Key Benefits:
VERDICT Number 63 /PUU-VIII/2010
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTION OF THE REPUBLIC OF INDONESIA
[1.1] Which checks, prosecute, and severing matters constitution on the level
first and last, dropping a ruling in the Test application case
Act No. 22 of 2007 on Election Organisers
against the State Basic Law of the Republic of Indonesia 1945, which
submitted by:
[1.2] Name: JAMIL B., S.H.
Place/date born: Sabang, May 2, 1981
Religion: Islam
Work: Advocates & Legal Consultants
Citizenship: Indonesia
Address: H. Abd Road. Rahman Number 17 Village
Sabang, Tolitoli County, Central Sulawesi
Based on the Special Power Letter dated October 20, 2010 gave power to
Mujahid A. Latif, S.H., MH; Ikhwan Fahrojih, S. H, and M. Jodi Santoso, S. H, Advocates
and Legal Counsel, headquartered in the Law Office of WIT & Partners, address
on Jalan Cempaka White Western XIX Number 35E, Jakarta, acts well together
and alone to and on behalf of the power-giver;
Next is referred to as -------------------------------------------------------------------------------- Applicant;
[1.3] Reading the applicant's request;
Hearing the applicant;
Checking the applicant's evidence;
Read the Council's written caption People's Representative.
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2. SITTING LAWSUIT
[2.1] A draw that the applicant submitted this undated application
August 31, 2010, which was accepted and registered in the Constitutional Court of Justice
(subsequently called the Court of Justice) on the 11th October 2010
with Perkara registration Number 63 /PUU-VIII/2010, which was corrected and received
in the Court of Justice on November 1, 2010, which at its point
outlines the following things:
AUTHORITY OF THE CONSTITUTIONAL COURT
1) Is Based On The Number Of Kara Registers 63 /PUU-VIII/2010, plea
The applicant tests the provisions of Law No. 22 Year 2007 on
The Election Organizer, Section 30 of the paragraph (1) and Article 111 of the paragraph (1) and
paragraph (2) against the 1945 Constitution;
2) According to the Article 24C paragraph (1) UUD 1945, Constitutional Court authorized
accept, examine and prosecute at first and last level which
the verdict is final to test the Act against the Constitution of 1945;
3) In Section 10 of the paragraph (1) letter a Law Number 24 Year 2003
about the Constitutional Court, reaffirmed authority a quo, which
reads, "The Constitutional Court of authority is prosecuable at the first level
and the last of its verdict is final to: test the Act
against the State Basic Act Republic of Indonesia in 1945",
4) Based on such provisions, the Constitutional Court in authority
examine and prosecute Law testing case Number 22
In 2007 on Organizing General Election, Article 30 verses (1) and
Article 111 of the paragraph (1) and paragraph (2) of the Constitution of 1945.
LEGAL STANDING (LEGAL STANDING)
A. Law
1) That according to the provisions of Article 51 paragraph (1) of the letter of the Constitutional Court,
" The applicant is a party that considers the right and/or authority
its constitutionality is harmed by the enactment of the Act, namely:
"individual citizens of Indonesia". In the explanation of the provisions of Article 51
paragraph (1), the constitutional right is the rights set forth in
The 1945 Constitution;
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2) That in the law of the Act testing the Act as set
Rules of Constitutional Court Number 06 /PMK/2005 on Guidelines
Event In Perkara Testing Act Reaffirmed
subjects who can act as petitioners as in
Section 3 a, "The applicant in the test of the Act against the Constitution
1945 is:"The individual of the Indonesian citizen or group people
have the same interests". Under the terms of a quo also described the meaning
of the constitutional right that is the right and/or authority set out in the Constitution
1945 (Article 1 of the paragraph (2));
3) That the applicant is an individual of the domiciled Indonesian citizen
(resides) in Tolitoli County, Central Sulawesi (Evidence P-1)
as referred to in Article 51 of the paragraph (1) the letter of the MK Act and Article 1
paragraph (2) of the Regulation of the Constitutional Court Number 06 /PMK/2005, which is rights
The constitutionality has been harmed by the enactment of the provisions of Article 30
paragraph (1) and Section 111 of the paragraph (1) and paragraph (2) Law Number 22 of the Year
2007 about the Election Organizer of the Election reads;
a. Article 111 paragraph (1), "To examine the complaint and/or the report
The alleged violation of the code of conduct committed by members of the KPU and
member of the Provincial KPU, formed the Honorary Board of the KPU which is
ad hoc";
b. Article 111 of the paragraph (2), "Establishment of the Honorary Council of the KPU as
referred to paragraph (1) is specified with the KPU Decision";
c. Section 30 of the paragraph (1) of the Law Number 22 of 2007, "Stop
members of the KPU, Provincial KPU, and KPU Regency/City that have
meets the provisions as referred to in Section 29 of the paragraph (2)
the letter a, letter b, the letter c, the letter f, and the letter g preceded by verification
The Council of Honor for the recommendation of the Bawaslu or the complaint
society with a clear identity";
B. Facts
1) That on 26 May 2010 one of the candidates for Vice Regent was
H. Amiruddin H. Nua., MM, died during the campaign that
was the Prospective Spouse Number 1 in the name of H. Aziz Bestari ST. MM
and Drs. H. Amiruddin H. Nua., MM;
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2) That on May 26, 2010 Central KPU Center without a Pleno KPU Meeting
issued a Letter of 320 /KPU/V/2010 which stated the Couple
The candidate number Urut 1 in the name of H. Aziz Bestari ST. MM and Drs. H. Amiruddin
H. Nua., MM, reserves the right to follow Pemilukada (Evidence P-2);
3) That after the hearings on the Commission II with the KPU and
Bawaslu, the KPU on 29 May 2010 through the Pleno Meeting published
The Number of Decision Letters 324 /KPU/V/2010 whose substance is stated
Number of Candidates Number Urut 1, H. Aziz Bestari ST. MM and Drs. H. Amiruddin
H. Nua., MM died by law (Proof P-3);
4) Akan but KPU Sulteng on May 29, 2010 Letter Number 20 /KPU
Prov-24/V/2010 instead responded and followed up on the letter with
declaring the Prospective Spouse Number 1 H. Aziz Bestari ST. MM and
Drs. H. Amiruddin H. Nua., MM remains valid following the regency of the regency
Tolitoli (Evidence P-4);
5) That over the publication of two a quo letters, then on 31 May 2010
KPU Tolitoli followed up the Letter of KPU a quo by stating the Partner
Candidate Number Urut 1 H. Aziz Bestari ST. MM and Drs. H. Amiruddin H. Nua.,
MM d e 2 of the Law No. 22 of 2007 and
Regulation KPU Number 31 of 2008 on the Organizing Code of Conduct
General Election;
9) That on 14 July 2010 based on Letter Number 469/
Bawaslu/VII/2010, Bawaslu recommends creation of the Board
Honor of the three members of the Central Sulawesi Province in casu
Adam Malik, Yandi Basma, and Patrisia Lamarauna;
10) That the recommendation of the Bawaslu a quo should be and should be Actionable
by KPU as an Act No. 22 of 2007,
that is:
a. Article 111 paragraph (1), "To examine the complaint and/or the report
The alleged violation of the code of conduct committed by members of the KPU and
member of the Provincial KPU, formed the Honorary Board of the KPU which is
ad hoc";
b. Article 111 of the paragraph (2), "Establishment of the Honorary Council of the KPU as
referred to paragraph (1) is specified with the KPU Decision";
c. Section 30 of the paragraph (1) of the Law Number 22 of 2007, "Stop
members of the KPU, Provincial KPU, and KPU Regency/City that have
meets the provisions as referred to in Section 29 of the paragraph (2)
the letter a, letter b, the letter c, the letter f, and the letter g preceded by verifcation by
The Honorary Council on the recommendation of Bawaslu or the complaint
society with identity identity ";
11) That not in the form of the Council Honor of the three KPU members
Sulteng a quo due to its multitinterpretation And/or misinterpretation and/or
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The error of applying to Section 30 of the paragraph (1) and Section 111 of the paragraph (1) and
paragraph (2) Act No. 22 of 2007, in addition, section a quo
did not set the deadline and the constraint to the KPU when to
carry out the recommendation of the formation of the Board of Honor "
12) That the multitinterpretation and/or error of interpretation and/or misrepresentation
the application and its not set deadlines and the limits of a quo,
providing space for the KPU procrate (buying time) formation
Council Honor and/or not carrying out the a quo recommendation until
the term of a member of the KPU that violates the Code of Conduct expires and/or
dies the world and/or resign;
13) That its multitinterpretation and/or fallaness interpretation and/or error
application of the establishment and time of the Court of Honor by
KPU under Article 30 of the paragraph (1) and Section 111 of the paragraph (1) and paragraph (2)
Act No. 22 of 2007 contradictory to the principle of law
the state of law in the Constitution of 1945 is:
a. Article 1 paragraph (3), "The State of Indonesia is the legal state";
b. Article 22E paragraph (1) of the Constitution of 1945, "Elections are held
direct, general, free, secret, honest, and fair every five years ";
c. Section 28D paragraph (1), "Everyone is entitled to the recognition, warranty,
protection, and fair legal certainty as well as equal treatment
before the law";
14) That A.V. Dicey outlines three features important in each country
the laws he called with the term "The Rule of Law"' i.e.:
a. Supremacy of Law;
b. Equality before the law;
c. Due Process of Law.
15) That the establishment and existence of the Board of Honor
meant no other universal enforcement of checks and balance
between organs of state power (state main organ) and the "
of the Council of Law". responsibilitythe law (liability) of the violation of the Electoral Principles as set
in:
a. Article 22E paragraph (1) of the Constitution of 1945, "The general election is implemented
direct, general, free, secret, honest, and fair every five years";
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b. Article 18 paragraph (4), "Governor, Regent and Mayor respectively as
Provincial Chief Government, County and City are selected
democratic";
c. Article 2 of the Law No. 22 of 2007, "Organizing Elections
guidelines to asas: a. standalone; b. honestly; c. Fair; d. legal certainty;
e. The order of the elections; f. Common interests; g. openness;
h, proportionality; i. professionalism; j. accountability; k. efficiency; and
I. Effectiveness":
16) That on the other, the creation of an Honorary Council of prosecuting the alleged
violation of the electoral principles and the Election Code of Conduct
as a representation and form of responsibility (ex-post/lability) country
to restore (recovery) and return (restoration) of trust
public to the election organizer is eroded and eroded;
17) That in criminal law is known as asas nullum delictum nulla poena sine
praevia lege poenali means that there is no The action can be
convicted without the power of an Act that threatens it
as a criminal, and the principle gees straf zonder schuld means no
penalty without error. Both asas can be interpreted as no one can
be sentenced to criminal if there is no error that he does and the existence of
rules governing ";
18) That should be both of the universal law principles a quo can be adopted and
enforceable in the context of violation of electoral principles and the Code
Election Ethics by Election organizers, causes impossible in a state of law
democratic someone "checked" convicted and there are rules
that set not on trial and in demand of legal liability
as soon as possible for legal certainty and fulfill basic rights
por/victim and also checked on its own;
19) That in the state of law (rechsstaats and rule of law) errors or
the negligence resulting in the elevated contitional rights and basic rights
at the age of citizens as well as the loss for the state to stand trial "at the table
trial" and/or "forgiven ();
20) That the creation of an Honorary Council corresponds to the legal principle
corrective justice, that every person or society (private interest and
public interest) must be protected with rights and conditions
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as originally by the state in casu The applicant and the county community
Tolitoli, in order for balance (equilibrium) between fairness and certainty
the law which is the goal of law;
21) That in enforcement of the Code of Conduct in some state institutions and professions
the law of the creation of the Honorary Council/Honorary Assembly is mandatory
and is organized in immediate time. Thuthority of enforcing
the principles of Pemilukada are direct, common, free and secret and honest and
fair (luber and jurdil), Bawaslu has received The applicant's report
dated 27 May 2010 and 14 June 2010. Top of the a quo,
Bawaslu conducting investigations into Tolitoli and Palu as well as the study, the results
allegedly strong 3 (three) members of the Election Commission (KPU) of Sulawesi Province
Tengah in casu Adam Malik, Yandi Basma, and Patrisia Lamarauna
committing a violation of Articl Indonesia;
b. The unity of indigenous law society as long as it is alive and appropriate
with the development of the People's Republic of the Republic and the principle of the Republic of the Republic
Indonesia that is set in undang-Undang;
c Public or private legal entities; or
d. The State Institute.
In the explanation of Article 51 of the paragraph (1) stated that the intended
with the constitutional right is the rights set forth in the 1945 Constitution. This
means that only the rights explicitly set in the 1945 Constitution
which includes "constitutional rights";
Therefore, according to the MK Act, so that a person or a party may
be accepted as the applicant's party which has a legal position
(legal standing) in the Act of testing against
UUD 1945, then first must explain and prove:
a. the absence of the right and/or its constitutional authority as
referred to Article 51 of the paragraph (1) and the Explanation of the MK Act which it considers to have been
aggrieved by the enactment of an Act that is motionless
testing;
b. the rights and/or constitutional authority of the Applicant as a result of
from the enactment of the Act, which is required to test.
That regarding the limitations on constitutional harm, the Court
The Constitution has provided The terms and limitations of loss
constitutions arising from the enactment of an Act
under Article 51 of the paragraph (1) MK Act, must meet 5 (five) terms
(vide of the Decision of Case Number 006 /PUU-III/2005 and The verdict of Case Number
011 /PUU-V/2007), as follows:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. The permissions and/or constitutional authority of the applicant are considered by
The applicant has been harmed by an Act that is moored
testing;
c. the rights and/or constitutional authority of the applicant
referred to be specific (special) and actual or at least a potential
potential that according to reasonable reasoning can be certain to occur;
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d. the existence of a causal link (causal verband) between the loss and
the enactment of the Act was moveed to be tested;
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 testing case The a quoAct, then the applicant does not have
legal standing (legal standing) as the party of the applicant.
Responded to the applicant a quo, the House of Representatives view that
The applicant must be able to proving first whether the applicant is correct
as the party considers it The rights and/or its constitutional authority
aggrieved for the expiring provisions of the test, in particular
in conducting a loss to the rights and/or
of its constitutional authority as an impact of Do so.
The conditions are required to be tested.
Against that legal position (legal standing), DPR
views that the subject matter of the applicant is not
in the form of the Honorary Council that recommended Bawaslu for
check for alleged code violations As defined in the
request a quo, attributed to the applicant as a result of
the multitinterpretation of the provisions of Article 30 of the paragraph (1) and Article 111 of the paragraph (1) and paragraph (2)
Act a quo, which There is absolutely no
its relevance between the applicant ' s constitutional rights loss
with the Act of the Act being moted. Subject
The applicant ' s problem, not the issue
the constitutionality of the norm Article 30 verse (1) and Article 111 of the paragraph (1) and paragraph (2)
The a quo Act, but more to the subject matter of the norm that is
the creation of an Honorary Council, with an explanation as follows:
1. That in the a quo request related to the applicant's position
only be put forward, that the applicant is a person of the WNI
domiciled in Tolitoli County, Central Sulawesi, whose rights
his constitutionality has been harmed with the enactment of the provisions of Article 30
paragraph (1) and Section 111 of the paragraph (1) and paragraph (2) Act Number 22
Year 2007. (vide: Request letter a figure 3 page 2);
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2. That the applicant in the a quo plea is not concrete in
outlines the loss of constitutional rights experienced by Iangsung by
The applicant as a causal verband between the rights loss
the constitutional constituting The applicant with the Act
a quo is being asked for testing;
3. That in the a quo request the applicant is postulate, the loss
as postured is a result of the unformed of the Board
The recommended Honor Bawaslu, attributed to
The applicant with the And/or misrepresentation and/or
error of application of the interpretation of the Act a quo.
4. That of the Applicant a quo, the House of Representatives view that
in fact there is no immediate constitutional rights loss
the applicant by the enactment of the provisions of Article 30 of the paragraph (1) and
Section 111 of the paragraph (1) and verse (2) the a quoAct. That
as the applicant has submitted, the occurrence of the Pemilukada kisruh in
Tolitoli Regency, Central Sulawesi is due to the exit of two
the KPU a quo of which triggered and ignited the mass excretion
A government office burning and a few
polling stations (polling stations) (vide: Application c. 6
page 5).
Two of these KPU letters then based on the report/complaint
The applicant, Bawaslu recommended the creation of an Honorary Council,
but according to the applicant up to the test application
The a quo Act submitted, the Honorary Council that
recommended Bawaslu has not also been set up, which the applicant says
is caused by its multitinterpretation and/or misinterpretation of and/or
the misrepresentation of the interpretation of Article 30 of the paragraph (1) and Section 111 verse (1) and
paragraph (2) of the a quo Act. Against this House of Representatives view
that the true applicant's problem is not
the question of the constitutionality of the norm, but is the application of the norm
Article 30 of the paragraph (1) and Article 111 of the paragraph (1) and the paragraph (2) Law
No. 22 of 2007 by KPU.
Based on the description, the House of Representatives view that
there is not a constitutional right to be harmed,
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or no potentially any potential constitutional loss
against theant
In accordance with the provisions of Article 51 of the paragraph (1) Act Number 24
of 2003 on the Constitutional Court (subsequently called the MK Act),
states that the applicant is a party to which the Court of Justice is a member of the Constitutional Court. assume the rights and/or
of its constitutional authority are harmed by the enactment of the Act,
that is:
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a. Individual citizens of >integrity, and credibility of the KPU member, member of the KPU Province, member
KPU Regency/City, PPK, PPS, KPPS, PPLN, and KPPSLN as well as
Bawaslu, Panwaslu Province, Panwaslu Regency/City, Panwaslu
Subdistrict, Field Election Supervisor, and External Election Supervising
The country is binding as well as the mandatory adherents of the KPU,
member of the KPU Province, member of KPU Regency/City, PPK, PPS, KPPS,
PPLN, and KPPSLN as well as Bawaslu, Provincial Panwaslu, Panwaslu
District/City, Panwaslu Subdistrict, Field Election Supervisor, and
Regents of Foreign Elections as set in Section 110
Act Number 22 of 2007;
7. That the applicant postulate in the enforcement of the Code of Conduct in some
state institutions and the legal profession, the formation of the Board
Honor/Honorary Assembly is mandatory and is held in
immediate time, as the Applicant postulate which compares with
The Rules of the Code of Ethics of the Constitutional Court, the Rules of the Justice Code of Justice
the Great, and the Code of Conduct Code of Conduct. Against the applicant ' s dalil
, the House of Representatives views that by comparing
The setting of the Code of Conduct in the context of the material testing of
The Act is not appropriate, because it compares the settings
The Code of Conduct a quo with the Election Organizing Code of Conduct
as stated in Regulation Law No. 31 of 2008 is
the technical regulations under the Act. Therefore, if the setting
The Election Organizing Code of Conduct is compared to the Code setup
The ethics of other agencies being a dalil in the testing application
The a quo Act is very unfounded, because It is not
the Constitutional Court's authority to test it, but it is
the authority of the Supreme Court.
That under the dalil-dalil, the House of views
the provisions of Article 30 of the paragraph (1) and Article 111 of the paragraph (1) and verse (2)
Act No. 22 of 2007 on Election Organizers is not
contrary to Article 1 of the paragraph (3), Article 22E and Article 28D paragraph (1)
Constitution of 1945.
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That is based on the view of the DPR's view of the Assembly
The Constitutional Judge gives an amar the verdict as follows:
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. Stating Section 30 paragraph (1) Section 111 of the paragraph (1) and paragraph (2) of the Act
Number 22 of 2007 on Election Organizers is not contradictory
with Article 1 of the paragraph (3), Section 22E paragraph (1) and Section 28D paragraph (1) of the 1945 Constitution;
4. Declaring Section 30 paragraph (1), Section 111 of the paragraph (1) and paragraph (2) of the Act
Number 22 of 2007 on Election Organizers remains the force
binding laws.
[2.4] Draw that to shorten the description in the ruling this, all
things that happen in the trial refer to the news of the trial event, and
is one unbreakable unit with this disconnect;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the subtance of a quo is testing Article 30
paragraph (1) and Article 111 of the paragraph (1) and paragraph (2) of Act Number 22 of the Year
2007 about the Organizing General Election (republican Gazette
Indonesia Year 2007 Number 59, Additional Gazette Republik Indonesia
Number 4721, subsequently called Act 22/2007) against the Basic Law
Republic of the Republic of Indonesia in 1945 (next called UUD 1945);
[3.2] weighed that before entering the subject matter,
Constitutional Court (later called the Court) first will
consider two things, namely:
The Court of Justice to examine, prosecute, and break the plea
a quo;
Legal Occupation (legal standing) The applicant to apply
a quo;
Against these two things, the Court argues as follows:
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The Court's authority
[3.3] weighing that one of the Court's authority under
Article 24C paragraph (1) of the 1945 Constitution and Section 10 of the paragraph (1) the letter of the Law Number 24
Year 2003 on the Constitutional Court (sheet of state of the Republic of Indonesia
in 2003 No. 98, Additional Gazette of the Republic of Indonesia Number 4316,
subsequently called Act MK) juncto Article 29 paragraph (1) letter a Act Number 48
Year 2009 on the Power of Justice (State Sheet of the Republic of Indonesia
In 2009 the Number 157, the addition of the Republic of Indonesia's Republic of Indonesia Number
5076) was to test the Act against the Basic Law of 1945;
[3.4] weighed that the a quo plea was about testing
Act in casu Act 22/2007 against UUD 1945, so that the Court
authorized to examine, prosecute, and cut down a quo;
Legal standing (legal standing) applicant
[3.5] Draws that under the terms of Article 51 of the paragraph (1) of the MK Act as well as
The explanation, which is can apply for test testing
against UUD 1945 is a party that considers the rights and/or authority
its constitutionality is harmed by the enactment of the Act, namely:
a. Individuals (including groups of people who have the same interests) citizens
Indonesia;
b. the unity of the indigenous law society as long as it is still alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia which
is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against
The 1945 Constitution must explain and prove first:
a. The applicant's qualifications as referred to Article 51 of the paragraph (1) of the MK Act;
b. the absence of the constitutional rights and/or constitutional authority provided by
The 1945 Constitution resulting from the enactment of the required Act
testing;
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[3.6] Draw that about loss of rights and/or authority
constitutional as referred to in Article 51 of the paragraph (1) MK Act, the Court
since the Number 006 /PUU-III/2005, dated May 31, 2005, paragraph
Number 11 /PUU-V/2007, dated 20 September 2007, and the ruling
further establish that the loss of rights and/or constitutional authority
as Article 51 of the paragraph 51 (1) the MK Act must be meets five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitutiop>by referencing Article 22E of paragraph (5) equal or equal to
Bawaslu as did the institution of the state (vide: Plea
page 7), DPR view that in the framework of performing the tasks
and their respective powers, the equal position between the two
the agency a quo is reflected in the authority collectively
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compiling and approving one Code of Conduct for maintaining independence,
b. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be specific
(special) and actual or at least a potential that according to the reasoning that
is reasonable to be assured will occur;
d. Due (causal verband) connection between the intended loss and
the effect of the Act is being tested;
e. It is possible that with the application of the request, then the loss
the constitutional one that is postured will not or no longer occur;
[3.7] weighed that under the description of the provisions of Article 51
paragraph (1) MK laws and terms of rights and/or constitutional authority
as described above, subsequently the Court will consider
the legal standing (legal standing) the applicant corresponds to the description of the applicant in
the application and the relevant evidence;
[3.8] Weighing that the applicant postulate its constitutional rights that
is guaranteed by the Constitution of 1945 i.e. Article 27 paragraph (1) of the 1945 Constitution, Section 28D paragraph (1) and
paragraph (3) of the 1945 Constitution was harmed by the enactment of the provisions of Article 30 of the paragraph (1) and
Section 111 of the paragraph (1) and paragraph (2) of the 22/2007 Act further states:
a. Section 30 of the paragraph (1) Act 22/2007, reads: "The Pit Stop of the KPU, Provincial KPU, and the Regency/City KPU
has fulfilled the provisions as referred to in Section 29 of the paragraph (2)
the letter a, letter b, letter c, letter f, and the letter g is preceded by verification by
Honorary Council on the recommendation of the Bawaslu or the public complaint
with a clear identity";
27
b. Section 111 of the paragraph (1) Act 22/2007, reads: "To examine the complaint and/or report of the alleged violation
code of conduct carried out by the KPU member and member of the Provincial KPU,
established Honorary Council of KPU which is ad hoc";
c. Article 111 of the paragraph (2) Act 22/2007, reads: "The creation of the KPU Honorary Council as referred to in paragraph (1)
is specified with the KPU Decision";
[3.9] weighed that to assess whether the applicant has office
law (legal standing) according to Article 51 of the paragraph (1) MK Act, the Court must
consider two things, that is:
1. whether the applicant as an individual citizen of Indonesia can
be qualified as an individual citizen of Indonesia as set
in Article 51 of the paragraph (1) of the MK Act;
2. whether the applicant as an Indonesian citizen has been harmed by the rights
the constitutionality by the enactment of Article 30 of the paragraph (1) and Article 111 of the paragraph (1) and
paragraph (2) Act 22/2007;
[3.10] Draw that the applicant postulate reason. This
is due to the sections a quo in the Act 22/2007 of multitapsir and is interpreted
erroneously by the KPU, thus erroneously in its application. As a result the KPU
did not immediately form an Honorary Council to check out KPU members
Tolitoli County in following up on the applicant ' s report. Not immediately
in the form of the Council of Honor it has led to the
unrest in Tolitoli which the applicant says has harmed the constitutional right
The applicant;
Court opinion
[3.11] Draws that According to P-1 Evidence, the Population Card
(KTP) on behalf of Jamil (applicant) proves that it is concerned
is the Citizen of Indonesia, authorized by the Office of Civil Records
Tolitoli Regency, Sulawesi Province Center with NIK. 7204080205810003,
dated 12 December 2007. Therefore, the applicant may qualify
as an individual of the Indonesian Citizen as referred to as Article 51
paragraph (1) the letter of the MK Act;
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[3.12] weighed that regarding the loss of the applicant 's constitutional rights,
after the Court read the applicant' s plea and heard the caption
The applicant at the trial after the plea edited, there is a legal fact
as follows:
1. That the provisions of Section 30 of the paragraph (1) and Section 111 of the paragraph (1) and paragraph (2)
Act 22/2007 are provisions regarding the termination of the KPU,
Provincial KPU and the District/City Council of the City that must meet the reasons
a certain one verified by the Council of Honor at the recommendation of Bawaslu or
community complaint. The creation of the Honorary Council is ad hoc
and set by the KPU;
2. That according to the Applicant riots in Tolitoli as a result of
the slow KPU form an Honorary Council after receiving a report from
The applicant thus harms the applicant and the Tolitoli society;
[3.13] Draws that based on the above legal fact, according to
the Court, the applicant ' s loss is not a constitutional right to the effect of
the enactment of the provisions of a quo, but rather the loss caused by
the delay of the KPU to form the Council Honor as postured
The applicant, meaning the loss is a loss related to the execution of
post a quo by KPU;
[3.14] It is balanced that due to the loss experienced by the applicant
it is not a constitutional rights loss, then the applicant does not have
legal standing (legal standing) to apply for a quo so
the subject of the applicant is not to be considered;
4. KONKLUSI
Draw that based on the assessment of the fact and the law at
above, the Court concludes:
[4.1] The court is checking, prosecuting, and severing the plea
a quo;
[4.2] The applicant do not have a legal standing (legal standing) for
applying for a quo;
[4.3] The application is not considered.
29
By recalling the Basic Law of the Republic of Indonesia in 1945 and the Law No. 24 Year 2003 on the Constitutional Court (the State Sheet of the Republic of Indonesia in 2003 No. 98, Additional Sheet of State of the Republic of Indonesia No. 4316);
5. AMAR RULING
Prosecute,
Declaring the applicant is unacceptable.
So it was decided at the Meeting of Judges attended. By the nine Judges of the Constitution is us, Moh. Mahfud MD. as the Chairman of the Members, Achmad Sodiki, Ahmad Fadlil Sumadi, M. Arsyad Sanusi, M. Akil Mochtar, Maria Farida Indrati, Hamdan Zoelva, Harjono, and Muhammad Alim, respectively as Members on Tuesday Eleven months of the year January year two thousand eleven, and spoken in the Plenary Session of the Constitutional Court was open to the public b>ttd. Acmad Sodiki
MEMBERS,
ttd. -Yeah. Ahmad Fadlil Sumadi M. Arsyad Sanusi
ttd. -Yeah. M. Akil Mochtar Maria Farida Indrati
ttd. -Yeah. Hamdan Zoelva Muhammad Alim
A Replacement Panitera,
ttd. Eddy Purwanto
30
CHAIRMAN,
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