Key Benefits:
F
VERDICT Number 38 /PUU-VIII/2010
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecuting, and severing a constitutional case in
first and last level, dropping a ruling in a matter of plea
Testing Act No. 27 of 2009 on Assembly
Consultative People, House of Representatives, House of Representatives Area,
and the Regional People ' s Representative Council, and Act Number 2 Year
2008 about the Political Party of the Republic of the Republic
Indonesia In 1945, submitted by:
[1.2] Name: Lily Chadidjah Wahid
Place and Date of Birth : Jombang, 4 March 1948
Job : DPR Member RI Fraction PKB
Address : Kp. South swamp, RT 010, RW 04, Kelurahan Kampung Rawa, Subdistrict
Johar Baru, Central Jakarta;
Based on Special Power dated May 15, 2010 authorized to
Saleh, SH., Dedy Cahyadi, SH., Roy R.S.P. Aroean, SH., Wegig Gunawan Yusuf, and Moch. Sulaiman, SH., everyone advocate/Lawyer at Advocacy Team Lily Chadidjah Wahid address at West Tebet Street V No. 29, Tebet South Jakarta, either together or individually
act for and on behalf of power;
Next is called as -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
written in the People's Representative Council;Checking the evidence from the applicant;
2
2. SITTING MATTERS
[2.1] Ruling that The applicant has submitted this undated application
May 21, 2010 which was accepted in the Constitutional Court (next
called the Court of Justice) on 21 May 2010 and listed on
on June 3, 2010 with Perkara registration Number 38 /PUU-VIII/2010, which
has been corrected and received in the Court of Justice on June 3
2010, outlining the following:
Base Of The Request
The Constitutional Court Authority
1. That under the provisions of Article 24C paragraph (1) of the third change of Invite-
Basic Law of 1945 states that " Constitutional Court of authority
prosecute at the first and final level of which the verdict is final
to test the Invite-Invite against Basic, disconnect
the dispute over the authority of a state institution is granted by
Constitution of 1945, severing the dissolution of the political party and severing the dispute
about the general election results "
2. That under Article 1 of paragraph (3) of the letter a Invite-Invite Number 24
in 2003 of the Constitutional Court states Plea is
The request submitted in writing to the Constitutional Court
regarding: Invite-Invite Test against Basic Invite
State of the Republic of Indonesia in 1945;
3. That under Article 10 paragraph (1) Invite-Invite Number 24 of 2003
On the Constitutional Court states that " Constitutional Court
authorities prosecute on the first and final level of its verdict
is final to test the Invite-Invite against Invite-Invite
Basic, severing the jurisdiction of the state institution's authority
provided by UUD 1945, severing the dissolution of the political party and severing the
disputes about the outcome of the general election "
4. That under Article 29 paragraph (1) Invite-Invite Number 24 of the Year
2003 on the Constitutional Court states that " Plea is filed
3
is written in English by the applicant or its ruler
to the Constitutional Court ";
Occupation of Law (Legal Standing) Pemapplicant
1. That Section 51 paragraph (1) Act No. 24 of 2003 on the Court
The Constitution states that the applicant is a party that considers the right
and/or its constitutional authority be harmed by the enactment of the Invite-
Invite, that is:
a) Individual of the Indonesian state;
b) The unity of the indigenous legal society as long as it is alive and in
with the development of the Republic of the Republic of the Republic
Indonesia which is governed in the Invite-Invite;
c) Public or private legal bodies, or;
d) state agencies.
2. That Section 51 paragraph (2) of the Law Number 24 of 2003 on the Court
The Constitution states that the applicant is required to outline clearly
in his application of the rights and/or its constitutional authority
as it is in verse (1).
3. That explanation of Article 51 of the paragraph (1) of the 24/2003 Act states that
referred to by "constitutional right" is the right-the right set up in the Constitution
1945;
4. That the applicant needs to first explain its position, the right
the existing constitution on the applicant, as well as the specific loss that will
on its return as follows: The applicant is a person of the country
Indonesia who was a member of the DPR RI election results 2009-2014 pursuant
with the Decree of the President of the Republic of Indonesia Number 70 /P of the Year 2009
set on 15 September 2009 and currently entered as
members of Commission I who were Defense, Kominfo and Foreign Affairs
with A-160 member numbers in accordance with the decision of the PKB Fraction Number:
X.A. 040/FPKB/DPR-RI/X/2009 dated 19 October 2009 have
interests related to section 213 test applications (2) letter e,
letter h Invite-Invite Republik Indonesia Number 27 Year 2009 About
MPR, DPR, DPD and DPRD as well as Section 12 of the letter g, letter h Invite-Invite
4
The Republic Of Indonesia Number 2 Of 2008 About The Political Party Against The UUD
The State Of Indonesia 1945.
5. The selection of the applicant as a member of the House of Representatives in the 2009 election
is with the open proportional voting system with the application of the votes
the most votes and the applicant are to receive the most votes
so that by the The Electoral Commission is set to be a member of the House
elected, and the election of the applicant placing the right-right sovereignty
in the hands of the people in accordance with Article 1 of the paragraph (2) of the 1945 Constitution.
6. That the applicant's election as a member of the House of Indonesia was chosen through
an election process organized to elect a member of the House that
executed directly, general, free, secret, honest and fair every five
year once.
7. That with the implementation of Article 213 paragraph (2) letter e, letter h Invite-
Invite Republik Indonesia Number 27 Year 2009 About MPR, DPR, DPD
and DPRD as well as Section 12 of the letter g, letter h Invite Republic
Indonesia Number 2 2008 About the Political Party, rights and/or
the constitutional authority of the Wronged Applicant and the applicant are very
in interest because of such provisions as-the time may be enacted
or experienced by the applicant's self-interest. this becomes a member of the House if the party
politics wants it to do a stop Intertime or the
commonly known as "recall" by the political party despite the petitioner
with the electoral system with the most votes
placing sovereignty in the hands of the people in accordance with the " verdict
Constitutional Court number 22-24/puu-vi/2008.
8. That Section 213 paragraph (2) letter e, letter h Invite Republik
Indonesia Number 27 Year 2009 About MPR, DPR, DPD and DPRD and
Article 12 of the g, letter h Invite-Republic of Indonesia Number 2
2008 About The Political Party is above clearly very detrimentally to
The applicant, i.e. the rights of the applicant is violated as potential as
guaranteed by the Constitution of 1945 Article 1 paragraph (2), Article 28G of the paragraph (1).
9. That thus the applicant has fulfilled the qualification as
referred to in the provisions of Article 51 of the paragraph (1) letter a Act 24/2003 on
The Constitutional Court;
5
10. That next in the Constitutional Court Decree Number
006 /PUUIII/2005 and Putermination Number 11 /PUU-V/2007 have determined 5
(five) the terms of the constitutional loss as referred to in Article 51
paragraph (1) Act No. 24 of the Year 2003 on the Constitutional Court, as follows:
a. the constitutional right of the applicant given by UUD 1945;
b. that the applicant ' s constitutional right is considered by the applicant to have
harmed by a passed legislation;
c. that the intended constitutional loss is specific
(special) and actual or at least potentially a potential that
reasonable reasoning can be certain to occur;
d. (causal verband) between the loss and
the enactment of the legislation is being treated for testing;
e. It is possible that with the request of a request then
the constitutional loss postured will not or no longer occur;
11. That the applicant's actions submit a Judicial Review Section 213 paragraph (2)
letter e, letter h Invite-Invite Republik Indonesia Number 27 Year 2009
About MPR, DPR, DPD and DPRD as well as Section 12 of the letter g, letter h Invite
-Invite The Republic of Indonesia Number 2 of the Year 2008 About the Political Party
is an individual personal act of Indonesian citizens who currently
be a member of the House, not as a member of the House. This is very different
with the case Number: 20 /PUU-V/2007 that has been decided by
The real-real Kostitution court acts as a member of the House and
in accordance with its application that addresses its appeal
address office at Nusantara Building I, Jalan Jenderal Gatot Subroto,
Jakarta 10270.
12. That related to the existence of the Constitutional Court Number
151 /PUU-VII/2009 was the point because the applicant in his position
as a member of the House, the Constitutional Court judged the substance of the material test
which was submitted was not It is the constitutional right of the applicant according to
Constitution of 1945. That the filing of the Judicial Review Section 213 paragraph (2) letter e,
letter h Invite-Invite Republik Indonesia Number 27 Year 2009
About MPR, DPR, DPD and DPRD as well as Article 12 of the letter g, letter h Invite
-Invite the Republic of Indonesia Number 2 Years 2008 About the Political Party
submitted by the applicant is a very substance related directly
6
with the applicant currently being a member of the House. That the article
submitted Judicial Review at any time would have cost the applicant
which is currently a member of the House if desired by a political party that
advises him to do a change between time and time. known
with "recall" even though the applicant is selected through the Election with the system
proportional open with the most votes based on the ruling
Constitutional Court number 22-24/puu-vi/2008 that puts
Sovereignty really is in the hands of the people.
13. That in one case a few moments after retrieval
decisions related to the Bank Century Bank case's handling of the right angket case,
where the applicant is different from the party policy
up it where the applicant is more The interests of the people/
constituencies that he represents. However, what is happening in some media is good
print and electronics appear to be a threat from the petitioner's political party
to "recall". This suggests that "recall"
represents a threat to the applicant in performing its duties as
a member of the House who should actually fight
the voice of the people that it represents.
14. That although currently the applicant is a member of the House, but the right
this dividu Pemapplicant as a citizen of Indonesia to submit
Judiciary Review Act against the Constitution of 1945 is not lost, it is resolute
in the 1945 Constitution where Not a single chapter governs that
someone who is a member of the House, the individual constitutional right is missing
to file a Judiciary Review Act against the Constitutional Court
Constitution, and there is also no one verdict even from the Constitutional Court
that expressly states that the person who is Representative of the House of Representatives
A constitutional individual is missing to propose a Judiciary Review
Review of the Act against the 1945 Constitution.
15. That the Right as set in Section 20A of the 1945 Constitution
reads: (1) The House of Representatives has a function of legislation, functions
budget and supervising functions; (2) In performing its function,
in addition to the rights of the governed in other sections of this Basic Law,
The House of Representatives has rights of interpelasi, right of angket, and right
states the opinion; (3) In addition to the right set in other sections
7
This Basic Law, any member of the House of Representatives
has the right to ask questions, address and opinion
as well as the right of immunity; it is the privilege of a person who is being a member
House that cannot remove individual individual privileges even if
has become a member of the House.
16. That based on those criteria above, the applicant is
the party with the causal relationship (causal verband) between the loss
the constitutional with the enactment of the Invite to
tested due to Section 213 paragraph (2) letter e, letter h Invite-Republik
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD and
Article 12 of the g, letter h Invite-Republic of Indonesia Number 2
2008 About the Political Party clearly-clearly contrary to the Constitution
1945 Article 1 paragraph (2), Article 28G paragraph (1).
17. That thus, the applicant has argued to have a legal position
(legal standing) as a party in the application for testing of the Act
against the Basic Law of 1945.
Subject
1. That Section 213 paragraph (2) letter e, letter h Invite Republik
Indonesia Number 27 Year 2009 About MPR, DPR, DPD and DPRD and
Article 12 of the g, letter h Invite-Republic of Indonesia Number 2
2008 About Political parties in opposition to the 1945 Constitution Article 1
paragraph (2), Article 28G paragraph (1).
2. That Section 213 paragraph (2) letter e, letter h Invite-Republic
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD
reads:
House members are dismissed intertime as referred to by paragraph (1)
letter c, if:
e. proposed by its political party in accordance with the perinvite regulations-
the invitation.
h. dismissed as a member of the political party in accordance with the provisions
an invite-invite rule.
3. That Article 12 of the letter g, letter h Invite-Invite Republik Indonesia Number
2 Year 2008 About the Political Party reads:
The political party is entitled:
8
g. propose a change between the time of its members in the House of Representatives
People and the Regional People's Representative Council in accordance with the regulations
invite-invite.
h. proposed the removal of its members in the People's Representative Council and
The Regional People's Representative Council in accordance with the rules of the invite-
invitation.
4. That in this case the applicant has had the right to be guaranteed by
Constitution of 1945:
-Opening of the Constitution of 1945 paragraph to 2 which reads: And the struggle
the movement of independence of Indonesia has come to a moment
happy with a happy sentausa delivering the people of Indonesia to
front gate of the independence of the State of Indonesia, which is independent,
united, sovereign, fair and prosperous
-Opening of UUD 1945 alinea to 4 which reads: Then from on that
to form an Indonesian State Government that protects
all Indonesia and all of Indonesia's blood and for
advance the general welfare, divorce the lives of the nation and
participate in the order of the world which is based on independence,
eternal peace and social justice, then the independence of Indonesia
The nationality of Indonesia is in a State Basic Law
Indonesia, which is formed in an arrangement of the State of the Republic of Indonesia
which is citizen-sovereign.
-Article 1 verse (2) UUD 1945 reads: Sovereignty is in the hands of the people
and executed according to the Basic Invite.
-That Section 28G paragraph (1) of the Constitution of 1945 reads: Everyone is entitled to
personal protection, family, honor, dignity, and property
which is below its integrity, as well as the right to the sense of safety and
protection from the threat of fear to do or not to do
something that is a fundamental right. 5. That after being reviled by Article 213 (2) letter e, letter h Invite-Invite
Republic of Indonesia Number 27 of 2009 On MPR, DPR, DPD and
DPRD as well as Article 12 of the letter g, letter h Invite-Republic of Indonesia
Number 2 Year 2008 About the Political Party, its spirit is very out of
Opening of the 1945 Constitution of paragraph to 2 which reads: And the struggle of movement
9
Indonesia's independence has come to a happy moment with
happy sentausa delivering the Indonesian people to the front of the gate
independence of the State of Indonesia, which is independent, united, sovereign, fair and
prospered and Pembuakan UUD 1945 alinea to 4 which reads: Then from
on it to form an Indonesian State Government which
protects the entire Indonesian nation and the whole spill of blood Indonesia
and to advance general welfare, enlighten the nation ' s life
and participate in a world order that is based on independence,
eternal peace and social justice, then the independence of Indonesia
The nationality of Indonesia is in the Constitution of the Nation
Indonesia, which form in an array of State of the Republic of Indonesia
the sovereign of the people. That is very clear in the opening of the 1945 Constitution
paragraph 2 and paragraph 4 above is expressly stated
that sovereignty is in the hands of the people and with the election of candidates
Legislative members including the applicant As a member of the House then the party's role
politics has finished with the election of a candidate-the nominee of choice that has been
determined by the political party as well as the people's choice.
Then it's the political party. no longer entitled to replace the candidate
elected as a member of the People ' s Representative Council unless it gets
the approval of the people who have chosen it.
6. That Section 213 paragraph (2) letter e, letter h Invite-Republik
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD
The spirit is also out of Article 1 of the paragraph (2) of the Constitution of 1945 which is expressly
states that sovereignty is in the hands of the people and exercised
according to the Basic Invite. It is to point that sovereignty
the highest is only in the hands of the people not being in the political party.
7. That the provisions of dismissal of House members proposed by the party
politics and dismissal as members of the political party are clearly going
empties at the interchange of time as House members or more
known as with "recall" is going to violate the right of the applicant who has been selected
by the people in the elections based on the most votes. That with
designated the Legislative General Election with an open proportional system
with the most application of votes placing sovereignty in
the people ' s hand in accordance with the ruling Constitutional Court NUMBER 22-
10
24 /PUU-VI/2008, it should be the people who have sovereignty not
the political party so that the turnover of the House members as set in
Article 213 paragraph (2) the letter e, the letter h Invite- Invite the Republic of Indonesia
No. 27 Year 2009 About MPR, DPR, DPD and DPRD as members
The House is violating the azas of people ' s sovereignty, and is not an authority
political party to dismiss or me-recall members DPR, because
the 2009 election has implemented an electoral system with an open proportional
with the most votes so that the authority to dismiss
House members are no longer in the political party but are the people who
have chosen him who actually has sovereignty.
8. That Section 213 paragraph (2) letter e, letter h Invite-Republik
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD strongly
gives the political party preferable authority to propose
interchange time or better known by " recall", at once
granted special authority by the Act to dismiss
as a member of the political party that would empties at the dismissal
someone as a member of the House as the title of article 213 verse (2)
is "House members are suspended between time". So automatically
the person who is dismissed as a member of the political party will automatically
also be dismissed as a member of the House.
9. That the applicant does not deny the provisions of Article 22B of the 1945 Constitution which
states: House members may be dismissed from office, which are the terms-
terms and conditions set out in the law.
10. That in accordance with Article 213 of paragraph (2) Invite-Republic of the Republic
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD
it is stated that:
(2) The DPR members are suspended intertime as referred to in the paragraph
(1) letter c, if:
a. unable to perform the task on a continuous or hindrable
remains as a member of the House for 3 (three) consecutive months without
any caption;
b. breaking the oath/promise of office and the house code of conduct;
11
c. found guilty based on the court ruling that has
obtained a legal force fixed for committing a criminal offence
threatened with a prison criminal 5 (five) years or more;
d. not to attend the plenary meeting and/or meeting of the House of Representatives which
is the duty and duty of 6 (six) consecutive times
for no valid reason;
e. proposed by its political party in accordance with the perinvite regulations-
invitation;
f. no longer qualify as a Speaker of the House in accordance with
provisions of the rules of the law regarding the general election
members of the House, DPD, and DPRD;
g. violates the prohibition provisions as set out in the Act
this;
h. dismissed as a member of the political party in accordance with the provisions
the laws of the negotiations;
or
i. be a member of another political party.
11. That there is a provision of the House member's dismissal
as set out in Section 213 of the paragraph (2) letter a, letter b, letter c, letter d,
letter f, g and letter i Invite-Invite Republik Indonesia Number 27
Year 2009 About MPR, DPR, DPD and DPRD shows that
Indonesia is a legal country in accordance with the provisions of article 1 paragraph (3)
UUD 1945 which one of them set about the dismissal of the members of the House.
That as a law state there must be a clear parameter and size
that the House members can be dismissed, and this corresponds to Article 22B
Constitution of 1945 where the members of the House may be dismissed. However, other than
stops are set up with Article 213 of the paragraph (2) letter e, letter h Invite
-Invite the Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD
and the DPRD which gives the political party the authority to
dismiss commonly known House members with "recall", this
no clear measure could even be a mere subjective which could
based on the likes or dislikes of the political party leadership or
the arbitrariness of the political party against its members being
members of the House who are not in line or different opinions in delivering
12
or voicing the aspirations of the constituent or people of the electorate, then House members
can be dismissed.
12. That the dismissal of the House of Representatives in accordance with Article 22B of the 1945 Constitution
that should be the sole-eyes of the House member in violation of the Invite-invite
and the code of conduct have been denied by the provisions of Article 213 of the paragraph (2) letter e, letter h
Invite- Invite the Republic of Indonesia No. 27 of 2009 About the MPR,
DPR, DPD and DPRD the authority to do "recall"
against the members of the House on the grounds that something could be subjective, whereas
in the 1945 Constitution did not There is a single provision stating that
political parties can do "recall" against the House members.
13. That the provisions of Article 196 paragraph (1), paragraph (2) and paragraph (3) Invite-Invite
Republic of Indonesia No. 27 of 2009 About MPR, DPR, DPD and
DPRD reads:
(1) Representative rights
(2) DPR members are not can be prosecuted in front of the court for statements,
questions, and/or opinions that are being driven either orally
nor written in the House meeting or outside of the House meeting
relating to the function as well as the task and the House Authority
(3) DPR members cannot be replaced intertime due to statement,
questions, and/or opinions that are driven both in the meeting
DPR and outside the House meeting related to the function as well as the duties
and the authority of the House.
14. That it should be provided with the provisions of Section 196 of the paragraph (1), paragraph (2) and
paragraph (3) above which governs the rights of the people of the House
then it should be Section 213 of the paragraph (2) of the letter e, the letter h Invite
Republic Indonesia Number 27 Year 2009 About MPR, DPR, DPD and
DPRD that set about intertime or better known changes
with "recall" is no longer necessary in accordance with Article 196 of the paragraph (3)
meant that The DPR member cannot be replaced between time.
15. That in one case a few moments after retrieval
decisions related to Pansus Hak Angket's handling of the Century Bank case,
where the applicant is different from the policy of the political party that
rises it, where the applicant is It's the people's interest.
The constituencies that he represents. But what's going on in some media is good
13
print and electronic media appear to be a threat from the political party
The applicant is able to perform "recall". This indicates that if
"recall" is a threat for the applicant and the political party's potent weapon
to silence its members who sit as members of the House in
running his duties as a member of the House that should really
fight for/voice the voice of the people It's a waken.
16. That the provisions of Section 215 paragraph (1) Invite the Republic of Indonesia
No. 27 Year 2009 About MPR, DPR, DPD and DPRD reads:
The Pit Stop in section 213 paragraph (2)
letter a, letter b, letter b, letter b, letter d, the letter f and the letter g, performed after the results
inquiry and verification poured in the decision of the Agency
The House of Honor for the complaint of the Speaker of the House, society, and/or
voters.
17. That in Section 215 paragraph (1) Invite-Invite the Republic of Indonesia Number
27 Years 2009 About the MPR, DPR, DPD and the DPRD above
provides an exception to Section 213 of the paragraph (2) letter e, letter h Invite
-Invite the Republic of Indonesia. Indonesia Number 27 Year 2009 About MPR, DPR, DPD
and DPRD. Meaning intertime stop or "recall" against members
The House of Representatives conducted by a political party is not required an investigation and
verification by the Board of Honor and without any complaint including
complaint of the voters. This provides a very outside authority
unusually large to the political party to dismiss or "recall"
its members who sit as members of the House which could be based only
over whether or not liked or conflicting with party policy.
18. That with the implementation of Article 213 paragraph (2) of the letter e, letter h Invite-
Invite the Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD
and the DPRD which authorizes political parties to
dismiss the interchange between the parties. A member of the House of Representatives, commonly known as
"recall" and a stop as a member of the political party that would empties
at a person's dismissal as a member of the House, has shifted
the sovereignty of the people. become the sovereignty of the political party because of the politico party
in power whether A person has been dismissed as a member of the House or
not even if it has been chosen by the most votes by the people who voted for him.
Me-recall a member of the House is either reneging or negating results
14
People's elections based on the General Election with the system
are proportionally open with the application of the vote that puts holders
the sovereignty is right-right in the hands of the people in accordance with the verdict
Constitutional Court number 22-24/puu-vi/2008.
19. That the electoral system in Indonesia has undergone many changes from time to
time, as in the new order era, elections in Indonesia subscribe to the system
Pure proportional elections and known for the right recall. In the time
Reform, the 1999 elections are known as the electoral system with a system
pure and unrecognized recall. While at the election
in 2004 it was known as the electoral system proportional to the list of candidates
open and known for recall. While the last election was the election
in 2009 was known by an open proportional system with the application
the most votes based on the ruling Constitutional Court NUMBER
22-24/PUU-VI/2008 that put sovereignty really be in
the hands of the people, where the people are given the freedom to vote and
determine the candidate of the legislature who will be elected. This is appropriate
with Article 1 of the paragraph (2) of the 1945 Constitution which states that sovereignty
is in the hands of the people and is exercised according to the Basic Law.
Yet oddly, the 2009 elections have implemented the General Election
with open proportional system with the most application of votes
in accordance with the Constitutional Court ruling above which
puts the people as determinate, but the Permanent Invite
enacts the right of "recall" by the political party.
20. That the right "recall" by granting authority
the political party to dismiss its members in the House indicated that
the existence of a political party is retreating back to authoritarian times. In
Indonesia's history rights "recall" was revived on the regime of President Suharto, and
by hence the spirit of reform rights "recall" omitted for the election
in 1999 but Invite Number 2 in 2003 reviving
back "recall" by the political parties. So the political party is stuck again by
the past that allows the party to be very powerful against
its members who sit as members of the House. This proves that
problem "recall" has been interpreted depending on the taste-tastes of the ruler
the ruling political party is not based on the Constitution of the 1945 Constitution.
15
21. That the ruling of the Constitutional Court is Number 22-24/puu-vi/2008 page
102 in the material test rights of Article 214 letters a, b, c, d and e UU No 10 of 2008
in its role the Constitutional Court provides one judgment and
the opinion. laws, as follows:
Article 1 of the paragraph (2) of the 1945 Constitution states that sovereignty is in
the hands of the people and exercised according to the Basic Law. This
shows that the highest sovereignty is in the hands of the people, so that
in various general election activities, the people directly vote for who
that he wants. The sound of the people's choice represents the high
political legitimacy obtained by both legislative and executive candidates,
in contrast the lack of votes also shows the low
the political legitimacy of the candidate. concerned;
That principle of the sovereignty of the people is a very constitutional principle
fundamental that not only gives color and spirit to the constitution
that determines the form of government, but it can also be seen
as a constitutional morality that gives color and nature to
The overall invite-invite in the political field. Although it must be recognized
the need to maintain a single political leadership recruitment system which is primarily
is played by a healthy political party, then as one method and
recruitment procedures in the political system and representative that the exercise, should
be given a clear boundary that the political party should not be until
violating the principle of the sovereignty of the people, which can be seen as a principle
a very fundamental constitution and cannot be ruled out, because
not just a basic norm but more than that is a
The morality of the constitution for all state and nation ' s lives in
the political, social, economic, and legal fields. The principle should be
side by side, should not be denied but instead must uphold
the human rights that make up and be the foundation of the harkat and
human dignity (the dignity of man);
22. That based on the ruling of the Constitutional Court above is very clear
placing sovereignty in the hands of the people and the principle of sovereignty
the people constitute a very fundamental constitutional principle, although it must be
recognized need to be nurtured one political leadership recruitment system especially
played by a healthy political party, then as one method and
16
recruitment procedures in the political and representative systems, should
be given a clear limit for such political parties to be unable to reach
in violation of the principle of the sovereignty of the people.
23. That it should be when the Constitutional Court ruled that the Election
in 2009 applied the Election with an open proportional system with
the most votes were based on the ruling Constitutional Court of NUMBER 22-
24 /PUU-VI/2008 dated 23-12-2008 which puts sovereignty
is in the hands of the people where the people are given the freedom to vote and
determine the candidate of the legislature to be elected, should
the creation of the Invite-Invite Republic of Indonesia Number 27 Year 2009
About the MPR, DPR, DPD and the new DPRD passed on the 29th
August 2009 refers to the ruling of the Constitutional Court and
it should be the authority of the political party to dismiss
its members in the House are abolished, as the elected House members are
A representation of the majority of the people who chose it. The magnitude of the vote
The people's choice represents the high political legitimacy obtained by the candidates
the candidate of the legislature, in contrast to the lack of votes as well
shows the low legitimacy of the political legitimacy of the candidate. legislative.
24. That article 213 paragraph (2) letter e, letter h Invite-Invite
Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD and
DPRD has embraced sovereignty to be in the hands of a political party instead of
in hand the people. People who voted with the most votes were appropriate
with the electoral system with an open proportional system
intends for the dismissal of the elected House,
but if the political party is not available.
The replacement of the DPR can
remain in place as it is set up in Section 213 paragraph (2) letter e, letter
h Invite-Invite Republik Indonesia Number 27 Year 2009 About MPR,
DPR, DPD and DPRD provides the authority on political parties to
dismiss its members sitting in the House.
25. That thus the provisions of Article 213 paragraph (2) of the letter e, letter h Invite
-Invite the Republic of Indonesia Number 27 of 2009 On the MPR, DPR, DPD
and the DPRD have shifted the sovereignty of the people to political parties. The provisions
this is clearly-clearly contrary to the provisions of the Basic Law of 1945
that puts sovereignty in the hands of the people who have been guaranteed
17
by Invite-invite. Thus the provisions of Article 213 paragraph (2) of the letter e,
letter h Invite-Invite Republik Indonesia Number 27 Year 2009 About
MPR, DPR, DPD and DPRD have been in conflict with Article 1 of the paragraph (2) of the Constitution
1945.
26. That the provisions of Article 213 paragraph (2) of the letter e, letter h Invite-Invite
Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD and
DPRD have given the authority to dismiss between time and
stops as members The political party that empties at the
intertime stop or better known as "recall" against
House members as time could be experienced by the applicant without any
the parameters are clear.
27. That such provision is the recording of the applicant
to be a member of the House not to voice the people in total
if contrary to party policy lines despite the party policy
it is not According to the wishes of the people who chose him. If
at the time the members of the House could be dismissed by a political party as
a member of the House then would raise the fear of the applicant
to be a member of the House to voice the aspirations of the people who have been
select it if it goes against the party policy.
28. That as a citizen of Indonesia and as a member of the House, the applicant
is entitled to the protection of the threat of fear to commit or not
to do something in accordance with Article 28G of the paragraph (1) of the 1945 Constitution.
29. That in one case a few moments after retrieval
decisions related to Pansus Hak Angket's handling of the Century Bank case,
where the applicant is different from the policy of the political party that
rises it, where the applicant is It's the people's interest.
The constituencies that he represents. But what happens in some media is good
print media and electronic media appear the threat from the political party
The applicant is to perform "recall". This suggests that if
"recall" represents the threat to the applicant and the political power of the political party
to silence its members who sit as members of the House in
running his duties as a member of the House that should really
fight for/voice the popular vote He's the one he's in.
18
30. That such a change of time or more familiar with
"recall" against the House members by a political party is abolished, given the candidate
a member of the House of Representatives elected by the people with a proportional electoral system
open with the most application of votes, so that the members of the House who
are elected to voice the aspirations of the people who have chosen him with the
maximum without any fear of the political party as the time can
dismiss or me-recall if it does not comply with party policy.
31. That Section 213 paragraph (2) letter e, letter h Invite Republic
Indonesia Number 27 of 2009 On MPR, DPR, DPD and DPRD to be
shade of fear for House members because political parties are granted
authority to propose and dismiss a person as
a member of a political party that empties at the alternation of time or that
better known as "recall", is the authority granted by the Act
the time of such provision is applied to House members who
not in line with the line party policy even though the party policy is not
in accordance with the aspirations of the people who have voted
32. That the Protection of Human Rights in Indonesia is in real a set up
in the 1945 Constitution after the amendment. The explanation is contained in Article 28
Constitution of 1945 So that there is a constitutional protection against human rights
a human being with legal assurances to the demands of its affirmation through the process
that is fair. The creation of the state and the establishment of a state's power
should not reduce the meaning of freedom and of human rights
alone. Therefore, the presence of protection and respect for rights
human rights is a very important pillar in any Country
called the State of the Law in accordance with article 1 paragraph (3) UUD
1945 The State of Indonesia is the State of Law.
33. That based on that description above proves that the provisions
contained in Section 213 of the paragraph (2) letter e, letter h Invite-Invite
Republic of Indonesia Number 27 of 2009 On MPR, DPR, DPD and
DPRD contradictory with the principle of each person entitled to a sense of safety and
protection from the threat of fear to do or do not do something
which is a birthright as protected by Article 28G paragraph (1)
Constitution of 1945.
19
34. That the provisions of Article 12 of the letter g, letter h Invite Republic
Indonesia Number 2 of 2008 About the Political Party entitled to
propose a change between the time of its members in the DPR and the DPRD as well as
the right to propose The representatives of their members in the House and the House of Representatives are
contradictory to the sovereignty of the people in accordance with Article 1 of the paragraph (2) UUD
1945.
35. That the provisions of Article 12 of the letter g, letter h Invite Republic
Indonesia Number 2 of 2008 About the Political Party entitled to
propose a change between the time of its members in the DPR and the DPRD as well as
the right to propose Its members ' stops in the House and the House of Representatives,
The spirit is very well out of Article 1 of the paragraph (2) of the 1945 Constitution which is firmly
states that sovereignty is in the hands of the people and exercised
according to the Basic Law of 1945. It is to point that sovereignty
the highest is just being in the hands of the people not being in the political party.
36. That Article 12 of the letter g, letter h Invite Republic of Indonesia Number
2 Years 2008 On the Political Parties strongly gives
political parties to propose a change between time or better known
with "recall" as well as being granted privileges by the Act to
propose a dismissal of its members in the House. So because of that
above is the right to be given by the Law to the Political parta, then
automatically if a political party is willing then someone can be dismissed
as a member of the House even if it has been chosen by the party. the people with the electoral system
with the most votes.
37. That of Article 12 of the letter g, letter h Invite Republican
Indonesia Number 2 of 2008 About Political Parties is adhering to
sovereignty is in the hands of the political party not in the hands of the people.
Walapun the people who voted with the most votes in accordance with
the electoral system with an open proportional system did not want to
the dismissal of the House of Representatives, but if the political party
to do so will remain in place
as this is set in Article 12 of the letter g, letter h Invite-invite
Republic of Indonesia Year No. 2 of 2008 On Political Parta which
is the right of the political party to dismiss its members who
sit in the House.
20
38. That is thus the provisions of Article 12 of the letter g, the letter h Invite-Invite
The Republic of Indonesia Number 2 of 2008 About the Political Party has
shifting the sovereignty of the people to the political party. This provision is clear-clear
contrary to the provisions of the Basic Law of 1945 which
puts the sovereignty in the hands of the people who have been guaranteed by
Invite-invite. Thus the provisions of Article 12 of the letter g, letter h
Invite-invite the Republic of Indonesia No. 2 Year 2008 About the Party
Politics has been contrary to Article 1 of the paragraph (2) of the 1945 Constitution.
39. That the provisions of Article 12 of the letter g, letter h Invite Republic
Indonesia Number 2 of 2008 About the Political Party entitled to
propose a change between the time of its members in the DPR and the DPRD as well as
the right to propose Membership stops in the House and DPRD,
making members more loyal to their political parties than to
the election and fear of opposing party policy despite
party policy does not reflect. wishes of the people who voted for it
because if not loyal and contrary to the party policy, then
while political party time can dismiss or "recall"
membership in the House, as it is the right of the political party granted
by Law No. 2 of 2008 About the Party Politics.
40. That Article 28G paragraph (1) of the Constitution of 1945 reads: Everyone is entitled to
personal protection, family, honor, dignity, and property
which is under its finances, and is entitled to a sense of safety and protection
of the threat of fear to commit or not to do something that
constitutes a fundamental right.
41. That the norms of the constitution above reflect the principles
human rights that must obtain protection from threats
fears to do or do not do something that is a right
All humans are universal. In the same qualification,
every human being in it is the applicant to date
being a member of the House of Representatives who is charged even his mandatory law to
fight for the rights of the people who have chosen him in the election of the year
2009.
21
42. That as an Indonesian citizen currently a member of the House,
The applicant is entitled to the protection of the threat of fear to commit
or not to do something in accordance with Article 28G of the paragraph (1) of the 1945 Constitution.
43. That the provisions of Article 12 of the letter g, letter h Invite-Republic
Indonesia Number 2 of 2008 On the Political Party have given
a political right to dismiss or that
more commonly known as the " with "recall" against House members at a time without
there is a clear parameter. That such provision is the recording of
to the House members not to voice the popular vote in total
if contrary to party policy lines even if the party policy
is not appropriate to that of the party's policy. The people who chose him. If
at the time the members of the House could be dismissed by a political party then
would have led to a sense of fear for the members of the House to voice the aspirations
the people who have chosen it if it is against the party's obstetrics.
44. That in one case a few moments after retrieval
decisions related to Pansus Hak Angket's handling of the Century Bank case,
where the applicant is different from the policy of the political party that
rises it, where the applicant is It's the people's interest.
The constituencies that he represents. But what happens in some media is good
print media and electronic media appear the threat from the political party
The applicant is to perform "recall". This suggests that if
"recall" represents the threat to the applicant and the political power of the political party
to silence its members who sit as members of the House in
running his duties as a member of the House that should really
fight for/voice the popular vote It's in it.
45. That such a political party is not given the right to propose
a change between time and propose a stop of its members in the House
considering the candidate of the House elected by the people with the electoral system
proportional open with the most votes, so that the members of the House who
are elected to voice the aspirations of the people who have chosen him with
the maximum without any fear of the political party as the time can
dismiss or me-recall if it does not comply with party policy.
46. That in the reality of Article 12 of the letter g, the letter h Invite-Invite
Republic of Indonesia Number 2 of 2008 About the Political Party becomes
22
The terrifying shade for the House members for proposing
the change between time and proposing the dismissal of its members in the House
and the DPRD is the right given by the Act of the Time. -time
those provisions are imposed on House members who are not in line with
party policy lines although party policy does not match the aspirations
the people who have voted.
47. That the Protection of Human Rights in Indonesia is in real a set up
in the 1945 Constitution after the amendment. The explanation is contained in Article 28
Constitution of 1945 So that there is a constitutional protection against human rights
a human being with legal assurances to the demands of its affirmation through the process
that is fair. The creation of the state and the establishment of a state's power
should not reduce the meaning of freedom and of human rights
alone. Therefore, the presence of protection and respect for rights
human rights is a very important pillar in any country
called the State of the Law in accordance with article 1 paragraph (3) UUD
1945 which The State of Indonesia is the State of Law.
48. That based on the description above proves that the provisions
contained in Section 12 of the letter g, letter h Invite-Republic
Indonesia Number 2 of 2008 About Political Parties contradictory to
the principle of each people are entitled to a sense of safety and protection from threats
fears to do or do not do something that is a fundamental right
as protected by Article 28G paragraph (1) of the 1945 Constitution.
49. That based on that description is above, it can be drawn to the conclusion
that Section 213 paragraph (2) letter e, letter h Invite-Republic
Indonesia Number 27 Year 2009 About MPR, DPR, DPD and DPRD as well as
Article 12 of the g, letter h Invite-Invite Republik Indonesia Number 2
In 2008 About the Political Party clearly contradictory to
The opening of the Constitution of 1945 to 2 and 4 as well as contrary to the Constitution
1945 Article 1 paragraph (2), Section 28G paragraph (1).
50. Thus must the provisions of Article 213 paragraph (2) letter e,
letter h Invite-Invite Republik Indonesia Number 27 Year 2009 About
MPR, DPR, DPD and DPRD as well as Section 12 of the letter g, letter h Invite-Invite
Republic Indonesia Number 2 Year 2008 On Political Parties stated
does not have a binding legal force.
23
Based on the descriptions above, the applicant pleads if Mr
Chairman/Vice Chairman and Member of the Assembly of Justice Constitutional Court Rl
prosecute the matter deigned to establish and decide as
following:
1. Accept and grant the applicant's request for the whole;
2. Article 213 paragraph (2) letter e, letter h Invite-Invite
Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD and
DPRD as well as Article 12 of the letter g, letter h Invite-Republic of Indonesia
No. 2 Year 2008 About the Political Party contradictory to the Opening
UUD 1945 alinea to 2 and 4 as well as contrary to the 1945 Constitution Article 1
paragraph (2), Article 28G verse (1).
3. Article 213 paragraph (2) letter e, letter h Invite-Invite
Republic of Indonesia No. 27 Year 2009 About MPR, DPR, DPD and
DPRD as well as Article 12 of the letter g, letter h Invite-Republic of Indonesia
No. 2 Year 2008 About the Political Party does not have a legal force
binding;
4. Ordering the loading of this ruling in the Republic of Indonesia News
as it should be;
Or If the Assembly of Justice of the Constitutional Court of the Republic of Indonesia
opts another request for a ruling that is fair.
[2.2] Draw that to strengthen the controls, the applicant has submitted
a written proof tool given the Proof of P-1 until the P-20 Proof was passed
in front of the trial on 22 July 2010, as follows:
1. Proof P-1: Photocopy Of The Republic Of The Republic Of The Republic
Indonesia In 1945;
2. Evidence P-2: Photocopy Invite-Invite Republik Indonesia Number
27 Tahun 2009 About MPR, DPR, DPD and DPRD;
3. Evidence P-3: Photocopy Invite-Invite Republik Indonesia Number 2
In 2008 About The Political Party;
4. Evidence P-4: Photocopy clipping of the Daily News second edition of News March 4, 2010;
5. Evidence P-5: Photocopy of the okezone newspaper clippings on March 4, 2010;
6. Evidence P-6: Photocopy of the okezone newspaper clippings dated 4 March 2010;
24
7. Evidence P-7: Photocopy clipping Free Sound newspaper dated 04 March
2010;
8. Evidence P-8: Photocopy clipping from Wibsite DPP PKB dated 07 May
2010;
9. Proof P-9: Photocopy clippings of Wibsite DPP PKB dated 04 May
2010;
10. Evidence P-10: Photocopy of Indonesia's newspaper clippings of 5 March
2010;
11. Evidence P-11: Photocopy of the Indo Post newspaper clippings on March 5, 2010.
12. Evidence P-12: Photocopy of Indonesia's newspaper clippings on 8 March
2010;
13. Proof P-13: Photocopy of the Free People's newspaper clippings on March 5,
2010;
14. Evidence P-14: Photocopy of Kompasana newspaper clippings dated 4 March
2010;
15. Evidence P-15: Photocopy Presidential Decree Of The Republic Of Indonesia Number
70 /P Year 2009 About The Hj Rapture. Lili
Chadidjah Wahid as a member of the DPR RI period 2009-
2014;
16. Proof of P-16: Photocopied a vote of 40,027 votes in
during the Legislative Elections;
17. Proof P-17: Photocopy of the PKB Fraction lineup and placement
on the Commission;
18. Proof P-18: Photocopy Of The People's Representative Council On
Order Of Order;
19. Evidence P-19: Photocopy AD/ ART PKB;
20. Evidence P-20: Photocopied a statement of support to remain
Member of the House of RI until the end of his term of the dapil;
[2.3] A draw that the DPR RI dated February 24, 2011 gave the caption
written that on his point as follows:
A. Article Law No. 27 of 2009 on MPR, DPR,
DPD, AND DPRD and Act No. 2 of 2008 On Party
Politics are being asked for testing against the State of the Republic of Indonesia
In 1945.
25
The applicant in his application submitted the testing of Section 213
paragraph (2) letter e, and the letter h Act Number 27 of 2009 on MPR, DPR,
DPD, and DPRD, and Section 12 of the letter g and letter h Act No. 2 Year 2008
about the Political Party against the Republic of Indonesia's Republic of Indonesia in 1945
that is:
Article 213 paragraph (2) letter e and letter h Law Number 27 of 2009 reads:
The House of Representatives is dismissed between time as referred to in paragraph (1)
letter c, if:
e. proposed by its political party in accordance with the perinvite regulations-
the invitation.
h. dismissed as a member of the political party in accordance with the provisions
legislation.
Article 12 of the g and the letter h Act No. 2 of 2008 reads:
The Political Party is entitled to:
g. suggest a change between its member time in the House of Representatives
People and the Regional People's Representative Council in accordance with regulations
negotiations;
h. proposed the removal of its members in the People's Representative Council and
The Regional Council of People's Evangelicalation in accordance with the perinvite regulations-
the invitation.
The provisions of Article 213 paragraph (2) letter e and letter h Law No. 27 Year
2009 as well as section 12 of the letter g and the second letter h 2 Year 2008,
according to the applicant potentially harms its constitutional rights and is considered
contrary to the Opening of the State of the Republic of Indonesia of the Year
1945 2nd alinia and 4th alinia, Article 1 of the paragraph (2), and Article 28G paragraph (1) of the Constitution
The State of the Republic of Indonesia in 1945.
As for the contents of the section is as follows:
Article 1 of the paragraph (2) of the Republic of Indonesia's Republic of Indonesia 1945: " Sovereignty is in the hands of the people and exercised according to the Invite-
Invite Base "
26
Article 28G paragraph (1) UUD of the Republic of Indonesia in 1945: " Everyone is entitled to personal protection, family, honor,
Dignity, and the property of the understatement her power, as well as entitled to
the safe and protection of the threat of fear to do or not
do something that is a birthright ".
B. RIGHTS AND/OR CONSTITUTIONAL AUTHORITY DEEMEDAPPLICANTS ARE HARMED BY THE ENACTMENT OF ARTICLE 213 OF THE PARAGRAPH (2) LETTER E AND THE LETTER H STATUTE 27 IN 2009 ABOUT MPR, DPR, DPD AND THE DPRD AND ARTICLES 12 OF THE LETTER G AND THE LETTER H LAW NUMBER 2 OF 2008 ON POLITICAL PARTIES. (TO FURTHER BE CALLED Law NUMBER 27 IN 2009 AND UU NUMBER 2 IN 2008).
The applicant in the a quo plea, posits that the right
its constitutionality has been harmed and violated by the enactment of Article 213 of the paragraph (20 letters e and the letter h Law Number 27 of 2009 as well as Article 12 of the g and the letter h Act No. 2 Year 2008 against the United States Constitution of the Republic of Indonesia in 1945, which is at its bottom as follows:
1. That according to the applicant, the selection of the applicant as a member of the House of Indonesia
in the 2009 election that implemented the proportional voting system
open with the application of the most votes and the applicant in the Election
it gained the support the most votes so that by the KPU
is set to be a member of the House of RI elected, and with the election
The applicant puts the sovereignty completely in the hands of the people
in accordance with Article 1 of the paragraph (2) of the 1945 Constitution (vide: Plea stuff 3 numbers
5);
2. That the applicant postulate, with the implementation of Article 213 (2)
the letter e and the letter h Act No. 27 of 2009 and Section 12 of the letter g and
letter h Law No. 2 of 2008, constitutional rights and authority
The applicant was harmed and The applicant is very interested because of the provision
that any time can be enforced or experienced by the applicant
who is currently a Member of the House of RI if the political party intends to
be made a stop between time or common known as
'recall' by the political party, though The applicant with the system
elections by using the most votes put
27
sovereignty is in the hands of the people according to MK Putermination Number 22-
24 /PUU-VI/2008 (vide: Plea of 4 figure 7);
3. That in a a quo applicant assumes that Article 213
paragraph (2) of the letter e and letter h Law Number 27 of 2009 strongly gives
privileges to the political party to propose interchange
time or Better known as 'recall', and given
special authority by Act a quo to dismiss someone
as Member of the House RI as the title of Article 213 paragraph (2) is
" Member of the House of RI Dismissed from time to time. So automatically the person
being dismissed as a member of the political party will automatically
be dismissed as a Member of the House of RI.(vide: Plea of 11 figure 8);
4. That thus the provisions of Article 213 paragraph (2) of the letter e, letter h Act
No. 27 of 2009 have shifted the sovereignty of the people to the party
politics. These provisions are clearly contrary to the provisions of the 1945 Constitution
which Putting sovereignty is in the hands of the people who have been guaranteed
by the Act. Thus the provisions of Article 213 paragraph (2) of the letter e, letter h Act
No. 27 of 2009 have been in conflict with Article 1 of the paragraph (2) of the Constitution
1945.
C. The Republic of Representatives. That of the applicant ' s dalil-dalil as described in
a request, on this occasion the DPR RI is in delivery
his views first outline the legal position
(legal standing) can be described as follows:
1. Legal Position (Legal Standing) the applicant.
In accordance with the provisions of Article 51 of the paragraph (1) Act Number
24 of 2003 on the Constitutional Court (hereafter called the MK Act),
states that the applicant is Party which considers the right
and/or its constitutional authority be harmed by the expiring
Act, namely:
a. Individual citizens 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 Unity State
The Republic of Indonesia that is governed in the Invite-Invite;
c. Public or private legal entities; or
28
d. State Institute.
In the description of Article 51 of the paragraph (1) it is stated that
referred to The Constitutional Right is the rights set
in the Constitution of the Republic of the Republic of Indonesia Year 1945.
This means that only rights are explicitly set in
The Constitution of the Republic of Indonesia in 1945 which included "rights
constitutional". Therefore, according to the MK Act, so that someone or a party
may be accepted as the Applicant Party with the legal position
(legal standing) in the Act of Testing against
Constitution The Republic of Indonesia in 1945, first had to
explain and prove it:
a. the rights and/or its constitutional authority as
referred to "Article 51 of the paragraph (1) and the Explanation Of The Constitution Of The Constitutional Court" which he considers to have been harmed by the enactment of an Act of testing;
b. the rights and/or constitutional authority of the applicant as
as a result of the enactment of the Act, which is required to test.
That regarding the limitations on constitutional harm,
The Constitutional Court has given you an understanding and The limitations of
the constitutional loss arising out of an invitation-
Invite under Section 51 of the paragraph (1) MK Act, must meet 5 (five)
terms (vide of the Decision Number 006 /PUU-III/2005 and Putermination
Case Number 011 /PUU-V/2007), which is as follows:
a. the rights and/or constitutional authority of the applicant
provided by the Constitution of the Republic of Indonesia in 1945;
b. the right and/or constitutional authority of the applicant is considered
by the applicant has been harmed by a moiged Act
testing;
c. The intended constitutional loss is specific
(special) and actual or at least potentially potential that
reasonable reasoning could be certain to occur;
d. (casual verband) link between the loss and
the enactment of the Act is being tested;
29
e. It is possible that with the request of a request then
the constitutional loss postured will not or no longer occur.
If the five terms are not met by the applicant in
the case of testing the Act a quo, then the applicant has no qualifications
legal standing (legal standing) as the Applicant Party.
Responded to the applicant, the House of Representatives view that
although the applicant has qualifications as a subject the law in
the second testing application of the a quo Act pursuant to Article 51 paragraph (1) Act Number
24 Years 2003 on Constitutional Court, but it needs to be proven
long ago the constitutional rights of the applicant who had been real aggrieved and
could potentially inflict a loss with the enactment of Article 213 of the paragraph (2)
letter e and letter h Law Number 27 of 2009 and Section 12 of the letter g and
letter h Act No. 2 of 2008 in conflict with Article 1 of the paragraph
(2), Article 28G paragraph (1) of the Constitution of 1945, DPR RI views as
following:
1. That the applicant in the request a quo suggests, that
the petitioner submitted judicial review Act a quo, is
the current individual personal action of the House Member,
not as a Member of the House. The House. Further stated by the applicant,
that while currently the applicant is a Member of the House, it is the right
individual applicant as WNI to submit judicial review Act a
quo against the Republican State Constitution Indonesia Year 1945 is not
missing, this according to the applicant is determined in the State Constitution
The Republic of Indonesia in 1945 where there is not a single article
governs that a person becomes a Member of the House of constitutional rights
individual missing to submit judicial review legislation a quo against
The Constitution of the Republic of Indonesia in 1945 in the Constitutional Court,
and also not a single ruling of the Constitutional Court which
expressly states that the person who is a Member of the House of Representatives
constituticial the individual. missing to submit a judicial review Act a
quo against the UUD State of Indonesia Year 1945.
2. That of the applicant's control, the House of Representatives view that
although the applicant postulate his actions to file judicial
review Act a quo against the Constitution of the Republic of Indonesia in 1945
30
as the personal person of the WNI is not as a Member of the House, the dalil
is not appropriate. That it needs to be understood by the applicant, that
the applicant ' s concern will be recall of the House Member for his actions
that is different to his party policy related to the investigation
the century case as postured The applicant, is not
solely concerning the interests and position of personal law
of the WNI, but instead the subject matter is closely related
which cannot be separated from the applicant's legal position
is currently still a Member of the House. Therefore, against that
, the House of Representatives view that the applicant's legal position
as the personal person of the WNI in the application of the a
quo
, is absolutely inseparable with the positionthe law of the applicant as a Member of the House. With a demiki an, the applicant
in the plea a quo, its legal position is to remain as
Representative. Since the applicant remains a law
as a Member of the House, then if associated with the requirements
legal standing (legal standing) the applicant, then certainly necessary
is distinguished between the rights and/or the constitutional authority individual
WNI with a WNI person who is based as a Member
DPR.
3. It is true that the applicant describes no one section
firmly set a person to be a Member of the House of rights
The individual constitutional is missing to submit judicial review Act a
quo against The Constitution of the Republic of Indonesia in 1945, and also
no one ruling from the Constitutional Court explicitly
states that the person who is the Member of the House of constitutionality
The individual is missing to apply. judicial review legislation a quo against
UUD State of the Republic of Indonesia Year 1945. Because according to
the House of Representatives is indeed the right and/or the constitutional authority of the WNI
it is clearly different to the rights and/or the constitutional authority of the Member
DPR in the Constitution of the Republic of Indonesia in 1945. Given
The applicant is a Member of the House, then the rights and/or authority
the constitutional applicant is as set out in Section 20A
paragraph (3) and Article 21 of the State of the Republic of Indonesia of Indonesia in 1945.
31
4. That related to the legal position of the applicant currently still
as a Member of the House, it has been granted constitutional rights in Article
21 UUD of the Republic of Indonesia in 1945 to submit
the bill. Therefore, the request for the a quo trial is postured
The applicant currently still as the DPR Member is not appropriate, but
is more appropriate and based on the applicant who is still active as
Member of the period 2009-2014 submitted a legislative review
in the House, not a judicial review plea legislation to
The Constitutional Court.
5. That is related to the legal standing (legal standing) The applicant
also as a Member of the House in the plea a quo, the House views
it is necessary to refer to some of the Constitutional Court of Justice which
relates to The legal standing (legal standing) as
the individual WNI and as a member of the House is the following:
a. Constitutional Court Decree Number 20 /PUU-V/2007 concerning
Testing Act No. 22 of 2001 on Petroleum and Earth Gas,
in the laws of the Court of Justice page 98 the fourth paragraph
states; " ... The Court argued that the applicant
as a member of the WNI acting as a Member of the House
does not meet the qualifications as provisions Section 51
paragraph (1) of the letter of MK Act, "
and/or constitutional authority as postured
The petitioners. Thus the applicant is not
has a legal standing (legal standing) as
The applicant is in the application of a test of a quo ". B. The Constitutional Court Number 20 /PUU-V/2007 is stated
" That it has been real that the substance of the issue in
the application of a quo is a matter of legislative review, not
judicial Review. Because the applicant is based
Member of the House in accordance with the provisions of Article 21 of the Republic State Constitution
In 1945, the Speaker of the House of Representatives is entitled
The proposal for change to the law of the law. Right
is thus not owned by the non-human WNI
32
A Member of the House. It is at once assertive that
understanding "individual WNI" in Article 51 of the paragraph (1) letter a Act
MK is not as determined by the Applicant ".
c. Constitutional Court Decree Number 151 /PUU-VII/2009 in
page Court opinion 84 states: " That is related
with the position/position of the applicant as a member of the House,
according to The Court, in which the applicant is also adhered to rights
the constitutional distinction of the applicant with citizens
the other Indonesian state. The Court as in
s Number 20 /PUU-V/2007 to date still
establishing that understanding "individual citizens
Indonesia" in Article 51 of paragraph (1) letter of the MK Act Not the same
with an Indonesian citizen based
House member, ... " Based on that description, the House of view that the applicant is not
has a legal standing (legal standing) for not meeting the provisions
Article 51 of the paragraph (1) letter of the MK Act, thus it is duly appropriate if
The Supreme Court of Justice of the Supreme Constitutional Court
declaring the Applicant was declared unacceptable (niet
ontvankelijk verklaard).
Nevertheless if the Assembly of Justice of the Constitutional Court argued
another, jointly presented the House of Representatives for testing
the materiel of Article 213 paragraph (2) letter e, letter h Law Number 27 of the Year 2009 and
Article 12 of the g, letter h Act No. 2 of 2008.
2. Materiel testing of Section 213 paragraph (2) letter e, letter h Law Number 27
Year 2009 as well as Section 12 of the letter g, letter h Act No. 2 of 2008.
The petitioners in the a quopetition, posited that the right
constitutionality has been harmed or at least a potential
will incur losses by the enactment of Article 213 verse (2) letter e, letter h Law No. 27 Year 2009 as well as Article 12 of the g, letter h Act Number
2 Year 2008, according to the Applicant provisions section a quo violates
the constitutional right of the Applicant to obtain legal certainty,
so that this are considered to be contrary to Article 1 of the paragraph (2) and the Article
28G paragraph (1) of the State of the Republic 1945-1945.
33
Against the applicant's control as described in the application
quo, on this occasion the DPR conveiers the explanation/captions
as follows:
1. That the DPR does not agree with the petitioner's control
states, " that by doing so Section 213 the paragraph (2) of the letter e
and the letter h Law Number 27 Tahun2009, and Section 12 of the letter g and the letter h
Act No. 2 Year 2008, rights and/or constitutional authority
The applicant is severely affected because
those provisions can at any time be enforced or experienced by
the applicant who is currently being a Member of the House if the political party
wants it to It's an intertime stop or an
commonly known as "recall" by a political party. " (vide: plea of a quo
figure 7 things. 4). Against the applicant, the House of Representatives views
that the applicant's postulate is merely a concern
the applicant currently becomes a Member of the House at any time
"recall" by the political party. because it is not as clear as the party policy
politics, when what is concerned and feared by the applicant alike
once did not match the real facts. The applicant
The applicant is revealed in the request of the applicant a quo
in which
(s) stated, " that in one instance the related case
decision-making Pansus Hak Angket case handling case,
where the applicant is in different terms with the policy of the political party
obey it. However, what happened in some print media and
electronic appears a threat from the applicant's political party for
doing "recall". (vide: Plea for 15 things. 13).
2. That the petitioner is in the 27-point plea. 18 which in
pocigarettes stated, " that the provision is
The recording of the applicant who is the Member of the House for not
votes the people's voice in total if contrary to the line
party policy despite party policy does not match the wishes
the people who have chosen it. If a Member of the House can
be dismissed by a political party as a Member of the House then
raises the fear of the applicant who is a Member of the House for
34
voices the aspirations of the people who have chosen it if it contradictory
with the party policy ", is solely the perception of self
The unsubstantiated course of its own.
For precisely what is doneby the applicant in voicing the people's aspirations is protected by the Act
No. 27 of 2009, in the exercise of its obligations as
Representative of the House as a representative of the people as it is in the I swear, a member of the House of Representatives is said to be spoken before I have a post. This
is set up in Article 75 and Section 76 as well as Article 79 of Law No. 27 Year
2009. "The House of Representatives": "The House of Representatives".
" For God's sake (God) I swear to:
that I, will fulfill my obligations as a member/representative
chairman of the House of Representatives is as good and as fair-
be fair, accordingly with laws, with
guidelines on Pancasila and the Constitution of the Republic of the Republic
Indonesia In 1945;
that I am in the running of obligations will work with really-
really, for the sake of the democratic life, as well as priorite
the interests of the nation and the State rather than personal interests,
a person, and group;
that I will fight for the aspirations of the people I represent for
embodied the national goal for the sake of the people.
the nation and the Nation's interests
Unity of the Republic of Indonesia. "
The membership of the House of Representatives is governed as well in Article 79 of the letter b and the letter d
Act No. 27 Year 2009 which reads: (b) " House Members have
The obligation to carry out the Constitution of the Republic of Indonesia Year 1945
and obey the rules of the negotiations; " and the letter d, which
reads: " DPR members have a duty of precede
the interests of the country above the personal, group, and
group of interests.
3. That the House of Representatives is in view, unsubstantiated the applicant's
postulate that the applicant as a Member of the House is threatened in "recall"
related to the political stance of the applicant in contrast to the policy
which is gared the party Politics is related to decision making.
35
Pansus Rights Angket in the Century case handling, due to the applicant
as a Member of the House in addition to being protected Article 75, Section 76 and Section 196
Act No. 27 of 2009 in carrying out obligations
its constitutionality, also protected by the provisions of Article 196 paragraph (1), paragraph
(2) and paragraph (3) Act No. 27 of 2009 on MPR, DPR, DPD and
DPRD it reads:
(1) The House Member has immunity rights;
(2) The DPR member cannot be prosecuted in front of the court because
statement, statement, and/or opinions that are driven
both orally and in the House meeting or outside
House meeting with regard to function and duty and authority
DPR;
(3) The DPR Member may not be reimbursed for the time because of the statement,
and/or opinions that are driven both in the House meeting
and outside the House meeting with respect to the function as well as the task
and House authorization.
4. That the DPR does not agree with the petitioner of the applicant
postulate, " that the provisions of Article 12 of the letter g and the letter h Act No. 2
In 2008 were entitled to propose a change between time
its members in the The DPR and the DPRD have the right to propose stops
members in the House and DPRD, making the members more loyal
to his political party than to his election and fear
contrary to the party policy, which is this by the applicant
on the budget has shifted the sovereignty of the people to the sovereignty
political party ". Against the applicant, House of view
that the provisions of Article 12 of the letter g and the letter h Act No. 2 of 2008
clearly and firmly that the political party is good In proposing a change
between the time its members in the House and the DPRD and in proposing
the stops of its members in the House and the DPRD should conform to
the laws. This means, that if associated
with the subject of the applicant ' s appeal
The applicant as a Member of the House is threatened at "recall" by his political party
due to his political stance contrary to the policy that
is lined up by its political party, then under the provisions of Article 196 of the paragraph
36
(3) Act No. 27 of 2009, the applicant as a Member of the House
is guaranteed not to be reimbursed between times due to statements, and/or
opinions that are driven both in the House meeting and Outside
House meetings related to the function and duties and authority of the House,
as for the political stance of the applicant in the plea a quo. With
so the political party in exercising that right must be
in accordance with the laws, so that the subject
the applicant request As the postued does not exist
its relevance to sovereignty is in the hands of the people, hence
provisions of Article 213 paragraph (2) the letter e and the letter h Law Number 27 Year
2009, as well as Article 12 of the letter g and the letter h Act Number 2 2008 is not
can be disputed with Article 1 of the paragraph (2) of the Republic of the Republic of Indonesia
Indonesia Year 1945.
5. That the "recall" threat to the Members of the House
as set out in the provisions of Article 196 Act No. 27 Year
2009, then it is unfounded if the provisions of Article 213 paragraph (2)
letter e and letter h Act Number 27 of 2009, as well as Article 12 of the letter g and
letter h Act No. 2 of 2008 were contested under Article 28 G verse
(1) Constitution of the Republic of Indonesia in 1945.
6. That was also the opening of the UUD Republik Indonesia Tahun
1945 2nd and 4th alinia as the test stone by the applicant,
according to the DPR is highly unfounded. Because, the subject of the application
as the applicant is postulate there is no
its relevance to the 2nd alinia and the 4th alinia the Opening of the State Constitution
Republic of Indonesia of 1945.
That under control, the House of Representatives view that the section 213 paragraph (2) the letter e and the letter h Act No. 27 of 2009 on MPR,
DPR, DPD, and DPRD, as well as Section 12 of the letter g and letter h Act No. 2 Year
2008 about the Political Party does not conflict with the Opening of the State Constitution
Republic of Indonesia in 1945 2nd and 4th alinia, Article 1 of the paragraph (2) and
Article 28G paragraph (1) of the Constitution of the Republic of Indonesia in 1945.
That based on the view of the DPR RI, the DPR RI implores
if the Assembly of Justice of the Constitution gives an amar the verdict as follows:
37
1. The applicant a quo does not have a legal position (legal standing),
so that the a quo request should be declared unacceptable (niet
ontvankelijk verklaard);
2. Stating that a quo was rejected for the whole or at least
certifiable a quo could not be accepted;
3. Article 213 paragraph (2) of the letter e and letter h Law No. 27 of 2009
on MPR, DPR, DPD, and DPRD, as well as Article 12 of the letter g, letter h Act No. 2
The 2008 political party does not conflict with the Opening of the Constitution
The State of the Republic of Indonesia in 1945 the 2nd and 4th alinia, Article 1 of the paragraph (2)
and Article 28G paragraph (1) of the State of Indonesia in 1945;
4. Stating Section 213 paragraph (2) letter e and letter h Law No. 27 Year 2009
on MPR, DPR, DPD, and DPRD, as well as Article 12 of the letter g and letter h Act
No. 2 Year 2008 on the Political Party remains the legal force
binding.
[2.4] weighed that to shorten the description in this ruling, all
something that happened at the trial was quite appointed in the news of the event
the trial, which is an integral one with
This verdict.
3. LEGAL CONSIDERATIONS
[3.1] Draw that the main issue of the applicant's plea
is to test the constitutionality of Article 213 of the paragraph (2) of the letter e and the letter h Invite-
Invite Number 27 Year 2009 about the Assembly People's Consultative Assembly, Council
People's Representative, Regional Representative Council and People's Representative Council
Regions (Sheet State Of Indonesia In 2009 Number 123,
Additional Sheet Of State Republic Of Indonesia Number 5043, next called
Act 27/2009) as well as Article 12 of the letter g and the letter h Act Number 2 Year
2008 on Political Parties (sheet of State of Indonesia 2008
number 2, Additional leaf country number 4801 Next is called Act
2/2008) against Article 1 of the paragraph (2) and Article 28G paragraph (1) of the Basic Law
The State of the Republic of Indonesia in 1945 (later called UUD 1945);
38
[3.2] A draw that before considering the subject's subject,
The Constitutional Court (subsequently called the Court) would first
consider:
a. The Court's authority to examine, prosecute, and disconnect
a request a quo; and
b. (legal standing) Applicant;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] weighed that according to Article 24C of the paragraph (1) of the 1945 Constitution and Article 10
paragraph (1) letter a Law Number 24 of 2003 on the Court
Constitution (State Gazette of the Republic of Indonesia 2003 No. 98,
Additional leaf of the Republic of Indonesia Number 4316, further called
Law MK) juncto Article 29 paragraph (1) letter a Law Number 48 Year 2009
about Power
2009 number 157, additional Gazette of the Republic of Indonesia No. 5076),
The court of competent authorities tried on the first and final level which
The verdict was final between other to test the Act against the Constitution
1945;
[3.4] Draw that the applicant's plea is testing
the constitutionality of the norm Section 213 paragraph (2) the letter e and the letter h 27/2009 and Section 12 of the g, and letter h Act 2/2008 against Section 1 paragraph (2) and
Article 28G paragraph (1) of the 1945 Constitution, so that by Therefore, the Court of Justice
to examine, prosecute, and discontinue a quo;
The Occupation of Law (Legal Standing) The applicant
[3.5] A draw that under Article 51 of the paragraph (1) MK Act, which can be
applying for an Act testing against the Constitution of 1945 is
those who consider the rights and/or its constitutional authority that
granted by the 1945 Constitution are harmed by the enactment of an Act, namely:
A. Individuals in Indonesia (including groups of people
have common interests);
39
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;
That the applicant is an individual citizen of Indonesia who was a member of the DPR RI Election results 2009 for the period 2009-2014 appropriate
with the Presidential Decree No. 70 /P of the Year 2009 set to
September 15, 2009 and currently entered as Member of the Commission I
drugging the Defence, Kominfo and Foreign Affairs with member Number A-160
in accordance with the decision of the PKB Fraction Number X.A. 040/FPKB/DPR-RI/X/2009,
dated October 19, 2009;
That the applicant ' s actions submitted Testing Section 213 paragraph (2) of the letter
e and letter h Act 27/2009 as well as Section 12 of the letter g and letter h Act 2/2008 are
the personal actions of the individual citizens of Indonesia which currently are
members of the House and not as members of the House;
[3.6] Weighed Also that the Court since the Constitutional Court's Decree
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, establish that loss of rights and/or authority
constitutional as intended Article 51 of the paragraph (1) of the MK Act 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. (causal verband) link between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that by the request of the application,
The constitutional losses such as the postured will not or are no longer occurred;
40
[3.7] weighed that the applicant as a citizen currently
a member of the House of RI in the field has a constitutional right to be
set in the 1945 Constitution, namely:
Article 1 of the paragraph (2) states, "Sovereignty is in the hands of the people and exercised according to the Basic Law".
Article 28G verse (1) states, " Everyone is entitled to personal protection, family, honor, dignity, and property under its authority, and entitled to safe sense and protection from the threat of fear to To do or do not do what is right. "
According to its constitutional rights applicant it has been harmed by
the enactment of the provisions of Article 213 paragraph (2) of the letter e and the letter h Act 27/2009 which
states:
" (2) The DPR members are dismissed between time In the case of a paragraph (1) of the letter c, if: e. proposed by its political party in accordance with the perinvite regulations-
the invitation. h. dismissed as a member of the political party in accordance with the provisions
laws ".
and the provisions of Article 12 of the letter g and the letter h Act 2/2008 that stated:
" The political party is entitled: g. suggest a change between the time of its members in the People's Representative Council
and the Regional People's Representative Council in accordance with the invitational regulations.
h. proposed the dismissal of its members in the People's Representative Council and the Regional People's Representative Council in accordance with the rules of the invitation-invite ".
[3.8] Draw that the applicant postulate with the provision
Section 213 paragraph (2) of the letter e and the letter h 27/2009 as well as Section 12 of the letter g and
letter h Act 2/2008 has harmed the applicant because of the provisions of the time-
time can be enforced or experienced by the applicant currently being
a member of the House if the political party intends to do a replacement
between time or the general known as "recall" by the party politics, though
the selection of the applicant based on the electoral system.
The most and place sovereignty is in the hands of the people.
41
[3.9] A draw that is related to the legal position (legal standing)
The applicant as an individual citizen of Indonesia whose seat/
office as a member of the House, The Court first posited
its stance as considered in previous rulings,
that of the Number 20 /PUU-V/2007, dated December 17, 2007, and
Putermination Number 151 /PUU-VII/2009, dated 3 June 2010. In the a quo ruling,
The ruling court that House members do not have legal standing
(legal standing) to apply for testing Act to
before the Court with the underlying reason that "Personal information
Indonesian citizens" in Article 51 of the letter (1) the letter of the MK law is not the same
with Indonesian citizens as members of the House, because
the individual citizen of Indonesia is based on the " As a member of the House
does not have the constitutional right to be base or Control of the right
constitutional rights in Article 11 of the paragraph (2) and
Article 20A paragraph (1) of the 1945 Constitution. According to the Court if a member of the House of Representatives would
file an annulment on the contents of the law in question could
use its position to submit a change (legislative review).
UUD 1945 has explicitly defined constitutional rights for
citizens of Indonesia, House members, and DPR as institutions;
[3.10] Draw that according to the Court, the applicant is in plea
a quo meeting qualifying as an Indonesian individual because
as a member of the House, the applicant is potentially harmed in its constitutional rights by
the enactment of Article 213 paragraph (2) of the letter e and the letter h Act 27/2009 and Article 12
the letter g and the letter h Act 2/2008, as those provisions would be the basis
by the political party to dismiss the applicant as a member of the House.
The use of political party authority to do PAW over party members
politics in case a quo can be judged to violate the applicant ' s constitutional right
that is the right only to be owned by members of the House and not
are owned by the other party. In the ruling of the Court No. 23-26/PUU-VIII/2010,
dated January 12, 2011 House members whose exclusive rights as deputies
people were harmed by the enactment of an Act according to the Court
has a legal position (legal standing) to apply for
testing of the Act. Therefore, in a prime facie
42
The applicant has a legal standing (legal standing) to submit
application a quo;
[3.11] Draw that by the case the court is checking,
prosecuting, and Cut off a quo and the applicant has a position
law (legal standing), next the Court will consider the subject
plea;
Court opinion
Subject to the plea
[3.12] Draw that before considering the subject matter,
under the provisions of Article 54 of the MK Act that states, " Constitutional Court
may request the captions and/or meeting treatises with respect to
the application is being examined to the Assembly. The People's Consultative Assembly,
DPR, Regional Representative Council, and/or President ", The court does not have to
to hear the statements of the House, DPD, and/or the President in conducting testing
over an Act. Since the legal position is regrettable in
the application is clear and in the case a quo the Constitutional Court is already
once broken in the Decree No. 008 /PUU-IV/2006, dated 28
September 2006 and already The jurisprudence is then in check
The request of the applicant, the Court sees not to hear
the statement of the House of Representatives and the President's description, so
The Court directly breaks the case a quo;
[3.13] Weigh in that even though the House of Representatives delivers
captions written by a letter dated February 24, 2011, but because
The court has specified the opinion as described in paragraph
[3.12], then the contents of the written description are not considered;
[3.14] Considering that the applicant is testing
the constitutionality of Article 213 paragraph (2) of the letter e and the letter h 27/2009 as well as Article 12 of the letter g and the letter h Act 2/2008 against Article 1 of the paragraph (2) and Section 28G
paragraph (1) of the 1945 Constitution;
43
Section 213 of the paragraph (2) letter e and letter h 27/2009 stated:
" (2) Members of the House are terminated intertime as referred to in paragraph (1) the letter c, if: e. proposed by its political party in accordance with the perinvite regulations-
the invitation. h. dismissed as a member of the political party in accordance with the provisions
regulations laws ".
As for the provisions of Article 12 of the g and the letter h Act 2/2008 stated:
" Political Parties are entitled to: g. suggest a change between its members ' time in the People's Representative Council
and the Regional People's Representative Council in accordance with the rules of invitation.
h. proposed the dismissal of its members in the People's Representative Council and the Regional House of Representatives in accordance with the rules of the invitation-invite ".
[3.15] Draw that the Applicant in the sole postulate of Article 213 paragraph
(2) the letter e and the letter h Act 27/2009 as well as Article 12 of the letter g and letter h Act
2/2008 that entitles a political party to propose
removal of House members who violate the constitutional right of the applicant,
because of that provision any time can be enforced or experienced by
The applicant currently becomes a member of the House, which is if the political party
wants an intertime switch or is commonly known as "recall"
when it is selected The applicant as a member of the House based on the electoral system
that uses the most votes and puts sovereignty in
the people's hands;
[3.16] It is balanced that to strengthen the control, the applicant proposes
The written evidence, the evidence of P-1 to the Evidence P-20;
[3.17] Stated that after the Court examined with the Saksama dalil
The applicant and the proof of the applicant, the Court argued as
following:
[3.17.1] That freedom expressed opinions as well as freedom of assembly
and the union have been guaranteed both in the constitution of democratic countries in
the world, nor in various international legal instruments. The political party
is one of the forms of the organization as an exercise of freedom.
44
issued an opinion as well as the right of assembly and union. In the country
political party democracy plays (functioning), among others as: (i) means
reciprocity link between Government and people, (ii) the main culprit in
blending (aggregating) various interests, (iii) The front-runner in
made a fundamental change in the state, (iv) the place of recruiting candidates
political leaders, (v) means of political education, and (vi) a mobilizing institution
voters to participate in the general election and The choice. Because
a very large role in the political system, the existence of a political party
as political infrastructure is an inevitability in the country of representative democracy, so the political party must be continue
empowered (empowering) to be able to execute the role and function
well;
[3.17.2] That the desire to empower political parties has been reflected
in the Change of the Constitution of 1945 with its canvability various provisions that
relating to political parties, among other things, in Article 6A paragraph (2), Section 8 of the paragraph
(3), and Article 22E of the paragraph (3). One effort in order to empower
the political party is to give the party the right or authority
the politics to bring down the action in upholding the discipline of the
its members, in order for members to behave and act does not deviate, let alone
contrary to the Basic Budget/Household Budget (AD), as well as
the wisdom, and the work program outlined by the political party
concerned. This is the logical consequence of a person who is
a member of an organization, in this case the organization of a political party. Discipline enforcement
the party is very decisive in realizing the party ' s work program that has been
offered by such political parties in the general election campaign. In addition to
that, party discipline is also very necessary in building and establishing
party traditions. Notwithstanding the political party's authority to perform
the disciplinary action of its members must be governed in the Invite-
Invite and related laws according to the principle
democracy and the law (nomocracy). In relation to this Act 2/2008 has set up the
that is, in principle the norms governing the act
the discipline of members of the political party, including members of the political party
to be a member of the House, It's not against the Constitution More than that,
45
Article 22B of the 1945 Constitution allows the dismissal of the House member from
in office whose terms and rules are set in Undang-Undang;
[3.17.3] That concerning the same substance, namely,
(PAW) by the political party, the Court never breaks (vide Putermination Number
008 /PUU-IV/2006, dated September 28, 2006) that PAW because
revocation of membership of the political party for members of the DPR/DPRD it ' s legitimate and
constitutional as a political party right. The consideration was, among other things, because
according to Article 22E paragraph (3) of the Constitution of 1945, Election participants for the members of the DPR/DPRD
it is a political party. Because Election participants for members of the DPR/DPRD
are a political party and nobody can be a member of the DPR/DPRD without
through the political party then it becomes reasonable and proportionate if the political party is granted
authority to do PAW over its members who served in the House. In addition to
it is in everyday political activity (day to day politics) provisions about
the authority of PAW for this political party is indeed being weakened. Based on
historical experience when a political party is authorized to do PAW then
such authority may be used by the political party leadership to
silence the members of the DPR/DPRD so that it is his duty as a shepherd.
people ' s aspirations become blunt and ineffective because there is a recall threat,
instead based on historical experience anyway when the political party is not given
the authority to do PAW, many members of the DPR/DPRD conducting
violations, both legal and ethical, without being able to be repressed directly by
the political parties concerned so that the concerned could damage the image,
not only the image of the political party concerned but also the image
DPR/DPRD in which concerned served as a representative people.
Based on that then the Court remains on its stance that the party
political authorities do PAW for its members who serve as
members of the DPR/DPRD based on the provisions set up in the Invite-
Invite (vide Article 22B UUD 1945) as well as those set in AD/ART party
politics is concerned;
[3.17.4] That a citizen who voted and joined in
a particular political party by itself voluntarily subjured, tied,
and approved AD/ART political party In question. Every member of the House
that represents a political party should have good integrity anyway, and on
46
the turn must provide accountability (accountable) to the extent of
where the commitment and performance are. Members of the House were nominated by a particular party,
thus a representation of the political party in the House. In order
uphold the authority and integrity of the political party, then the political party can
propose to the House leadership to dismiss (recall) and
do a PAW against members of the political party who are to member of the House,
for being considered in violation of AD/ART. If the political party is not authorized
to drop the sanctions against its members deviating from
AD/ART and party discretion, then the party members are free to do
while-up;
[3.17.5] That even though the political party authorities did PAW for
its members who served as members of the DPR/DPRD but in
the implementation must conform to the provisions of the Act (vide Article
22B UUD 1945) and AD/ART political party is concerned, so not
can be done with arbitrary or by means of breaking the law.
If it is done then members of the political party concerned can
conduct legal efforts either through the courts of state endeavour and through
the general judiciary;
[3.18] Draw that based on all legal considerations
described above, the Court argued the applicant ' s request was not
reasoned by law;
[3.19] Weighed That Despite The Substance of the subject matter a quo already
breaking up in previous cases (Number of Disconnect) 008 /PUU-IV/2006, dated
September 28, 2006) so that a quo ne bis in idem and the wish
should be not acceptable, but because the subject of a quo is contained in the Act. different from the previously broken
Act, then the a quo application must be specified rejected.
4. KONKLUSI
Based on consideration of the facts and laws above, the Court
concluded:
47
[4.1] the court is authorized to check, prosecute, and disconnect
a request;
[4.2] The applicant has a legal position (legal standing) to submit
a quo;
[4.3] Dalil-dalil The applicant is unfounded and unwarranted according to the law;
Based on the Basic Law of the Republic of Indonesia Year
1945 and by recalling the Law Number 24 of 2003 concerning
Constitutional Court of the Republic of Indonesia in 2003 Number
98, Addition Of State Republic Indonesia Number 4316).
5. AMAR VERDICT,
prosecute,
Denying the applicant for the whole.
So it was decided at a meeting of the Judges on the day
Wednesday the ninth of March of the year two thousand eleven which is attended by
eight Constitution Judges, namely Moh. Mahfud MD, as the Chairman, Achmad Sodiki, Maria Farida Indrati, Muhammad Alim, M. Akil Mochtar,
Ahmad Fadlil Sumadi, Hamdan Zoelva, and Harjono as well as pronounced in
The Plenary Session of the Constitutional Court is open. to the public on Friday the date
eleven months in March of the two thousand eleven by the eight Judges of the Constitution, that is
Moh. Mahfud MD, as the Chief of the Members, Achmad Sodiki, Maria Farida
Indrati, Muhammad Alim, M. Akil Mochtar, Ahmad Fadlil Sumadi, Hamdan Zoelva,
and Harjono respectively as Member with assisted by Saiful Anwar
as the Switcher Panitera, attended by the applicant, the DPR or the
represents, and the Government or that represents.
CHAIRMAN
ttd.
Moh. Mahfud MD
48
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Maria Farida Indrati
ttd.
Muhammad Alim
ttd.
M. Akil Mochtar
ttd.
Harjono
ttd.
Ahmad Fadlil Sumadi
ttd. Zoelva Hamdan
Panitera Penganti
ttd.
Saiful Anwar