Key Benefits:
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
7
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 S inciples
(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,
14
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 Indo nesia;
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
18
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
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