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Test The Material Constitutional Court Number 26/puu-Vii/2009 Year 2009

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 26/PUU-VII/2009 Tahun 2009

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erses of the 1945 Constitution and is not born based on the private spirit of Coorporated (company) the national swasta/national The political party and the Joint Political Party under Article 6A (2) are the means of the political participation of the people born and the people, by the people, and for the people so that it has a positive correlation relationship that is not mutually mutually effective. conflicting, or binding intact between articles and other verses in the 1945 Constitution.

b. When and the time of the proposed spouse of the Presidential candidate and the Vice President in Article 14 of the paragraph (2) of the Act 42/2008 at least 7 (seven) days after the national designation of the Election of Representatives of the House. This is very clearly contrary to the one mandated by Article 6A (2) of the Constitution of 1945, as the time and time of registration of the President and the Vice President are before the implementation of the general election (before the legislative elections).

UU 42/2008 UUD 1945

c. Article 9 verse (2): The potential spouse is proposed by a political party or a joint political party of the election participants who meet the requirement of the least 20% of the seats (twenty percent) of the number of House seats or gain 25% (twenty-five. percent) of the national legal vote in the House of Representatives elections, prior to the implementation of the Presidential and Vice President Elections.

Article 1 paragraph (2): Sovereignty is in the hands of the people and exercised according to the Basic Invite.

Article 6A verse (1): The President and Vice President are elected in one pair directly by the people.

c. That Article 9 of the Act 42/2008 on the requirements of the proposals of the candidates for President and Vice President, describes and accentuates the parliamentary system of parliamentarians which is concerned with the outcome of the House election. This is clearly contradictory to the presidential system mandated in Article 1 of the paragraph (2) and Article 6A paragraph (1) of the 1945 Constitution. In the presidential system in the Republic of Indonesia, the Head of State has sovereignty guaranteed based on the legitimacy of the people. Since the president is directly elected by the people instead of being elected through the intermediary agency (DPR) and is not limited by the parliamentarian institutions based on the needs of the election participants through the parliamentary factions;

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d. The results of the election that resulted in the House of Representatives have no juridical correlations, with the proposal of a candidate for the President and the Vice President, or in other words the election result cannot be used as a tool of legitimacy for the proposal of the President and the Vice President. The President. The proposal of a candidate for President and Vice President must refer to a presidential system which lays down the constitutional rights of the sovereign as the candidate of the President and the Vice President, which has been guaranteed in Article 1 of the paragraph (2) and Article 6A of the United States. (1) UUD 1945;

e. Article 9 of the Act 42/2008 has been removed from a presidential system of state, thus making it an ambivalent or dualistic consummation, since it is double meaning that it is ambiguous and contrary to the 1945 Constitution;

It should be the Act of 42/2008 Article 9 verse (2) states that the spouse of a candidate is proposed by a political party or a joint political party of the election participants who meet the requirement of a seat of at least 20% (twenty percent) of the number of House seats or earn 25% (two Twenty-five percent) and a national legal vote in the House of Representatives elections, before the implementation of the election of the president or spouse of a candidate is proposed by the Independent/candidate Independent People's Governance Committee which meets the requirements through the choice and support of the people based on the Pancasila mandate and the 1945 Constitution.

UU 42/2008 UUD 1945

Article 8: The candidate for President and future Vice Presidential candidate is proposed in 1 (one) spouse by political party or joint political party.

Article 10 paragraph (1): The determination of the Presidential candidate and/or the President is conducted democratically and openly in accordance with the internal mechanism of the political party concerned.

Article 10 paragraph (2): The Political Party can make a deal with other Political Parties to merge in proposing a prospective partner.

Article 10 of the paragraph (3) Political Party or the Combined Political Party as it is in verse (2) can only nominate 1 (one) Candidate Partner in accordance with the internal mechanism of the Political Party and/or the Combined Political Party which is conducted democratically and openly.

Article 27 paragraph (1): Any citizen at the same time in law and government and obliged to uphold the law and government with no exception.

Article 28C paragraph (2): Everyone has the right to advance itself in the fight for its rights collectively to build society, nation, and country.

Article 28D paragraph (1): Everyone is entitled to the recognition, assurance, protection, and determination of fair laws as well as equal treatment in the presence of laws.

Section 28D paragraph (3): Each citizen is entitled to the same opportunity in government.

Article 28E paragraph (3): Everyone is entitled to freedom of union, quizting, and issuing opinions.

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Article 10 of the paragraph (4) The candidate for President and/or a candidate for Vice President who has been proposed in one spouse by the Political Party or the Combined Political Party as referred to in verse (3) should not be nominated again by Article 28H paragraph (2): Each person deserves a special ease and treatment to obtain equal opportunity and benefit to achieve equality and justice.

Article 28I paragraph (2): Everyone is entitled to free and discriminatory treatment of any basis and is entitled to a protection against discriminatory treatment

Article 28I paragraph (4): Protection, submission, enforcement, and The fulfilment of human rights is the responsibility of the state, especially the government.)

Article 28I paragraph (5): To uphold and protect human rights in accordance with the principles of a democratic law state, then the implementation of human rights is guaranteed, regulated, and poured in the laws.

Article 28J paragraph (1): Everyone is obliged to respect the human rights of others in an orderly, national, and state life order.

The true democracy is identical to one of the aspirations that involves the whole the people in every decision as mandated by the participatory democracy and the people, by the people and for the people. It means that democracy is the understanding of non-discrimination or intervention, which is a force of power and rank. Democracy should not simply be a symbol that only exploits the interests of the people, act, act, and do it wisely based on Pancasila and the 1945 Constitution which is the the source and all the source of the law.

"And it can also be interpreted that the political party is not a collection of animals, trees, images in the sky that don't have a set of views based on the wisdom of the constitution that is full of hypocrisy like a cow trade " (Politics);

Article 6A paragraph (2) UUD 1945 It is the subject of the mind, the foundation of the spirit that cannot stand alone and is one piece which is intact with articles and other vresident;

4. Evidence P-4: Photocopy of the Revolutionary Revolution of the Constitution of the Independent Democracy

towards New Indonesia;

5. Evidence P-5: Photocopy of the Constitutional Court of the Republic of Indonesia

Number 5/PUU-V/2007 on Testing Act

No. 32 Year 2004 on the Government of Daetah against

The Constitution of the State of the Republic of Indonesia 1945;

6. Proof P-6: Act No. 12 of 2008 on Changes

Second Over Law No. 32 of 2004 on

Local Government;

7. Proof P-7: Photocopy Acta Establishment of the People's Government Committee

Independent on 30 December 2008;

8. Evidence P-8: Photocopied English-Indonesian dictionary excerpts, John M. Echols

and Hasan Shadily;

9. Evidence P-9: Photocopy Act No. 10 of 2008 on

General Elections of the People's Representative Council, Dewan

Regional Representative, and Regional People's Representative Council;

[2.4] weighed that the applicant at the trial May 7, 2009

has provided a statement that is reassertive

its legal position as President of the National Council of Governance Committee

The Independent People. According to the applicant sees the independent not in the form

private, but independent is a political stance;

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[2.5] weighed that to shorten the description in this ruling,

then everything that is indicated in the news of the event of the trial has been contained

and is an inseparable part of this ruling;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the intent and purpose of the a quo is to

test Article 1 of 2, Section 8, Section 9, Section 10, paragraph (2), paragraph (2), paragraph (3),

and paragraph (4) as well as Section 14 of the paragraph (s). (2) Law No. 42 of 2008

on the Presidential Election of the President and Vice President (subsequently called the Act

42/2008) against Article 1 of the paragraph (1), paragraph (2), and paragraph (3), Section 6A paragraph (1) and

paragraph (2), Section 27 of the paragraph (1), Section 28C paragraph (2), Section 28D paragraph (1), and paragraph (3),

Section 28E paragraph (3), Section 28H of paragraph (2), Section 28I paragraph (2), paragraph (4) and paragraph (5)

as well as Article 28J paragraph (1) of the Constitution of the Republic of Indonesia of the Republic of Indonesia Year

1945 (subsequently called UUD 1945);

[3.2] Draw that before entering the subject matter, in advance

formerly the Court would consider about:

a. The Constitutional Court's authority (later called the Court) to

check, prosecute, and cut off a quo;

b. Legal standing (legal standing) applicant to apply

a quo;

Constitutional authority

[3.3] weighing that under the provisions of Article 24C paragraph (1) UUD

1945 junctis Article 10 verses (1) letters a Act No. 24 of 2003

on the Constitutional Court (State Gazette 2003 No. 98,

Additional Gazette of the Republic of Indonesia Number 4316, subsequently called

The MK Act) and Article 12 verse (1) letter a Law Number 4 Year 2004

on the Power of Justice, The Court of Justice is able to judge at the first and last level of the

final to test the Invite-

Invite against the Constitution of 1945.

[3.4] A draw that the applicant's request is to test

the constitutionality of the norm Article 1 of the number 2, Article 8, Article 9, Article 10 of the paragraph (1), paragraph

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(2), paragraph (3), and paragraph (4), as well as Article 14 paragraph (2) of Act 42/2008 against UUD 1945

which is one of the authority of the Court, so therefore

The court of authority examines, prosecuting and severing the application a quo;

Legal Standing (Legal Standing) The applicant

[3.5] weighed that under Article 51 of the paragraph (1) MK Act as well as

The explanation, which may apply for testing of the Act

against the Constitution 1945 is those who consider the rights and/or authority

its constitutionality which was granted by UUD 1945 was harmed by the enactment of an

Act, namely:

a. Individual citizens of Indonesia (including groups of people

have common interests);

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in promulg;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945 must explain and prove first:

a. the position of the applicant as referred to as Article 51 of the paragraph (1) of the Act

MK;

b. no constitutional rights and/or constitutional authority granted

by the 1945 Constitution resulting from the enactment of the Act

is mohoned for testing;

[3.6] It is also that the Court has since the Number of Discharges. 006 /PUU-

III/2005 dated May 31, 2005, Putermination Number 11 /PUU-V/2007 dated 20

September 2007, and Putusan-Putermination further established that the loss

rights and/or constitutional authority as referred to Article 51 verse (1)

The MK bill must meet five terms, that is:

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

Constitution of 1945;

b. The rights and/or constitutional authority by the applicant are considered

aggrieved by the enactment of the test-mover of testing;

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c. Such constitutional losses must be specific (special) and actual or

at least any potential that according to reasonable reasoning can be confirmed

will occur;

d. A causal relationship (causal verband) between the loss is referred to

and the expiring legislation that is being shot;

e. It is possible that by obscured the request, then

constitutional losses such as the postured will not or no longer occur;

[3.7] A draw that the applicant in his request is alienable

he as a citizen of the Republic of Indonesia who has been harmed by the rights

constitutionality by the enactment of Article 1 of 2, Article 8, Article 9, Article 10

paragraph (1), paragraph (2), paragraph (3), and paragraph (4), as well as Article 14 of the paragraph (2) Act 42/2008.

According to the applicant's enactment a quo has led the applicant to be batted

its constitutional right to run for President of the Republic

Indonesia via an independent path. However, on the trial date

7 May 2009 the applicant has revised its legal position no longer as

Indonesian citizens, but as President of the National Council Institute

The Independent People's Governance Committee by Akta Notary Herman Eddy,

S.H., date 30 December 2008 Number 3 of the Constitutional Court argues another, please

the verdict is fair.

[2.2] weighed that in order to strengthen the control, the applicant

submitted any evidence of the letter or writing that was marked P-1 to P-9,

as follows:

1. Proof of P-1: Photocopy of the State Basic Law of the Republic of Indonesia

In 1945;

2. Evidence P-2: Photocopy Act No. 24 of 2003 on

Constitutional Court;

3. Evidence P-3: Photocopy Act No. 42 of 2008 on

General Election of the President and Vice Ptate of law;

That Article 1 of the number 2, and Article 14 of the paragraph (2) of Act 42/2008 contradictory

with Article 6A paragraph (2) of the 1945 Constitution, due to the proposal of the President and the Vice

President according to Article 6A paragraph (2) proposed by a political party or a joint

political party before the implementation of the general election (before the general election

legislative) [sic]. Article 6A paragraph (2) UUD 1945 is the basis of the spirit that

cannot stand alone and is a single entity intact with

articles and verses in the 1945 Constitution. Therefore Political and Combined Party

Political Parties as set forth in Article 6A clause (2) Constitution of 1945

constitute a means of political participation of the people born of the people, by

the people, and for the people so that it is the political participation of the people. have a positive correlation relationship that

is not contradictory, or is binding intact between articles and other verses

in the 1945 Constitution;

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That Article 9 of the Act 42/2008 has accentuated the governance system

parliamentararians, so as opposed to the presidential system

as mandated in Section 1 of the paragraph (2) and Section 6A paragraph (1)

UUD 1945. The election results could not be made a tool of legitimacy for the proposal

the President and Vice President. The proposed candidate for President and Vice President

must refer to a presidential system that lays out the constitutional right

sovereign holder as the candidate for President and Vice President

which has been guaranteed in Article 1 verse (2) and Article 6A paragraph (1) of the Constitution of 1945;

Section 10 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (4) Act 42/2008 does not have

the spirit of participatory democracy as required by

Article 27 paragraph (1), Section 28C paragraph (2), Section 28D paragraph (1), paragraph (3), Article 28E

paragraph (3), Article 28I paragraph (2), paragraph (4), and paragraph (s). (5), as well as Article 28J paragraph (1)

Constitution of 1945;

[3.13] Draw that in addition to the Applicant Committee

Independent People's Government on the nature of the election participants ' political parties

President, therefore Article 8, Article 9 verses (2), Section 10 of the paragraph (1), paragraph (2),

paragraph (3) and paragraph (4) of Act 42/2008 must be revised which in its place

states the spouse of the Presidential candidate and the Vice President before being proposed by

The Party of Politics and the Combined Party of the Party Politics must first be proposed by

Independent People ' s Governance Committee or A combined independent candidate. The sound

further revision of Article 8, Section 9 of the paragraph (2), Section 10 of the paragraph (1), paragraph (2), paragraph (2), paragraph (3)

and paragraph (4) of the Act of 42/2008, which the applicant is required is as follows:

Article 8: That the candidate of the President and the candidate of the Vice President proposed in

1 (one) pair by a political party or a combination of political parties or candidates

President and candidate Vice President, proposed in 1 (one) pair by

People's Governance Committee of the Independent or joint candidates independent ";

Article 9 of the paragraph (2): The candidate's spouse is proposed by a political party or a joint

political party of the election participants who meet the requirement of the most seats

a little 20% (twenty percent) of the number of House seats or gain 25%

(twenty-five percent) of national legal votes in the election of the House members,

before the implementation of the presidential election or the spouse of a candidate is proposed by

The Independent/candidate Independent People ' s Government Committee is eligible

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requirements through the choice and support of the people based on the mandate

Pancasila and UUD 1945;

Article 10 of the paragraph (1): " The determination of the candidate for President and/or the candidate for Vice President

is done democratically and open in accordance with the internal mechanism

The political party concerned or the determination of the candidate for President and/or candidate

The Vice President is done democratically and publicly in accordance with

the internal mechanism of the People's Governance Committee Independent or prospective

Independent concerned ";

Article 10 paragraph (2): " Political parties can do a deal with the party

other politics to do a merger in proposing couples

candidates, or the Independent People ' s Governing Committee can do

deal with the nominee another independent to conduct a merger

in conducting the spouse of the Presidential candidate partner "

Article 10 paragraph (3): " Political parties or the combined political parties as

referred to in paragraph (2) can only nominate 1 (one) candidate pair

in accordance with the internal mechanism of political parties and/or deliberations

the combined political party that performed democratically and openly or

The Independent Party Government Committee or the combined independent candidate

as referred to paragraph 2 can only nominate 1 (one)

the candidate pair in accordance with the mechanism internal candidate independent and/

or a combined future independent candidate deliberation performed

democratic and open ";

Article 10 paragraph (4): " Presidential candidate and/or vice presidential candidate who has been

proposed in one pair by a political party or a joint political party

as referred to in paragraph (3) should not be nominated again by the party

politics or the combination of other political parties or presidential candidates and/or candidates

the proposed vice president in 1 (one) spouse by the Committee

Independent People ' s Government or the combined prospective independent

as referred to in paragraph (3) should not be nominated again by the Committee

People ' s Government Independent or combined other independent candidates;

[3.14] State that the passage in Law 42 of 2008 which

is being honed by the applicant is concerning the passages that

have been tested and broken up by the Court in the previous rulings, namely:

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a. Ruling Number 054 /PUU-II/2004 and No. 057 /PUU-II/2004 respectively

dated October 6, 2004, which in its legal consideration has been

suggests that to be President or Vice President is

the rights of each citizen country guaranteed by the constitution in accordance with the provisions

Article 27 paragraph (1) and Article 28D paragraph (3) of the 1945 Constitution to the fulfills

requirements as set forth in Section 6 and Section 6A Act

Basic 1945. In the exercise of tbout to nominate

self-President Republic of Indonesia through an independent path guaranteed

by Pancasila and UUD 1945 which Mandates that sovereignty in

people's hands;

That Section 1 of 2, Section 8, Section 9, Section 10, paragraph (2), paragraph (2), paragraph (3),

and paragraph (4), as well as Section 14 of the paragraph (2) Act 42/2008 has a double interpretation,

No. provide legal certainty, so contrary to the intent

and the provisions of Article 1 paragraph (3) that the State of Indonesia is

sprevious court, then the Court did not. It may be able to test the chapters.

That.

[3.16] Draw that under Article 60 of the MK Act and Regulation

The Constitutional Court Number 06 /PMK/2005, then against the material charge of the paragraph,

section, and/or section in the legislation that the Court has tested,

not can be motionable retesting, unless submitted for the reason-

the reason of the different constitutionality. The Court argued that the reason

submitted by the applicant in the testing of the charge of paragraph, section and/or

sections of the legislation tested, especially testing against Article 1 of the paragraph (2),

Article 6A paragraph (1), Section 27 of the paragraph (1), Section 28C paragraph (2), Section 28D paragraph (1),

Section 28D paragraph (3), Section 28E paragraph (3), Section 28H paragraph (2), Article 28I paragraph (2),

paragraph (4), paragraph (5), paragraph (5) and Section 28J paragraph (1) of the Constitution of 1945 as the basis

testing not different, so therefore the Court must declare

the applicant cannot accepted;

[3.17] Draw that special against Section 1 and Section 10

paragraph (1), paragraph (2), paragraph (3), paragraph (3) and paragraph (4) as well as Section 14 paragraph (2) Act 42/2008,

The court argues as the following:

1. Article 1 of the 42/2008 Act, is a part of the general provision that

outlines the definition or operational definition, which is intended to be

the definition limit or definition, an abbreviation or an acronym that functions

describes the meaning of a word or term to be formulated so that

does not incur a double understanding. The application of the application

definition, abbreviation or other things that are common, that

is made the basis for later sections in the a quoAct,

is highly unwarranted.

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2. Article 10 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (4) of the Act 42/2008 which also

is required to be tested set about the internal mechanism of the Political Party in

the selection and proposal of the spouse of the President and Vice President

in The General Election, at all has no constitutional issue

that must be confused and the reason submitted along regarding

testing of Article 10 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (4) Act 42/2008

it is not by law;

3. Section 14 of the paragraph (2) of the Act of 42/2008 which only determines the term of time for

registration of the Presidential Candidate Partner and Vice President, is the option

forming legislation that is its authority so that its material

cannot be There's no testing. Based on these three reasons then

the applicant to the extent regarding Article 1 of 2, Section 10

paragraph (1), paragraph (2), paragraph (3), paragraph (3) and paragraph (4), as well as Article 14 of the paragraph (2) of Act 42/2008

must be declared rejected.

[3.18] Consider the reasons for the proposed change

articles as indicated in paragraph [3.13] according to the Court is not

rationally so as not by law to be considered.

4. KONKLUSI

Based on legal and facts above, the Court

concludes:

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

a request for the quo;

[4.2] The applicant as a Individual groups that have interests

equal legal standing (legal standing) to submit

a quo, while as the Independent People's Governance Committee

The State Capital is not have a legal standing (legal standing);

[4.3] The charge material of Article 8 and the provisions of Article 9 of the 42/2008 Act to

tested have been broken up by the Court in the previous case.

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[4.4] Testing against Section 1 of the paragraph (2), Section 10 of the paragraph (1), paragraph (2), paragraph

(3) and paragraph (4), as well as Section 14 of the paragraph (2) Act 42/2008 is unwarranted and does not

by law.

5. Amar Ruling

By recalling the Basic Law of the Republic of Indonesia

in 1945 as well as Article 56 of the paragraph (5) and Article 60 of the Law No. 24

in 2003 on the Constitutional Court (Sheet of State of the Republic of Indonesia)

2003 Number 98, Additional Gazette Republic Indonesia Number

4316).

Prosecuting,

Declaring The Applicant's Request against Section 8 and Section 9

Act Number 42 of 2008 on the Election of the President and Vice

President (State Gazette of the Republic of Indonesia 2008 Number 176,

Additional Republic of Indonesia State Sheet Number 4924) could not

received.

Refused the applicant's plea.

So it was decided in a Meeting of the Judges by

nine Constitutional Judges on Thursday the tenth of September

year two thousand nine and spoken in the trial is open to the public

on Monday the fourteen September year of the two thousand nine,

by our nine Constitutional Judges, that is Moh. Mahfud MD, as Chairman

arrested Member, Abdul Mukthie Fadjar, Maruarar Siahaan, Achmad Sodiki,

Harjono, M. Arsyad Sanusi, M. Akil Mochtar, Muhammad Alim, and Maria Farida

Indrati, respectively as Members with assisted by Sunardi as the

Panitera Replace, attended by the applicant, the Government or the representing, and

the House of Representatives or the mevice.

CHAIRMAN

ttd

Moh. " Mahfud MD

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MEMBERS,

ttd.

Abdul Mukthie Fadjar

ttd.

Maruarar Siahaan

ttd.

Achmad Sodiki

ttd.

Harjono

ttd.

M. Arsyad Sanusi

ttd.

M. Akil Mochtar

ttd.

Muhammad Alim

ttd.

Maria Farida Indrati

PANITERA SURROGATE,

Ttd

Sunardi

cancel the law or part of it, if

the norm is an open authority delegate that can

be determined as legal policy by law-forming. Although

if the contents of a law are judged poorly, then the Court is not

may cancel it, because bad judged does not always mean

unconstitutional, unless the legal policy product is obvious.

violates the morality, rationality and injustice that intolerable.

Throughout policy options is not a thing that goes beyond

legislation-forming authority, not a thing that

exceeds the authority of the legislation, does not constitute

abuse of authority, as well as it's not real-real contradictory to

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UUD 1945, then the policy option cannot be rescinated by

Court;

[3.15] weighed that against Article 8 and Article 9 of the Act 42/2008 a quo,

which is being honed by the use of the bill. The applicant, for reasons not

in contrast to the grounds and basis of the constitutionality filed in

6 (six) of the cases as a whole which has been examined and broken by

The