Key Benefits:
it is contrary to the 1945 Constitution. Article containing
such discriminatory provisions are already as stated as not having
binding legal power;
17. That under the provisions of Article 58 of the Act, the MK Act is stated that the Invite-
Invite by the Court remains valid before any ruling
states that the Act is contrary to the 1945 Constitution.
In another section of the MK Act, that is Article 47, it is stated that the Court ruling
obtaining a fixed legal force since its completion is pronounced in the plenary session
open to the public;
18. That, when the logic is followed by Article 47 and Article 58 of the MK bill, it is uncertain
The ruling of the Court is not retroactive (nonretroactive). Given the determination
the acquisition of the seat of Parpol and the designation caleg is already done by the Commission
General Election (KPU), the nonretroactive ruling clearly does not provide
the benefit of the applicant if this plea is Granted. In fact, it has been
to be the jurisprudence of the Court since the termination of Number 006/PUU-111/2005
dated 31 May 2005 and Putermination Number 11 /PUU V12007 dated 20 September
2007, that one of the criteria legal standing which would bring to the door
the point of the principal examination gate is the possibility that
with the application of the application then the constitutional loss as
the postured will not or no longer occur. Therefore, in order for this verdict
8
providing a benefit for the applicant, the Court contains
in the amar ruling of an order to the KPU to implement
the counting of the acquisition of seats, most notably the determination of the BPP, based on the ruling
This, which the Court has done in Putermination Number 110-111-112-
113 /PUUVII/2009 dated 7 August 2009;
19. That given the determination of the acquisition of the Parpol seat and the designation of the elected caleg
has been conducted by the KPU and for the sake of legal certainty against the decision-
the decision which has been made KPU on one side as well as the interests of the petitioners in the
The other side, if the Court could consider to
eliminate the erga omnes trait of a Court ruling over a testing case
The Act and specifically apply it to the petitioners. With
as such, the applicant benefits from a submitted application
on the one hand and on the other there is no outstanding shocks if
this request is granted;
20. That for the sake of expediency and legal certainty, the petitioners are begging
please let the Court decide this case before the inauguration of the members
House of Representatives 2009-2014 was conducted on 1 October 2009 for
changes that occur if the application is granted will not
interfere with the state calendar.
IV. PETITUM
21. That based on the above description, the petitum in this request is as
following:
1. Grant the applicant request for the whole;
2. Article 205 paragraph (1) Law No. 10 of 2008 on Election
General of the People's Representative Council, Regional Representative Council, and
House of Representatives of the Regions (Indonesian Republic Gazette
Year 2008 Number 51, Additional sheet of State of the Republic of Indonesia
Number 4836) which reads, " Determination of the number of member seats
House of Elections Political Participant is based on the results of the whole tally
the legitimate vote of any Political Party Election participants who meet the provisions
Section 202 in the constituency concerned "contrary to
the Constitution of 1945 and not having a legal force binding along
concerns the phrase" which complies with the provisions of Article 202 in the constituency
9
is concerned ";
3. Ordering the Electoral Commission to carry out the tally
the acquisition of the House seat on the basis of the Court ruling;
4. Or, if the assembly of judges views other terms, please a fair ruling-
be fair (ex aequo et bono).
[2.2] Draw that to strengthen the controls, the petitioners have
submitted evidence of the letters, each given a Proof of P-1
up to the Proof P-2, as follows:
1. Proof of P-1: Photocopy of the State Basic Law of the Republic of Indonesia
In 1945;
2. Evidence P-2: Photocopied Act No. 10 of 2008 on
General Elections of the People's Representative Council, Council
Regional Representative, and the Regional People's Representative Council;
3. Evidence P-3: Photocopied Constitutional Court Number 22-24/PUU-
VI/2008;
[2.3] It is balanced that the petitioners have submitted a written conclusion
received in the Court of Justice on 15 September 2009, which
at the bottom stick with his request control;
[2.4] weighed that to shorten the description in this ruling,
everything that happened at the trial was quite appointed in the news of the event
the trial, which is an entity that is inseparable with
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the plea is concerning
the materiel testing of Section 205 paragraph (1) Act Number 10 of 2008
about the General Election of the Member of the House of Representatives People, House of Representatives
Regions, and the Regional People's Representative Council (Republican Gazette
Indonesia 2008 No. 51, Republic of the Republic Gazette
10
Indonesia Number 4836, subsequently called Act 10/2008) against Invite-
Invite Basic State of the Republic of Indonesia in 1945 (later called UUD
1945);
[3.2] Draw that before consider the subject of a request,
The court first will consider the following:
a. The Court ' s authority to examine, prosecute, and disconnect
pleas of the Applicant;
b. Legal standing (legal standing) of the applicant;
Against the two things the court argues as follows:
The authority of the Court
[3.3] weighing that one of the Court's authority is based
Article 24C paragraph (1) of the Constitution of 1945 and referred to again in Article 10 of the paragraph (1) Invite-
Invite Number 24 Year 2003 on the Constitutional Court (State Sheet
The Republic of Indonesia of 2003 No. 98, Additional Sheet of State
Republic Indonesia Number 4316, further called the MK Act) and Article 12
paragraph (1) Act 2004 (Indonesian Republic of Indonesia Gazette Number 8, Supplement
sheet of state of the Republic of Indonesia Number 4359) is the test of the Act-
Invite against the Basic Law;
[3.4] weighed that the applicant's plea was concerning
testing of the Act against the Basic Law, in casu Act 10/2008
against the Constitution of 1945, so that the Court was authorized to examine,
prosecuting, and disconnecting a quo;
Legal standing (Legal standing) The applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act and
The explanation, which may act as the applicant in the testing of the Invite-
Invite against UUD 1945 is those who are entitled and/or authority
its constitutionality is harmed by the enactment of an Act that
is required to test, that is:
11
a. individual (including groups of people who have shared interests)
Indonesian citizens;
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. country agencies;
[3.6] Draws also that the Court since the Number 006 /PUU-III/
2005 dated May 31, 2005 and Putermination Number 11 /PUU-V/2007 is dated 20
September 2007, as well as subsequent rulings, have been establish that
regarding the loss of rights and/or constitutional authority as
referred to in Article 51 of the paragraph (1) the MK bill must meet the five requirements
as follows:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific (specifically) and actual or at least a potential according to
reasonable reasoning can be certain to occur;
d. Due (causal verband) between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postured did not
will or no longer occur;
[3.7] Draw that the Applicant may have the right to be seen. As individuals
citizens of Indonesia who are candidates for the legislative elections
Representative of the House of 2009, consider Article 205 of the paragraph (1) Act 10/2008
harms their constitutional right to an honest and fair election.
as set forth in Article 22E paragraph (1) of the 1945 Constitution that is not
The applicant was elected as a Member of the House of Representatives from 2009-2014, so
The applicant has a legal standing (legal standing) for
applying for a quo;
12
[3.8] weighed that against the petitioners regarding the position
the law (legal standing) they were and attributed to the description in paragraph [3.5]
and paragraph [3.6] above, The Court argued for the following:
a. That it is true that the applicant is among the individual applicants
the Indonesian citizen who was the candidate for the House in the 2009 Election;
b. That, however, the petitioners regarding Article 22E of the paragraph (1)
Constitution of 1945 which is considered to be their constitutional right is not
precisely, because Article 22E of the paragraph (1) of the 1945 Constitution reads, " General Election
directly, general, free, secret, honest and fair any
five years ", is not a provision that directly authorizes the rights
of the citizen's constitutional rights. Article 51 of the paragraph (1) of the MK Act,
rather than the provision of the Election Act
periodic every five years based on direct, general, free,
secret, honest, and fair share of the constitution;
c. That again, Section 205 of the article (1) Act 10/2008 that reads, " Determination
The acquisition of the number of seats of the House of Representatives of the Party of Elections is based
on the results of the calculation of all the legitimate votes of any Political Party. Participants
Elections that meet the provisions of Section 202 in the constituency
are concerned ", there is no relation to the constitutional right to be postured
by the petitioners. This is because of Article 205 of the paragraph (1)
Act 10/2008 only regulates the mechanism of determining the acquisition
seat of the Political Party of the Election Participant in an electoral region as
the consequences of which the principle is prepared "parliamentary threshold" as
referred to in Section 202 paragraph (1) Act 10/2008 that reads, " Political Party
Election participants must meet the threshold of securer votes-
A lack of 2.5% (two five-perhundred) of the number of valid votes
national to be included in the determination of the vote. House seat acquisition ";
d. That if the tone of Article 205 is written (1) Act 10/2008 above, it is
that has the right and/or constitutional authority to
enlist the constitutionality is the Political Party of the Election,
not the candidates The legislature, because of Article a quo is about the way
determination of the election of the Political Party of the Election Participant for the House members,
not about the determination of the election of a potential House member;
13
e. That thus, the applicant is not eligible for
legal standing (legal standing) as in section 51 paragraph (1)
MK bill because it does not meet the requirements of the rights loss
constitutional as referred to paragraph [3.6] above;
[3.9] Draw that because the applicant does not have a position
law (legal standing) to apply for a quo, then the principal
plea is not need to be considered and assessed according to the law;
4. KONKLUSI
Draw that based on the assessment of the fact and the law in
above, the Court concluded that:
[4.1] The court is authorized to examine, prosecute, and disconnect
the application of the The applicant;
[4.2] The applicant is not eligible for legal standing (legal standing)
to apply for a quo;
[4.3] The subject is not relevant for consideration and assessed
according to the law;
5. AMAR RULING
By the basis of the Constitution of the Republic of Indonesia
in 1945 and given Article 56 of the paragraph (1) Act No. 24 of the Year
2003 on the Constitutional Court (Sheet of State) Republic of Indonesia of the Year
2003 number 98, additional sheet state of the Republic of Indonesia No. 4316),
prosecute,
cert the petitioner's unacceptable.
Thus decided in a Meeting of the Judges by eight
Constitutional judges on day Monday the fifth of October year two thousand
nine and spoken in the Plenary Session are open to the public on the day
14
Thursday dated October eight of the year two thousand nine by us eight
the constitutional judge, that is Moh. Mahfud MD, as the Chief of the Members,
Abdul Mukthie Fadjar, Maruarar Siahaan, Maria Farida Indrati, Achmad Sodiki,
M. Arsyad Sanusi, Harjono, an
