very detrial Petitioners for the reason-
the reason for the following:
That the applicant is unable to run the role and function
as the political party that one of them is the agenda to follow the party
Election democracy of 2014 as the implementation of the sovereignty of the people,
because if a political party may have been legal and legal
if it fails/does not qualify for verification then as a result of its law
has a constitutional right to be an Election participant;
That the phrase a quo has limited the applicant's work as an
valid and legal entity as the applicant is still required to
adjust to the new Act (Act 2/2011) which is
verified based on new terms;
That the a quo phrase has seized the constitutional rights of the para The applicant is
the freedom of activities in anticipation and preparing
to follow the 2014 Election;
That the political party as a platform to advance and fight
the rights collectively in the building society, nation and country
being blocked because the petitioners are shackled in the existence of the phrase
"with the obligation to make adjustments according to this legislation
by following verification", [vide Article 51 paragraph (1) Act 2/2011];
[3.9] Balanced That based on The applicant ' s control is above,
according to the Court, the applicant in the a quo fulfils
qualifications as a legal entity which may be harmed by its constitutional rights by
the enactment of Article 51 of the paragraph (1) Act 2/2011, Therefore, the petitioners have
legal standing (legal standing) to apply a quo;
45
[3.10] Stated that by the case the court is checking,
prosecuting, and severing the application a quo and the petitioners have
legal standing (legal standing), next the court will
consider the subject of the request;
Pancan Court
Subject to
[3.11] weighing that the Applicant postulate Article 51 of the paragraph (1) Act 2/
2011 contradictory to Article 28, Section 28C paragraph (2), and Article 28D paragraph (1)
Constitution of 1945. The petitioners are postulate in the presence of provisions
contained in Article 51 of the paragraph (1) Act 2/2011, as a political party that
has had a legal position as it complies with the procedure
the founding of the party Politics as required by the provisions of the Act
in advance, it has been harmed by its constitutional rights. Loss
The constitutional result is caused by a new provision requiring
to the applicant to follow the verification in a period of time
at least two and a half years prior to the voting day
2014 general election. Such verification obligations as
are defined in Section 51 of the paragraph (1a), paragraph (1b), and paragraph (1c) of the Act 2/2008
as amended by Law 2 /2011;
[3.12] Weighed That According To The Applicant of such provision have
elicits inequity, disuse, and legal uncertainty to
the petitioners. Article 51 of the paragraph 51 (1) of the Act 2/2011 is contrary to the positive values
for the primary purpose of an old Law being the Invite-
Invite new and contrary to human rights, values
freedoms unionists and the assembly and freedom of expression.
That idea of the need for political party simplification efforts
The petitioners should not be contrary to the mandate of Article 1 verse (2) UUD
1945 that sovereignty in the hands of the people so that the intention and effort and the engineering
veiled that is raging in the name of the people, and with the pattern of using
the law as a tool of power as well as contrary to the philosophy of execution
the real democracy. That according to the applicant of the verification process
as defined in Section 51 of the paragraph 51 paragraph (1) of the Act 2/2011 resulted in the
46
that although the applicant has been legal entity if not
passes in the verification process then as a result of the law does not have the right
constitutional as a participant general election.
That according to the applicant the existence of the phrase "remain recognized to its existence
with the obligation to make adjustments according to this Act with
following verification" is a phrase that is not clear meaning so that can
harm the petitioners.
[3.13] It is tied that against the dalil-dalil para The applicant of the Court
needs to convey consideration as follows:
Article 51 of the paragraph (1) Act 2/2008 before being amended with Act 2/2011
states that the Political Party which has been passed as a legal entity
under the Law No. 31 Year 2002 of the Political Party
remains recognized. its existence.
Article 41 Act 2 /2008 by Act 2/2011 does not change, i.e.
that the Political Party dissolves if: (a) dissolving itself of the decision
alone, (b) merging with other political parties, and (c)
dissolved by the Constitutional Court.
Article 8 paragraph (2) Act Number 10 of the Year 2008 about the election
General of the People's Representative Council, the Regional Representative Council, and
The Regional People's Representative Council (subsequently called Act 10/2008)
stated that " The Political Party of the Election participants in the previous elections
can be an Election participant in the next election ". Law 10/2008 on
promulgations were not intended to apply only to the Election
General of 2009 alone but intended as an Act that
applies to the elections of the next general election, evidently not
there was an article in Law 10/2008 stating that the Invite-
Invite a quo only came into effect in the 2009 general election only.
That does not mean that the bill is not
can performed changes if the Act makers are looking at
need to perform changes.
Section 315 Act 10/2008 stated, "The Political Party of Elections Year
2004 which obtained at least 3% (three perhundred) amounts
House seats or obtain at least 4% (four A hundred)
47
The number of provincial DPRD seats is at least at ½
(half) the total number of provinces of all Indonesia, or the maximum security-
the lack of 4% (four percents) the number of district/city DPRD seats
is spread at least ½ (half) the number of counties/cities
all Indonesia, it is designated as the Political Party Election Participant after
Election of 2004". That this Article is not related to the dissolution of
political parties, but in relation to the designation of political parties that
may contest the 2009 election.
Against a political party that does not meet the requirements of Article 315 Act
10/2008 does not conduct a dissolution but still opens
an opportunity for such a political party to contest the election
in 2009 by the way it is mentioned in Section 316 letters
a, the letter b, and the letter c Act 10/2008.
If there is a political party that does not qualify Article 315 of the Act
10/2008 and does not merge as intended
Article 316 letters a, letter b, and letter c Law 10/2008, with the
setting on Article 316 of the letter e Law 10/2008 is still open to the opportunity
for the political party to be eligible for the 2009 election with
terms as set forth in Section 316 of the letter e Law 10/2008
that is, meet the requirements of the Act. verification by KPU to be Party
Politics of the Election Participant as specified in the Act 10/2008. In
Article 8 of Law 10/2008 is set for Parpol terms to be able to follow the Election
i.e.:
a. the status of the legal entity in accordance with the Act on Party
Politics;
b. Two-thirds of the number of provinces;
c. has a multiplicity in 2/3 (two-thirds) of the number of counties/cities in
the province is concerned;
d. It includes at least 30% (thirty perhundred)
representation of women on the business of the central political party;
e. have members of at least 1,000 (a thousand) people or 1/1,000
(one thousand) of the population at any party management
the politics as referred to the letter b and the c-letter attested
with Member tag:
48
f. has an office fixed for business as in b
and letter c; and
g. submitted the name and image of the political party to the KPU.
[3.14] Draw that based on such things above is clear that
according to Act 2/2008 is not known dissolution of political parties other than those mentioned
in Article 41 of that Act and the Law 10/2008 also do not know
dissolution of the political party, but recognize the incorporation of the political party
as mentioned in Article 316 letters a, letter b, and letter c Act
10/2008, if a political party wants to follow the general election In 2009.
That against unqualified political parties as
set under Section 315 Act 10/2008, or not to travel the way as
determined Section 316 Act 10/2008, both Act 2/2008 and Act 10/2008 were not
establishes an end or dissolution of its status as the legal entity of the political party
it means that it still remains recognized as a legal entity.
The court argues that the setting of the party's legal body status
politics, either by Law 2/2008 and Law 10/2008, it has been appropriate and correct. By
since the political party is still recognized as a legal entity then the status of the body
the law must remain constitutional protection by Article
28C paragraph (2), Article 28D paragraph (1), and Article 28E paragraph (3) of the Constitution of the law. 1945.
The court agrees with the applicant that the existence of the phrase "remains
is recognized by its existence with the obligation to make adjustments to
This legislation follows the verification" Article 51 of the paragraph
(1) Act 2/2011 is uncertain as to which it is not clear. With the word
"its existence" in Article a quo raises the question of whether this
concerns the existence of a political party as a legal entity. The phrase "obligation
following verification" has a legal effect on the existence of the applicant
as a legal political party, which is whether the verification can be
directly affects the party's existence. Politics in this case
The applicant. That is, as the political party the petitioners will lose its status
its legal entity for not qualifying verification. The Court argued that the
would be in violation of legal certainty against the Applicants who
by the previous Act had secured its existence as a party
the political governing law. The Act makers should tell the difference
49
between the rules of the formation or establishment of a political party with rules about
terms charged to a political party for a political party
may contest the election general, as well as the provisions governing about
the Institutionation of the House. The establishment of the establishment or establishment of a political party is
a way to be done by citizens who will establish a party
politics, so that the established political party is gaining body status
the law. As for the terms of the political party to be able to follow the general election
is the terms defined by its own Act for the party
the political already governing law may be an election participant for
can put his deputy in a representative institution that should be achieved
through the general election. Regarding the provisions set about
the Institutionation of the DPR is also set in its own separate Act
set about the organizational arrangement, membership, order and mechanism
decision making, and So forth The Court argued that
provisions contained in Article 51 of Article 51 (1) Act 2/2011 mixed up
all three things.
According to the Court, the seat of the legal entity that has been owned
by the political party Must be a constitutional protection. Protection
which has been granted by Law 2/2008 and Law 10/2008 on the status of the body
The laws of the political party have been eliminated by Article 51 of the paragraph (1) Act 2/2011. Party
politics in the 1945 UUD system has a very important function because
Constitution of 1945 explicitly gives constitutional rights to political parties
[vide Article 6A paragraph (2), Article 8 paragraph (3), and Article 22E paragraph (3) UUD 1945].
The political party is thus not only a democratic infrastructure but
it is also already part of the democratic mechanism set in
UUD 1945. Therefore, the political party must obtain legal certainty
to ensure its constitutional rights including the Applicant as the party
the politics of which has been established as a legal entity. In the 1945 Constitution
it is stated that the President and Vice President are nominated by a political party or
a joint political party. Likewise, elections participants for members
DPR according to the 1945 Constitution were political parties that met the terms that
determined the Act. Under the provisions of Article 20 clause (2) of the 1945 Constitution
that the Act is made of mutual consent between the President and
the House, thus clearly how much the role of the political party is in the system
50
Constitution of UUD 1945. Such an important role can only be
by a cadre of good political parties which is the result of
the education of the political party concerned. A political party of course
takes time and a process that is not short for cadre
politics and so it is only possible that there is a guarantee of survival
of existence. The political parties that failed to sit in their deputies at the institution
representatives are not as well as merta losing their status as legal entities and fixed
having the constitutional right to participate in the next general election
with satisfy the specified requirements. If a political party is not
following the next general election, it does not make the political party
losing its status as the legal entity and the political party can
make more mature preparations. to follow the Election or perform
caderization. In this way, it will be guaranteed the right to union, gather,
and declare a opinion that belongs to a member of a political party.
The guarantee of the existence of a legal political party that
failed. put his deputy in a representative institution at a time
General election, will be spared the establishment of a political party at
any ahead of the Election implementation;
[3.15] Draw that based on the description as such above
the Court argued that Article 51 of the paragraph (1) Act 2/2011 violating the right
the constitutional of the applicant guaranteed by the Constitution of 1945 and therefore
Article a quo contradictory to the 1945 Constitution. In fact, Article 51
paragraph (1) Act 2/2011 contradictory to the 1945 Constitution with the consequences of not
has a binding legal force then will have immediate effect
to Article 51 of the verse (1a) that is unrelevance again existence of the phrase "Verify
The Political Party as referred to in paragraph (1)" and in Article 51 of the paragraph (1b)
that states, " In terms of the Political Party as referred to in paragraph (1)
not eligible for verification, the existence of such a political party remains recognized
until its reporting of House members, provincial DPRD, and district DPRD/city results
General Election of 2014", as well as Article 51 paragraph (1c) that states,
"Representative, provincial DPRD, and district DPRD/city of political parties
as referred to in paragraph (1b) remains recognized for its existence. as
51
DPR members, provincial DPRD, and DPRD county/city periods until the end of the period
Its approval", so that provision is not required anymore;
[3.16] Weighed That based on All of the legal considerations that
described above, the Court of the Court argued for the application of the applicant
reasoned according to the law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court is authorized to examine, prosecute, and disconnect
the plea a quo;
[4.2] Para The applicant has a legal position (legal standing) for
applying for a quo;
[4.3] Pleas for legal reason;
Based on the Constitution of the Republic of Indonesia Basic Law. Year
1945 and Law Number 24 of 2003 on the Court Constitution
(Sheet State Of The Republic Of Indonesia In 2003 Number 98, Additional
Sheet State Republic Of Indonesia Number 4316), as well as Act Number
48 Year 2009 on the Power of Justice (Republican Gazette)
Indonesia Year 2009 Number 157, Added Gazette Republic of the Republic
Indonesia Number 5076).
5. AMAR RULING
PROSECUTING,
STATES:
GRANTING THE APPLICANT ' s plea;
Article 51 of the paragraph (1), Section 51 of the paragraph (1a) of the phrase "Verify the Political Party
as referred to in paragraph (1)", Section 51 verses (1b), and Article 51 of the paragraph
(1c) Act No. 2 of 2011 on Changes to the Invite-
Invite Number 2 Year 2008 about the Political Party (State Sheet
52
The Republic of Indonesia of 2011 No. 8, the Additional Sheet of State
Republic of Indonesia No. 5189) in conflict with the Basic Law
The Republic of Indonesia in 1945;
Article 51 verses (1), Section 51 of the paragraph (1a) of the phrase "Verification of the Political Party
as referred to in paragraph (1)", Section 51 of the paragraph (1b), and Section 51 of the paragraph
(1c) Act No. 2 of the Year 2011 on Change of the Invite-
Invite No. 2 Year 2008 on Political Parties (State Sheet
Republic of Indonesia Year 2011) Number 8, Additional State Sheets
The Republic of Indonesia No. 5189) has no binding legal force;
Order the loading of this ruling in the Republic of Indonesia News
at least 30 days of work since The verdict is pronounced.
So it was decided in a Meeting of the Judges by
the nine Constitution Judges are Moh. Mahfud MD., as Chairman of the Union
Member, Achmad Sodiki, Muhammad Alim, Harjono, Maria Farida Indrati, Ahmad Fadlil Sumadi, Anwar Usman, Hamdan Zoelva, and M. Akil Mochtar, respectively-
each as Member, on Thursday the third. The month of June two thousand eleven, and spoken in the Plenary Session open to the public on the day
on Monday four months of July year two thousand eleven by the nine JudgesConstitution, i.e. Moh. Mahfud MD., as the Chief of the Members, Achmad Sodiki, Muhammad Alim, Harjono, Maria Farida Indrati, Ahmad Fadlil Sumadi, Anwar Usman, Hamdan Zoelva, and M. Akil Mochtar, respectively as
Members, accompanied by Saiful Anwar as a replacement Panitera, as well as attended by the Applicants, the Government or the representing, and the People's Representative Council or that represents.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
53
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Muhammad Alim
ttd.
Harjono
ttd.
Maria Farida Indrati
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Hamdan Zoelva
ttd.
M. Akil Mochtar
PANITERA REPLACEMENT,
ttd.
Saiful Anwar
