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Test The Material Constitutional Court No. 14/puu-Viii/2010 2010

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 14/PUU-VIII/2010 Tahun 2010

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tate and Head of Government so that

contrary to Article 28I paragraph (2) of the 1945 Constitution;

e. That by the above, the applicant pleads for Article 16

paragraph (1) of the Political Party Act, which does not dismiss the membership of an

member of the political party as soon as the members of the political party take hold of it

the post of the political party is not to be used. as the President and Vice President of the Republic of Indonesia for

is declared as contrary to the 1945 Constitution and does not have

a binding legal force;

a. that the constitutional right of the applicant has a relationship

due to the (causal verband) with a mohoned article

its tester to the Constitutional Court;

b. that if the applicant is granted, then the loss

the applicant ' s constitutional will not or may not happen again;

5

6. That thus the applicant's control over legal standing

should be declared acceptable, so the applicant has a position

the law to apply for testing the Act on

The Political Party a quo to the Constitutional Court.

The subject of a plea

7. That because the Constitutional Court is authorized to judge a quo

and the applicant has legal standing, then the Constitutional Court should

consider further the subject of the applicant's plea;

8. That the subject of the applicant is regarding the constitutionality

Article 16 of the paragraph (1) of the Political Party Act, which does not dismiss the membership

a member of the political party immediately upon my role as

the President and the Vice President of the Political Party. President of the Republic of Indonesia;

9. That Section 16 paragraph (1) of the Political Party Act submitted to be tested

materially by the Constitutional Court, contains the provision

in connection with the termination of the membership of a party member

politics;

10. That the applicant pleads to the Constitutional Court to test

Article 16 of the paragraph (1) of the Political Party Act, which does not dismiss membership

a member of the political party immediately upon my role as

President and Vice The President of the Republic of Indonesia as a provision

conditional inconstitutional (conditionally inconstitutional) that contradictory

with the Constitution of 1945 thus has no binding legal force;

11. That is to be considered by the Constitutional Court

The Constitution, whether the provisions in the Political Party Act as contained

in the section referred to by the applicant do not dismiss

membership of a member Political parties immediately upon my tenure

as President and Vice President of the Republic of Indonesia in conflict with

Constitution of 1945 provisions conditional inconstitutional conditionally

inconstitutional;

12. That under Article 1 of the paragraph (1) of Act No. 28 of 1999 on

The Clean and Free State of Corruption, Colusion and

Nepotism (sheet Of State of the Republic of Indonesia of 1999 Number 75,

6

The addition of the Republic of Indonesia State Sheet Number 3851, next

called the State Hosting Act) states: "In the Act

this is referred to: (1). Country organizers are State Officials

running executive, legislative, or judicial functions, and other officials

whose function and duties are related to the holding of the country

accordingly with applicable law provisions.";

13. That in accordance with Section 2 of the State Hosting Act states:

"The country's organisers include:

1. State officials at the State Supreme Institute;

2. State officials at the State High Institute;

3. Minister;

4. Governor;

5. Judge;

6. Other state officials in accordance with regulatory provisions

applicable laws; and

7. Other officials have strategic functions in relation to

state hosting in accordance with the provisions of the perinvite rules-

the applicable invitations. "

14. That in Section 5 of the Governing Law states "Any

the President and the Vice President of the Republic of Indonesia are obliged to:

1. recite an oath or promise in accordance with his or her religion before

keeping her in office;

2. willing to check his wealth before, during, and after taking office;

3. report and announces wealth before and after taking office;

4. does not commit to corruption, collusion, and nepotism;

5. executing tasks without differentiating tribal, religious, racial, and

groups;

6. executing a task with full sense of responsibility and not

performing despicable, selfless deeds for personal benefit,

family, cronies, and groups, and do not expect in return for

any form that is contrary to the provisions of the perinvite rule-

applicable invitations; and

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7. willing to be a witness in corruption, collusion, and nepotism and

in other cases in accordance with the provisions of the perinvite rule-

the applicable invitation. "

15. That the legal norm is contained in Article 5 of the paragraph (5) and paragraph (6)

The Act of the Law of the State is the principle of neutrality or non-partisan of

the state government elements which aim to always be free of influence

all group and political parties, are not discriminatory in giving

services to the public as well as avoiding a clash of interests

a President and Vice President of the Republic of Indonesia which is

part of the principles of good governance (good governance);

16. That the non-partisan legal norm is neutral and not discriminatory to

a President and Vice President of the Republic of Indonesia contained

in Article 5 of the paragraph (5) and paragraph (6) of the State Governing Act, also in tune

with Article 28 of the letter. Law No. 32 of 2004 on

Local Government (Indonesian Republic of Indonesia Year 2004

Number 125 and Additional Gazette of the Republic of Indonesia States No. 4437,

subsequently called the Act of Pemda) stated:

"The regional chief and deputy head of the area were banned: a. Make decisions that

specifically bl or potential

which according to reasonable reasoning can be certain,

due to the applicant as an individual citizen of Indonesia and

the Party members of the Movement Indonesia Raya (Evidence P-4) considers rights

its constitutionality was harmed when members of the current political party

held up as President and Vice President of the Republic

Indonesia, not dismissed as a member of the party. immediately upon my position

the post, it can be guaranteed a member of the party Such politics will always

protect and precede the interests of his political party than

with his duties as head of government, as well as not

able to be neutral or non-partisan free of charge. influence all

group and political parties, so this state is specific and actual

always potentially poses discrimination in its existence as

The President as Head of Sinciples

(good governance) that is aligned with a citizen's neutrality policy

an Indonesian state that is a banned civil servant to be

a member of the political party as referred to in Government Regulation

No. 37 2004 (Indonesian Republic of Indonesia Gazette 2004

Number 128 and Additional Gazette of the Republic of Indonesia Number 4440)

on the Prohibition of State Employees becoming members of the Political Party which

constitutes a provision of the provisions Article 3 of the Law Number 8

Year 1974 on the PoyPokok of the Workforce

Indonesia Year 1974 Number 55, Addition Of State Sheet Repiblik

Indonesia Number 3041) as amended by the Act

Number 43 Year 1999 (State Sheet of the Republic of Indonesia Year 1999)

Number 169, Additional Republic of Indonesia State Sheet Number 3890),

which in its position states that if civil servants as an element

state governments must be neutral from the influence of all groups and parties

politics, not discriminatory in giving service to the community,

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and is prohibited from being a member and/or caretaker of the political party

The General Explanation of the Act, among others is mentioned if

a civil servant who is a member and/or a poiitic party administrator. must

be dismissed as a civil servant, either with respect or not with

respect;

32. That in the culture of Indonesian society that is still strong adhering to the principle

paternalistic demands that the employer should be able to be able to be a model for

his subordinates, thus if the civil servant in the hierarchy

in office in the institutional state being subordinate to the alignment

the state, being sued to always be neutral from the influence of all groups

and the political party even if it violates those provisions by being

members and/or Poiitic party administrators should be dismissed as

civil servants, fine with respect or disrespect, then already

duly if the President and Vice President of the Republic of Indonesia are to

the top employer of the civil servant should also be dismissed his membership in

the political party that concerned, immediately upon my role as

the President and Vice President of the Republic of Indonesia and restored

its membership immediately after not taking up office as President

and Vice President of the Republic of Indonesia on The political party is concerned,

to achieve a fair state of affairs. able to realize aparatur

good governance (good governance);

33. That the neutrality norm of President and Vice President as one of the elements

state organizers are also aligned with the neutrality norm for judges

as one of the country's organizer elements it is forbidden to be

members and/or the political party administrator as affirmed in

Article 17 of the letter to the Constitutional Court which states: "Judges

The constitution is prohibited to be: b. Political party members; " and for

Judge in the Public Judicial environment applies provisions as

applies to civil servants in accordance with Section 14 paragraph (2) Act

No. 8 Year 2004 on Top Change Law Number 2

In 1986 of the General Judicial (Indonesian Republic Gazette

in 2004 Number 34, Additional Gazette of the Republic of Indonesia

No. 4379) stated, "To be appointed as a judge, must

15

The civil servant who is from a prospective judge as intended to be

paragraph (1)";

34. That the office of the President and Vice President of the Republic of Indonesia are

the highest political office on the executive functions in the Republic of the Republic of the Republic

Indonesia, at the height of the highest career and achievement for a

member political party; which puts a member of the political party that

originally as a political party politician to be a statesman and to be

belongs to the entire nation of Indonesia, thus a party member

politics must be terminated its membership immediately upon my position

as The President and Vice President of the Republic of Indonesia for having been

belongs to the entire Indonesian people;

35 That the legal norm is contained in Article 16 of the paragraph (1)

The Political Party Act reads: "Party Member political

dismissed his keanganese from the political party if:

a. died;

b. resigns in writing;

c. be a member of another political party; or

d. breaking the Army and ART. "

Is a legal norm attached to members of a political party not

constitutional along not meeting the terms of the conditions/circumstances that

also must be reached by such provision in order not to conflict with

the will of the constitution (conditionally unconstitutional);

36. That the Constitution authorizes Justice of the Court

The Constitution to seek and find the meaning and meaning contained

in the words of the Act in order not to conflict with the constitution,

throughout it aims to define and disconnect the truth and

justice in order to achieve a law enforcement nature:

a. In order to uphold the neutrality of the government's apparatus

the country of Indonesia thereby avoiding the attitude and actions that are

discriminatory in the community service by the President and

Vice President of the Republic of Indonesia;

16

b. Throughout the goal to bridge the gap between consciousness

the law as a result of societal change of society with the provisions

applicable law;

c. throughout the aim of closing the law-hole (loop Holes)

as an answer to the demands of the sense of wrineness and justice to fit

with the political and legal awareness evolving in the society

this adult;

37. That the Constitutional Court is authorized to extend the understanding

provisions of the Act on the dismissal of a membership of an

member of the political party so that it is not limited to: a. Died;

b. Resign in writing; c. Be a member of another political party; or

d. Violating AD and ART, by reaching out to the conditions/circumstances that

willed the Constitution of the Constitution of 1945 to allow the President and Vice President of the Republic

Indonesia has a neutrality of the influence of all groups and political parties

as well as not discriminatory in providing service to the community at

running its authority, i.e. by laying off membership

a member of the political party immediately upon my role as

President and Vice President Republic of Indonesia;

38. That the Constitutional Court is also authorized to flex or

avoid understanding the nature of the dismissal as

referred to in Article 16 paragraph (1) of the permanent Political Party Act

or settle into a An understanding of the dismissal in a given time

or temporarily limited to its role in office

as the President and Vice President of the Republic of Indonesia, without the result

a member of the political party it must move its membership

to the other political parties and automatically restored its membership

to the political party concerned immediately after not ruling it

his post as President and Vice President of the Republic of Indonesia;

39. That based on the description of the applicant pledging to the Court

The Constitution for the legal norm that reads: "Political party member

is dismissed from the political party if:

a. died;

b. resigning in writing;

17

c. be a member of another political party; or

d. breaking the Army and ART. "

Which is listed in Article 16 of the paragraph (1) Act No. 2 of 2008

about the Political Party (State of the Republic of Indonesia No. 2

in 2008, Additional Sheet of the Republic of Indonesia's Republic of Indonesia Number 4801)

as Conditional unconstitutional legal norm (conditionally

unconstitutional). The norm of the law is unconstitutional if not

full of conditions apply to members of the political party immediately upon my position

in office as President and Vice President of the Republic of Indonesia;

40. That by the request of the applicant, then the loss

constitutional as described above will not be or does not occur again,

due to the President and Vice President of the Republic of Indonesia which is

part of The Indonesian state government, really can

be neutral and free from the influence of all groups and political parties,

not discriminatory in providing services to the public and compulsory

stand up The interests of the entire Indonesian nation and all the people

Indonesia from this moment on until the coming days;

PETITUM

Based on the things described above and the attached evidence, for the sake of

justice for all Indonesian people, with this the applicant pledging to

the Assembly Judges of the Constitutional Court in order to please give the verdict as

below:

1. Accept and grant the applicant's request;

2. Article 16 paragraph (1) of the Law No. 2 of 2008 on

Political Party (Indonesian Republic of Indonesia No. 2, 2008,

Additional Gazette of the Republic of Indonesia Number 4801) contradictory

with The Basic Law of the Republic of Indonesia in 1945

conditional (conditionally unconstitutional);

3. Article 16 paragraph (1) Act No. 2 of 2008 on

Political Party (Indonesian Republic of Indonesia No. 2, 2008,

Additional Gazette of the Republic of Indonesia Number 4801) could not

have legal powers The one that binds to the unqualified

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applies to members of the political party immediately upon my role as

President and Vice President of the Republic of Indonesia;

4. Ordered this loading of this termination in the News of the Republic of Indonesia

as it should be;

If the Constitutional Assembly of the Constitution argues for another, please verdict for justice

and the good that is fair (ex aequo et Bono.

[2.2] A draw that in order to strengthen the control, the applicant submitted

a written evidence that was given a Proof of P-1 up to the Evidence P-7, as

below:

1. Proof P-1: Photocopy Card Population (KTP);

2. Evidence P-2: Photocopied Act No. 2 of 2008 on Party

Politics;

3. Evidence P-3: Photocopies Daily Kompas on 8 February 2010;

4. Evidence P-4: Photocopy Of The United States Party Member Of The Movement Party/n

The applicant;

5. Proof P-5: Photocopy of the Daily News Kompas Sunday, March 28, 2010

page 11;

6. Evidence P-6: Photocopied News Vivanews.com, Saturday, February 27, 2010;

7. Evidence P-7: Photocopied News Tempointeraktif.com Tuesday, February 23,

2010.

[2.3] A draw that to shorten the description in this ruling, all

something that occurred in the trial is appointed in the news of the proceedings, and

is one unbreakable unit with this ruling;

3. LEGAL CONSIDERATIONS

[3.1] weighed that the intent and purpose of the applicant's plea was

regarding the material testing of Article 16 paragraph (1) Act Number 2

In 2008 about the Political Party (the Republican Gazette) Indonesia

Year 2008 Number 2, Additional Gazette Republik Indonesia

Number 4801, subsequently called Act 2/2008) against the Basic Law

The Republic of Indonesia in 1945 (subsequently called UUD 1945);

19

[3.2] A draw that before considering the subject's subject,

The Constitutional Court (later called the Court) would consider

in advance of the following:

a. Court authority to check, prosecute, and disconnect

plea a quo;

b. legal (legal standing) applicant;

Against those two matters, the Court argued, as follows:

The authority of the Court

[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution

again mentioned in Article 10 of the paragraph (1) letter of Law Number 24

In 2003 on the Constitutional Court (State Sheet of the Republic of Indonesia

Year 2003 Number 98, Additional Gazette of the Republic of Indonesia

No. 4316, further called the MK Act) and Article 29 paragraph (1) letter a

Act Number 48 2009 on the Power of Justice

(sheet of state of the Republic of Indonesia 2009 No. 157,

Additional Gazette Republic of Indonesia Number 5076), one

Constitutional authority of the Court is testing The Act against

Constitution of 1945;

[3.4] Draw that the applicant's plea is regarding testing

Act in casu Act 2/2008 against the Constitution of 1945, so that the Court

authorities to examine, judgment, and severing of a quo;

Legal standing (Legal standing) The applicant

[3.5] A draw that under Article 51 of the paragraph (1) MK Act, which can

act as the applicant in testing an Act against

The 1945 Constitution is those who consider the right and/or authority

its constitutionality is harmed by the enactment of the required Act

testing, i.e.:

a. Individuals in Indonesia (including groups of people

have common interests);

20

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. country agencies;

[3.6] Menbalanced also that the Court since the Decree No. 006 /PUU-

III/2005 dated May 31, 2005 and Putermination Number 11 /PUU-V/2007 dated

20 September 2007 as well as subsequent rulings have been establish that

rights and/or constitutional rights losses as intended

Article 51 of the paragraph (1) The MK bill must meet 5 (five) terms, that is:

a. the rights and/or constitutional authority of the applicant given by

Constitution of cant therefore does not have a legal standing

(legal standing) to apply for a quo;

[3.9] It is tied that since the applicant has no legal position

(legal standing) for Submit this request, the Court does not

balance the dalil-dalil in the subject of the request of please.

4. KONKLUSI

Based on the description of the facts and laws in consideration at

above, the Court concluded:

[4.1] The court is authorized to examine, prosecute, and disconnect

the plea a quo;

[4.2] The applicant has no legal position (legal standing) for

applying for a quo;

[4.3] The application is not considered;

Based on the Basic Law of the Republic of Indonesia Year

1945 and given Article 56 paragraph (1) Act Number 24 of 2003

on Constitutional Court (Indonesian Republic Of Indonesia Year 2003

Number 98, Additional Gazette Republic Of Indonesia Number 4316);

5. AMAR RULING

PROSECUTING

Restating the applicant is not acceptable.

24

So it was decided in a Consultative Meeting that

attended by the nine Judges of the Constitution on Wednesday nineteen

in May year two thousand ten and spoken in the Court of Justice Plenary

The Constitution is open to the public on Thursday the third of June of the year two

thousand ten, by our Moh. Mahfud MD, as Chairperson of the Member,

Achmad Sodiki, Hamdan Zoelva, Harjono, Ahmad Fadlil Sumadi, M. Arsyad

Sanusi, M. Akil Mochtar, Muhammad Alim, and Maria Farida Indrati respectively

as Members with assisted by Eddy Purwanto as the Panitera Replacement,

attended by the applicant, the People's Representative Council, or the representative,

and the Government or the representative.

CHAIRMAN

ttd.

Moh. Mahfud MD

MEMBERS,

ttd.

Achmad Sodiki

ttd.

Hamdan Zoelva

ttd.

Harjono

ttd.

Ahmad Fadlil Sumadi

ttd.

M. Arsyad Sanusi

ttd.

M. Akil Mochtar

ttd.

Muhammad Alim

ttd.

Maria Farida Indrati

25

PANITERA REPLACEMENT

ttd.

Eddy Purwanto

stitution of 1945 are conditional (conditionally unconstitutional)

i.e. with the provision included if a member of the court is not eligible to be used.

The political party is being inducted

being President or Vice President;

[3.7.2] That against the petitioners who stated the applicant is

the citizens of Indonesia who are entitled to apply a quo, the Court

argues that based on the P-1 Evidence is connected to the provisions of the Article

51 paragraph (1) item a Political Party Act, the applicant as an Indonesian citizen

has met the provision to apply for a quo;

[3.7.3] That the applicant postulate, has been harmed by his constitutional rights

under the provisions of Article 28I paragraph (2) of the 1945 Constitution that states, "Any

persons are entitled to be free of any discriminatory treatment of any basis

and entitled to obtain protection against the treatment which being

that discriminatory", over the enactment of the provisions of Article 16 verse (1) Political Party Law

which states, "Political Party members are dismissed from the Party

Politics if:

a. died;

b. resigning in writing;

22

c. be a member of another Political Party; or

d. violates the AD and ART",

because the President or Vice President who is a member of the political party at the moment

taking office as President or Vice President will precede

the interests of his political party, so that the President or Vice President will be elected to the President. would act discriminatory and would not

be able to be neutral and impartial in making policies

the country. Against the applicant, the Court argued that it

is only speculative because in the state system under the Constitution

1945 there is a checks and balances mechanism between the state agencies and

control mechanisms of the public such as the press, civil society organization, and non-

government organization. More than that in all democracies does not exist

a ban on the leadership of political parties to have a position in leadership

the country as far as its own political party is internally supported by the people through

the election general provides trust for it.

According to the Court, the applicant has the constitutional right not to be treated

discriminated as warranted by the provisions of Article 28I paragraph (2)

Constitution of 1945, but the dalil-dalil The applicant did not indicate

existence of a constitutional loss, both the specific, actual, or potential

(s) which the Applicant Suffers with the provision of the provisions of Article 16 paragraph (1) Invite-

Invite a quo. According to PMK Number 06 /PMK/2005 on the Event Guidelines

In the Act Testing Act, one of the legal terms

(legal standing) is a potential loss that according to reasonable reasoning

is definitely going to be Happened. In the applicant's proposition, the applicant's potential loss

The applicant is a discriminatory and unneutral action of a member

The political party that serves as President or the Vice President is merely

possibility that may occur but may also not occur;

[3.7.4] That according to the Court, a political party is one of the pillars of democracy

which also has the intent and purpose of advancing the nation and the country. Wrong

one way the political party to play a role in advancing the nation and country is

to submit cadres and members to lead as well as co-determine

the policies of the country through power. (state institutions)

which is held by the state as a political office. That is why Article 6A paragraph (2)

Constitution of 1945 provides authority to political parties or a joint party

politics to propose a spouse of the Presidential candidate and the Vice President to participate

23

in the general election of the President and Vice President. Therefore, it is not

exactly the applicant who has always associated any member of the political party that

is occupying the post of state will act only favoring the party

his politics and will act. It's criminative. As such, according to the Court

the constitutional loss due to the enactment of the provisions of Article 16 paragraph (1) Act a quo

as the applicant has been postulate in this case becomes irrelevant;

[3.8] Rebalanced that based on the description of paragraph [3.7.1], paragraph

[3.7.2], paragraph [3.7.3] and paragraph [3.7.4] above, according to the Court, is not

there is a constitutional loss of the applicant for the enactment of Article 16 of the paragraph (1)

Act 2/2008. The appli