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Test The Material Constitutional Court Number 51-52-59/puu-Vi/2008 Year 2008

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 51-52-59/PUU-VI/2008 Tahun 2008

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karta, Telp. (021) 3921913, (021). 392790 Fax. 3921785, based on

Special Power Letters each dated December 12, 2008, which in

it acts for and on behalf of the power giver;

Next together are referred to as --------------- Applicant III;

[1.5] Read the pleas from the applicant I, the applicant II, and the applicant III;

Hear the captions of the applicant I, the applicant II, and the Applicant III;

Hear and read the written caption from Government;

Hearing and reading written captions from the House of Representatives;

Hear and read the experts from the applicant I, the applicant II, the Applicant III, and the Government;

Hearing the witnesses of the applicant II;

Checking the booklet;

Reading the written conclusion of the applicant I, Petitioner II, the Petitioner, and the Government.

2. SEATED MATTER

[2.1] A draw that the applicant I, has applied with

his application letter is dated 30 November 2008 which is accepted and listed in

The Constitution of the Constitutional Court (hereafter called

on December 2, 2008, registration Perkara Number 51 /PUU-VI/

2008, which was corrected and accepted in the Court of Justice on the date

15 December 2008 and 18 December 2008;

The applicant II has applied with his request letter

dated 2 December 2008 accepted and registered in Kepaniteraan

Court on December 2, 2008, registration Perkara Number

52 /PUU-VI/2008, which was corrected and accepted in the Court of Justice

on 16 December 2008;

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The applicant III has applied with his request letter

dated 15 December 2008 received and registered in Kepaniteraan

Court on 18 December 2008, registration Perkara Number

59 /PUU-VI/2008, which had been corrected and accepted in the Court of Justice

on December 23, 2008;

The applicant I, the applicant II, and the Applicant III each suggested

things as follows:

Applicant I

I. Preliminency

The state system of Semrawut The problems facing the nation today actually begin with

the securation of the state system, which from the beginning mixed up between

understanding authoritarian and democracy and also. Mix the democratic system

Presidential and Parliamentary. It cannot escape the impetuous

"Founding Father" we are in compiling the body bar of the Constitution, but so Bung

Karno in the speech of 18 August 1945 already has been amused to

reformulate the Constitution New ones. Very unfortunate 4 (four) times

The Constitution of the Constitution did not begin first with the changes "platform" and the new paradigm

that changed from an authoritarian New Order system, into a democracy;

The changes implemented directly The dive into the chapters and more

is reactive towards the infirmity and weakness that occurred during the New Order.

See the paradigm of the legitimacy of the government. During the New Order

the coming legitimacy of the government is from the House, this is because the election that

took place during the People's New Order did indeed try to mark the image of the party.

In the 2004 General Election, the people in the Election tried to mark the mark. Candidate Image

President-Vice President. It means a source of direct government legitimacy from

the people, not the party or the House. However, the paradigm of the source of legitimacy

the government of the state system as the mandate of the 1945 Constitution results

The amendment still remains, even adding to the power of the House. Similarly

in other fields, meaning the state system results 4 times the amendment of the Constitution

1945 is the continuation or derivative of the New Order system, and even more

the semrawut, as it is between the subsystem of the state. Distorting each other,

tracking and even asserting one with another. And for sure, the system

6

Our statehood has not been systemic, as between the existing subsystems yet

strapsued in a synergy and not yet as a totality;

The Basic Principles of the State of Democracy

Indonesia adherents democracy then the basic principle in regulating

the state system is the sovereignty of being in the hands of the people. Meaning sovereignty

is the property of the people. Universally for democratic adherents, the right of the people

is the innate human being with birth at all is not a gift

the State. This is what separates the authoritarian State of the Union,

where the right of the people is the granting of the State. Then the State functions in understanding

democracy is regulators, facilitators, and weak protectors. The position

The state in the democratic understanding is not a ruler, as

in an authoritarian state. From there, the Basic Law (UUD) of 1945

guarantees that sovereignty is in the people's hands and is exercised according to

The Basic Law;

The Occupation of the Constitution of the devotee of democracy wherever, at

The nature is just one of the sources of written law to run

the sovereignty itself. Sovereignty intended here is the highest right

in arranging, running, and or managing the State. That is the main principle

from the source of the power of the devotee of democracy, that is the people

sovereign and the Basic Law guarantees the exercise of such sovereignty.

Therefore, the nature of the Basic Law of 1945 as the Constitution

The state is essentially to protect and guarantee the rights

citizens as holders or owners " original" sovereignty;

The State Differents of Authoritarian and Democracy

In authoritarian adherents The State is responsible for

the people, the position of State is the ruler, then the right of the people is a given

State, meaning the sovereign State of sovereignty, not the People. Another feature

authoritarian adherents is, the State and Government are made one, then

when the Government fails, the country's impact is extinct. This was experienced

Majapahit, Mataram and other kingdoms in the archipelago, and the last one was

the collapse of the Soviet Union, et al. Another prominent feature in the authoritarian State

wherever is the Government is involved making the Act. Whereas

in adherents to the democracy, Ciri is primarily between the State and

7

The government is split (in the parliamentary system) or is sorted (in tArdi Mbalembout, SH., Erlina R. Tamheap, SH., Devita Aresti Hapsari, SH.,

Egidius Sadipun, SH., Brodus, SH., Ir. Koesnadi Notonegoro, SH., H. Sonie

Soedarsono, SH. MH., Yuliani, SH., Agus Saputra, SH., Sattu Pali, SH., C. Suhadi,

SH., The Hutasoit Faith Tower, SH. LLM., Julian Wahyudi, SH., Posma GP Siahaan,

SH., Robert Situmeang, SH., Ramses Situmpersons, SH., Rudy E. Situmeang, SH.,

DR. The Marnixon RC. Wila, SH. MH., David Aruan, SH. MH., Irhamsyah, SH.,

Medianto Hadi Purnomo, SH., Donny Fernando, SH. MH., Heintje W.

Sumampouw, SH., Johni Novian, SH. MH., Farid Hasbi, SH., all of it.

4

The Advocates who join in "The Human Rights & Rights Enforcement Team

Man" (TPD & HAM), with the address of the Proclamation Road Secretariat Number 69,

Central Jaeople, too,

can be removed in the middle of the road. Because the members of the House are representatives of the people, then in

the House of Representatives is no fraction institution. He's not a party at all. That is where

in the Legislative Elections, the people are trying to block the picture of the candidate of the House,

not the party picture sign;

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Cow Trade Elections

By ignoring the political logic of common sense that fortifying its birth

the democratic system, then as it did in the 2004 elections, in the Election

2009 will again occur. The following parties offer promises and programs when the party wins the election. While the promise-

the appointments and programs that are offered are not possible aliases impossible will

be implemented. Because in the presidential system as a program

The government is the promise and program of the election-winning Presidential Candidate,

at all non-party programs are no exception to the election-winning party

though. Similarly, if the Election is associated with the President's nomination and

Vice President, the parties have not been able to call

who figure would be proposed as the candidate for President and Vice President.

If any party dares to refer to the Presidential candidate and its vice president,

This will be constraint, that is, when the party cannot exceed the

minimum seat in the House or a valid vote in the election as

specified in Act Number 42 of 2008 on Pilpres, i.e.

20% Seats in the House or 25% of the legal votes in the election. So basically

the people voted in the Legislative Elections what? Party program, obviously not. It will be

Caprest-Cawapres couple as well. So what?

Meaning People are told to sign an "blank check" then submitted

to the political party administrator for the beef trading capital in search of it

Capres-Cawapres. The political party acts as a political calo

constitutional. This means in real terms, in the election of the western people choosing "cat

in the sack". This resource is due to the electoral order in system

presidsiil, it should be the Presidential Election first in the Legislative Elections, not

as we did in the 2004 Elections and will be repeated again on

The upcoming 2009 elections, where the Legislative Elections are first, are new

followed by the Presidential Election. If the baby is born, it should be the head.

First, then the foot. When born with a foot first, it is called

"sungsang" and it is very harmful to the health of the mother and especially the baby;

Of the democratic rules that ignore the political logic and the order-

the order of the political mechanism which is universally unorthodox, and plus

with minimal number of restrictions for the party or the combined party in

proposing that the Capres Couple and Cawapres, then the sovereignty that

11

his people in this regard the people's right in selecting its leader instead

fouled, constraint and is distorted by the Presidential Election Act it

alone;

The Power of Power New Order Heritage Parties

Basic secondary considerations, but important as well, determining the figure

the percentage for the party or the combined party to be able to nominate the President

is at all without basis and No political logic. The decision was clearly

laden by the interests of major parties who want to monopolize power. Three

the party in the New Order era is all supported by the Government in system

authoritarian statehood wrapped in the name of democracy. The system that

applied exactly like the Communist State system only with little difference

is in the presence of the DPA. The difference lies in the number of parties where in

The New Order contains 3 (three) parties, not just 1 party: the Communist Party.

But all three are puppet rulers of the New Order as in the State

Authoritarian. the good of the Indonesian people not to sue the parties

it was to be dissolved when the 1998 reforms occurred. Even to adulthood

this, the visible remains, are: the offices at the center, nor the area

of the New Order's legacy parties are in strategic places at

every city with a fairly luxurious building. compared to the new parties

of the people who grew up crawling after the 1998 reforms;

The Indonesian people are not suing and disbanding

These New Order relics are still not Got a welcome.

It was worth it. The good of the people was avenged. Law

A minimum limiting presidential election has 20% (twenty percent)

seats in the House or 25% (twenty-five percent) of legal votes. That is, this is clearly

based on the interests of monopolistis of the major parties of the New Order's legacy and

its derivatives that want to retain its power. A clear

contrary to the mandate of the Constitution of 1945;

Of any sense, if a percentage of 20% (twenty percent) of the House seat

or 25% (twenty-five percent) of the legal vote remains in effect, then

There is no need for a burning election + Rp. 9 (nine)

trilyun, since the result is predictable, namely the Republic of Indonesia is held

by arisan 3 (three) or 4 (four) install the hereditary rulers of the Order New

12

that wants to maintain power. Better the power of power alone,

alternates each year by the kroni New Order and its derivatives, anyway they are just

going to continue the old ways that real ones have ushered the nation and

the country is down. With the national leadership of figure that "again it again"

impossible the nation can realize a land based on desire and

the ideals of the people to quickly rise to return on par with the nations

Another, and capable of well-being with his people. Indonesia forward should not

continue to be mistaken, and increasingly squashed to the parties that opportunists as well as

greedy for control of the rights of the people. Impossible elite that only goes on

New Order ways will be able to build a new country free of

license contracts or concessions that are already impoveristing the people for

a handful of elites only. This country has to be led by a capable figure

giving new hope, which is really capable of building a government

a country whose state of the people is for the people in a sense that

truly. This is where the importance of "silent revolution", through the hands of the new leader

with new ideas, new solutions and the "platform" chosen through the process

democracy to break the shackles of existing political and legal systems.

So the people don't have to go their own way. The upward change to th

order of the Democracy process, in the presidential system, universal elections

the legislature is implemented after the election of the President (Pilpres). Thus

the people in electing his deputy in the House were already considering the character of the

President elected. Since the President is directly elected by the people for a period

certain (in Indonesia for 5 years), then he cannot be lowered in the middle

the road. And as the imposition of the House of Representatives is the representative of the psociety, nation, and country;

9. That the applicant is a potential Indonesian citizen to be able to

be elected and vote in the general election, either in the legislative elections

nor the election of the President and/or the Vice President while there is a party

politics Which is the one that has it;

10. That the applicant is in this regard as an Indonesian citizen as

referred to in Article 51 of the paragraph (1) of the letter of the Court, with

the enaccation of a portion of the General Election Act

the President, the applicant and/or Its constitutional authority is harmed

by the enactment of the Act;

11. That Article 9 of the Law No. 42 of 2008 on Election

General President and Vice President has required only the party or

the minimum party has 20% seats in the House or acquire

25% valid votes. in the Election;

12. That the formulation of the section that requires a party or a joint of the party

has 20% (twenty percent) of seats in the House or gained 25% (two

50 percent) the legal vote in the Election is the formulation of the section

strongly discriminatory, and turn off the opportunity to be proposed by the party

or a combination of parties and its applications elicits injustice;

13. That the applicant is an Indonesian citizen who can or potentially

to be ushered by the parties, but due to the application of the section in the invite-

the invite resulted in the political and departure rights of the applicant

endotheized and turned off;

That with the enacDoing of Article 9 of the Law No. 42 of 2008

about the Presidential Election and Vice President, it has harmed the right

19

constitutional applicant. The constitutional rights referred to by the applicant

are the rights set forth in Section 1 of the paragraph (2), Section 6A paragraph (1), 24 of 2003 on The Constitutional Court (later

The Court of Justice Act) stated that: " Constitutional Court authorized to prosecute

at the first and last level the verdict was final to test

legislation against The Basic Law, the authority of the state agency

the authority given by the Basic Law, severing

dissolution of the political party, and severing disputes about the election result

general ";

III. LEGAL SUPPLICANTS AND INTERESTS (LEGAL STANDING)

1. That Section 51 paragraph (1) of the Court of Law states: " The applicant is

the party who considers the rights and/or its constitutional authority is harmed

by the law, that is:

i. Individual citizen of Indonesia;

ii. 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 Republic of the Republic of the Republic

Indonesia that is set in undra;

iii. public or private legal entities; or

iv. state agencies ".

2. That the Constitutional Court in Decree Number 006 /PUU-III/2005 has

provides an explanation of the constitutional rights and losses

constitutionally 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 an Act tested;

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. Due (causal verband) between the loss and

the enactment of the Act is moveed to be tested;

e. It is possible that by the request of the request then

The constitutional loss postured will not or may no longer occur.

17

3. That the applicant is the individual applicant of the Indonesian citizen

as in Article 51 of the letter (1) the letter of Law Number 24

In 2003 of the Constitutional Court. The applicant is a citizen

Indonesia who is about to use his right to participate in

Government by becoming the Presidential Candidate when there is a political party or

a joint political party that will be nominated for him. The applicant assumes that

the enacgging of Article 9 of the Law No. 42 of 2008 on

The Presidential Elections and the Vice President (subsequently called the Act

Pilpres), do not comply with the Constitution's order, so the applicant feels

the rights and/or its constitutional authority are harmed by the enactment of

The Act. In addition, the applicant is a Purnawirawan TNI AD

who has been active in pro-democracy activities and is also active in the

writing, defense-about defense of the public interest

oppressed, donating thoughts for the nation ' s progress through agencies

swadaya society and community society outside the political party;

4. That the applicant has the right to participate in the general election

the President and Vice President, and be chosen by the Indonesian people. In

exercising the right of the applicant obtaining a guarantee of the equation

the position in the law and the government [Article 27 paragraph (1) of the 1945 Constitution],

the guarantee for obtaining recognition, assurance, protection, and certainty

the law the fair and equal treatment before the law [Article 28D paragraph

(1) of the 1945 Constitution], the guarantee of obtaining an opportunity that

equal in government [Article 28D paragraph (3) of the 1945 Constitution], and the right to

free of all forms Discrimination [Article 28I verse (2) UUD 1945].

All of it is one form of the embodiment of the sovereignty of the people

[Article 1 of the paragraph (2) and Article 6A paragraph (1) of the 1945 Constitution]. It is therefore not

may be constraint by the requirements specified in Article 9 of the Law Number

42 of 2008;

5. That explanation of Article 51 paragraph (1) of the Court Act states, "that

referred to as 'constitutional right' is the rights set in

The Constitution of the Republic of Indonesia in 1945";

6. That the applicant is a citizen of Indonesia living in the country

Indonesian law and socializes with a very

heterogeneous society, whether political, legal, economic, or cultural;

18

7. That the applicant is a citizen of Indonesia entitled to

recognition, guarantees, protection and fair legal treatment and

gets legal certainty in any activity doing;

8. That the right and/or constitutional authority of the applicant in the request

this is the applicant ' s right to be treated fair and equal in

the presence of the law, as well as obtaining the same opportunity in law and

the government of the law. advancing itself in champing its right to

the collective to build p>The Lawsuit To Save the Republic

This lawsuit is A small part of the petitioner's efforts in irruse

The beloved Republic and the fate of this nation's son. If this lawsuit is granted then

the people have a forward hope of choosing the President

which is guaranteed to stop this country's purview, and be able to

build a new civilization of Indonesia. The applicant itself has published the book

PrioritXX_ENCODE_CASE_CAPS_LOCK_Off The People as a pilot for anyone who will

run for Capres-Wapres to first fgenerally exercised;

That the provisions of Section 22E paragraph (1) and paragraph (2) of the Constitution of 1945 reads:

(1) "The general election is executed in person, general, free, secret,

be honest and fair every five years";

(2) " the general election hosted to select Board members

People ' s Representative, House of Representatives Area, President and Vice

The President and the Regional People ' s Representative Council ";

23

obtain 25% (twenty-five percent) of the national legal vote in

Election Members of the House of Representatives prior to the implementation of the Election

President and Vice President " Act No. 42 of the Year 2008

about the Presidential Elections and Vice President contradictory

with the Constitution of the Republic of Indonesia in 1945,

most notably Article 1 of the paragraph (2), Section 6A paragraph (1), Section 6A paragraph (2), Article 27

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

Article 28I verse (2) and paragraph (5);

3. Stating:

Article 9 reads: " The potential spouse is proposed by a political party or

the combined election party of the Election participants who meet the requirements

The gain of the least 20% seats (twenty percent) of the the number of seats

The House of Representatives or gained 25% (twenty-five percent)

of the national legal vote in the House of Representatives elections

before the implementation of the Presidential Election and Vice President " Invite-

Invite Number 42 Year 2008 on Presidential Election and Vice

President does not have a binding legal force;

4. If the Judge's Assembly opts another then we beg for justice that

adies it (suum cuique tribuere).

applicant II

That the applicant is testing Section 9 and Article 3 paragraph (5) Act No. 42 of 2008 (State sheet number 176 of the year

2008, additional sheet country number 4924 in 2008, subsequently called "Act of Pilpres") against the State Basic Law of the Republic of Indonesia Year

1945 (subsequently called "1945 Constitution"), for the following reasons:

I. CONSTITUTION OF THE CONSTITUTIONAL COURT

1. That Section 24C paragraph (1) of the Constitution of 1945 states:

" The Constitutional Court is authorized to judge at first level and

The final verdict is final to test the legislation

against the Basic Law, Cut off the agency's authority dispute

The state that its authority is granted by the Basic Law,

dissolves the dissolution of the political party, and dissolves the dispute about the outcome

general election ";

24

2. That Article 10 paragraph (1) of the Law Number 24 of 2003 on

Constitutional Court (subsequently called "MK Act") reads:

" Constitutional Court authorized to judge at first level and

the last one The verdict is final for:

(a) testing the legislation against the State Basic Law

(b) Republic of Indonesia of 1945;

(c) ..... dst.

3. That because of the object of this test request is the charge material

in Article 9 and Article 3 of the paragraph (5) of the Act of Pilpres against the Constitution of 1945, then

based on the foundation of the law and such matters above, the Court

The Constitution of the Law to perform such testing.

II. LEGAL STANDING (LEGAL STANDING) PEMOHON

1. That Article 51 paragraph (1) of the MK Act states:

" The applicant is a party that considers the right and/or authority

its constitutionality is harmed by the law, that is:

a. individual of the Indonesian national;

b. The unity of the indigenous legal society as long as it is alive and appropriate

with the development of the community and the principle of the Union of Unity

The Republic of Indonesia is set in an undrased invitation;

c. legal entity public or private; or

d. state agencies ";

2. That under the jurisprudence of the Constitutional Court, the Verdict

Constitutional Court Number 006 /PUU-III/2005 and Number 010 /PUU-III/

2005, the definition and limitations on constitutional losses arising

due to the enactment of a The Act according to Article 51 of the paragraph (1)

The MK bill, must meet the five conditions:

a. the constitutional right of the applicant given by UUD 1945;

b. The applicant ' s constitutional rights are considered by the applicant to have

harmed by an Act tested;

c. The constitutional loss referred to is specific and actual or

at least that of potential according to reasonable reasoning can

be assured of the case;

25

d. existence of a causal link between the loss and the expiring

The Act is being treated for testing;

e. It is possible that by the request of the request then

The constitutional loss postured will not or no longer occur.

3. That Article 3 paragraph (1) of Act No. 2 of 2008 on

The Political Party ("Parpol Act") states that the Political Party is

is the legal entity after being registered to the Law Department and

Human Rights and meets the requirements specified in

Article 3 of the Parpol Act and subsequent to the legal entity with

The Minister ' s Decision. The applicant is a political party that has been registered in

the Department of Law and Human Rights and has been passed as

the legal entity as the Decree of the Minister of Law and the Rights

Man Number M-03.UM.06.08 Year 2003 Therefore, according to the

The applicant is the statutory body of the law

applying for the statutory testing of the Law against the Invite-

Invite the Basic as the provisions of Article 51 of the paragraph (1) of the letter c Invite-

Invite the Constitutional Court;

4. That the applicant is a member of the General Election participant of the Year

2009, with the Number of Urut 27, which has been set by the Election Commission

General (KPU), as per the Decree of KPU Number 149 /SK/KPU/YEAR 2008

dated 9 July 2007 about Establishment And Draw Of Party Numbers

Politics Of The General Election Year Of 2009;

5. That the provisions of Article 6A paragraph (2) of the 1945 Constitution, reads:

The spouse of the Presidential candidate and the Vice President is proposed by a political party

or a joint political party of the election participants before the election

is the forwarding, the restrainting. Violation of or at least distortion

official by the Act on the political rights of the citizens and

violates human rights as it has been ordered

by the Constitution of 1945, in particular Article 27 of the paragraph (1), Section 28C paragraph (2), Article

28D paragraph (1), Article 28D paragraph (3), Article 28I paragraph (2) and paragraph (5), and

Article 21 of the United Nations DUHuman Rights of 1948;

V. PETITUM

Based on those above, the applicant please to toviding certainty, equality and the same opportunity for

the entire political party of the general election participants for propose

The spouse of the Presidential Candidate and the Vice President to be selected in

general election. On the other hand the provisions have been very wise

32

gives the opportunity to any person who is about to be

the President or the Vice President to nominate him with

form a political party aneneral election in Indonesia are

a pillar that upholds the constitutional democracy of Indonesia

Indonesia. This pole, should not be overruled by a gluttony and will

in power as well as the will to retain power by force

A majority in power. Because as a pillar and milestone

democracy, the holding of elections should not be harmed

the principles of democracy itself provide the participation room

the breadth for the people to be decisive. the path of government

country;

5. From the General Description of the Pilpres Act, it is apparent that the framework of thinking

The Speaker of the Pilpres Act that the strong support or the vote of the people

which votes a political party in the Legislative Elections will be the same as the vote

the people or voters who will elect the President and the Vice President in

The Presidential Election and Vice President. Whereas, in the Presidential Election and

Vice President, the people directly elect the Presidential Candidate and the Vice

The president is not electing the political party of the Presidential Candidate and the Vice

President. That political party as a democratic element that

sets up the aspirations of the existing community groups

The Republic of Indonesia cannot take over all rights

the constitutional citizen with reasons for effectiveness

governance. Because of this principle of effectiveness

that gave birth to authoritarian states, the tyrants countries in history

the human civilization. With a wrap for the effectiveness of this administration

which apparently underlies the basic framework of thinking the birth of the Law of the Pilpres,

so that the restrictions on the proposal of the Presidential Candidate Lead and

30

Vice President. The framework thinks it contains a danger to its guess

a state of constitutional democracy because of the tyranny of the upper majority

a minority. Aspirations of a growing minority and diversity were killed

by the reasons of the effectiveness and efficiency of the government;

6. That in addition, the framework thinks the author of the Pilpres Act

as intended in the third paragraph of the General Explanation of the Pilpres Act,

also shows the next fundamental difference of fundamental principles

incline against conflict. between the Pilpres Act with the 1945 Constitution;

The third paragraph of the General Description of the Pilpres Act among others reads:

.... In addition, the setting against the Presidential Elections and the Vice

The president in this legislation is also intended to affirm

a strong and effective presidential system, where the President and the Vice

President elected not only of the strong legitimacy of the people,

but in order to realize the effectiveness of the government is also necessary

the support base of the House of Representatives ";

This general explanation contrary to Article 9 of the Pilpres Act,

The condition of the condition support for 20% of the House seat or 25% valid votes

national to be able to propose a Presidential Candidate Partner and Vice

President. As strong as what House support is only 20% of seats compared to

with 80% of seats not in favour, if the President is only supported

by 20% who nominated him. Likewise, the 25% support requirement

national legal vote means no parliamentary seat support terms, if

following the framework of thinking of this Act how it might be just

with unseat national legitimate voice support, The president gets

effective support from the House. Thus consideration/explanation

the general Act of the Pilpres turns out to be contrary to the sections that

there in the Act and with the 1945 Constitution;

7. That the provisions of the Constitution of 1945, as the highest law in the country (the

supreme law of the land) are clear and light in Article 6A paragraph

(2), give equal and equal rights to the entire political party

Election participants either individually or in combination to

propose a Presidential Candidate and Vice President before

the implementation of the House of Representatives, the DPD, the President and Vice President and

31

DPRD. That is, the principle of equality has been expressly granted

and guaranteed by the 1945 Constitution to any electoral political party.

The rights granted by this constitution are called the right

constitutional;

Article 6A paragraph (2) of the Constitution of 1945 complete reads:

"The spouse of the Presidential candidate and the Vice President was proposed by the Political Party

or the combined political party of the general election participants prior to implementation

the election generic";

8. That under the terms of Article 6A paragraph (2) of the Basic Law

it is clear that the Constitution of 1945 is in order to guarantee certainty as well as

equal and equal rights to all the political parties of the Election participants,

limitatively mandates the requirements of the candidate Partner

President and Vice President in just 2 things:

a. Proposed by a political party or a joint political party of participants

general election;

b. The candidate for the Presidential Candidate and the Vice President

was implemented before the general election.

9. That both in terms of semantics and terms of constitutional meaning, the phrase

"political party or the union of political parties" has no meaning and other meaning

-whatever the meaning of it-except the political parties of the general election.

A political party that is not a general election participant cannot propose,

either individually or by joining in to propose

Presidential candidate and Vice President;

10. That the provisions of Article 6A paragraph (2) of the Constitution of 1945, have provided a very wide space

for the people to determine the nomination for the Couple

The Presidential candidate and the Vice President who will lead them.

Despite this nomination, it has been reduce the political rights of the people to

determine the nomination of the Presidential Candidate and Vice President directly

through an independent candidate, but the provisions of this UUD have been very

wisely prw, contains the meaning that there is no process

law or political process or process of democracy that is not

based on the provisions of the law and the constitution. apply.

The violation of the principles of this law state, is the

deviation that damages and damages the dictable state order-

citakan and idealized under the constitution of the 1945 Constitution;

29

3. That the establishment and birth of various laws in <shment of laws as well as

have been described above. The plugin principle has been violated by discriminating against other election participants ' political parties that

the provisions of the Basic Law should be treated equally in

proposing the spouse of the Presidential Candidate and Vice The President. The principle of justice has been violated by discriminating against the Parpol other election participants who should be treated equally in proposing the Couple

Presidential Candidate and Vice President. The prin the President at once for

The general election to vote for the House legislature, the DPD plus picks the package

candidates for President and the candidate Vice President of each Parpol

or the combination of Parpol ";

d. Pataniari Siahaan, (FPDIP) in a Plenary Meeting PAH 1 to 28th

September 2001 posited the following: we see that

The role of this political party is a factor that we should

grew in order to build a moderate democracy

current, so the role of the political party in implementing

the aspirations of the people include selecting the vice and the President. This

is the cornerstone of the PDI Struts ' thinking of the Struggle, why we

proposes that the Presidential election is at once

the implementation of the general election and the election of House members ";

16. That at the 24th Plenary Meeting of June 6, 2002, in

the fourth term of change, Andi Mattalata of FPG, once submitted

A proposed change to the sound change of Article 6A paragraph (2), by adding the words

" before the Election General to elect a President ", and added

Article 6A paragraph (3) that more lack reads,"that a political party that

referred to in paragraph (2) is the party or the joint political party

has a minimum seat of 35% ". This proposal is intended for the election

36

The president was done after the House election, DPD, DPRD and expected

The elected president has a high acceptable tability and will only

take place one round. In addition to that in the meeting Andi

Mattalata realized that this material was not sufficiently regulated in the Invite-

Invite because it concerns very important material. This fact

shows clearly that the addition of those terms and separation

two types of Elections are something that cannot be set up with the Invite-

Invite because it is not in line with the concept framework

built in UUD 1945;

17. That the nomination of the Presidential Candidate and Vice President by MPR

(let alone a very limited political party due to

requires the acquisition of a certain number of seats or votes) at the time

the formulation of the electoral chapter The president is highly feared by the members of PAH 1 as censorship in a breaking democracy

principle fair competition. This was put forward by members of the PAH 1 between

another: Haryono (FPDIP), at the Plenary Meeting PAH 1 to 28, dated 12

September 2001, posited as follows: " by that one

The President's choice should be open Extensive and non-existing competition

censorship. Please excuse me, therefore if any candidate is nominated

not directly, it is I suppose there is an indirect censorship as well. So

so that no censorship should be the people who determine his deputy ";

Based on this view the determination of the Presidential Candidate

and the Vice President by requiring a percentage of the acquisition of the seats

or a vote is a censorship form against the nomination of the candidate

The President and Vice President as opposed to the democratic principle

embraced by the 1945 Constitution;

18. That Act Number 10 Year 2004 on Establishment

Regulation Law ("Law Number 10/2004") which is

the direct mandate of Article 22A of the 1945 Constitution, has provided the corridor

as well as the clear principles of the establishment of the rules of the invite-

invitation to remain within the framework of the principle of the Indonesian legal state. By

therefore the formation of all laws in

Indonesia must be based on certain principles and principles,

among others:

37

a. Lower rules principles should not conflict with the rules

which is higher;

b. asas suitability between type and charge matter,

c. asas censure, humanity, nationality, family,

recognize, single bhinneka ika, justice, equal position

in law and governance, order and certainty laws; and/

or balance, uniformity and alignment.

19. That in fact the provisions of Article 9 of the Pilpres Act have harmed the right

the constitutional applicant due to the provisions of Article 6A clause (2) of the Constitution

1945, it is enough that the applicant as a political party or a combination of

the political party election participants, have been able to propose a Candidate Partner

President and Vice President before the implementation of the general election.

but with the enforcement of the Pilpres Act in particular the Section 9,

The applicant must meet other additional requirements as it has

described above, which harms the applicant. Based on that

it has been clear and clear that the provisions of Article 9 of the Pilpres Act have

contrary to Article 6A of the paragraph (2) of the 1945 Constitution as a provision that

is higher in the United States hierarchy

Indonesia;

20. That the provisions of Article 7 paragraph (5) Act No. 10 of 2004, express

determine that lower regulations should not be contradictory

with higher regulations (lex superiority derogat lex inferiori).

In the Indonesian penal hierarchy the 1945 Constitution is above

Act. As such, the Act of Pilpres should not be contradictory

with the provisions of the 1945 Constitution. Should be forming the Pilpres Act

paying attention to this principle and the violation of this principle

resulting in the provision of the Act could be declared not

having a binding legal force;

21. That based on the principle of conformity between the type and the charge material

the law is clear that the charge of the election bill in particular

Article 9, has set something that should be only adjustable/

loaded in The Basic Law because of such rules should be

at a level with the provisions of the Basic Law. If set with

38

The provisions of the Act, it is clear that such provisions are contrary to

as well as reducing and reducing the provisions of the Basic Act;

22. That the provisions of Article 9 of the Pilpres Act, have hit the entire principles

matter and the establier:always">

35

b. Happy Bone Zulkarnaen (FPG), in a Plenary Meeting PAH 1 to 28 date

September 12, 2001 stated the following: " FPG considers

that we could use the Election forum to select the nomination

or the candidate President, so that the people in person can come directly

choose who their candidate is if nothing reaches 50% + 1.

If in this way we may no longer do the alliance

after Elections but before the Election it should talk about being friends has been violated by ignoring the pride of electoral political parties

common in Indonesia even though they may not have received a significant

vote. The principle of commonality of position in law and governance has been violated by limiting the constitutional right of electoral participants in the supposed government

under the terms of the constitution being granted the right and the equal treatment.

The principle of balance and alignment has been violated by ignoring the balance of the various powers and peculaities held

by all the political parties of the general election participants;

23. Based on the description above, it is clear that the provisions of Article 9

The Act of the Act is contrary to the provisions of Article 6A paragraph (2) of the Constitution of 1945

and Article 22E of the paragraph (1) and paragraph (2) of the Constitution of 1945, hence should

be declared not to have a binding legal force;

C. 2. Article 3 of the paragraph (5) and Article 9 of the Pilpres Act that determines the execution of the general election of the President and the Vice President not simultaneously with the selection of the members of the House of Representatives, the Regional Representative Council, and the Regional People ' s Representative Council, contrary to the provisions of the Constitution of 1945 in particular provisions Section 22E paragraph (2) juncto Article 6A paragraph (2) UUD 1945

1. That the grammatical side of what is meant by "is proposed before

The general election is implemented" in the provisions of Article 6A paragraph (2) of the Constitution

1945, is the election to elect a member of the House, DPD, President And

39

The Vice President as well as the DPRD as referred to in Article 22E

paragraph (2) of the 1945 Constitution. If following the logic of the provisions of Article 9 of the Pilpres Act

that is "proposed before the implementation of the presidential elections and

Vice President" then the addition of the phrase "President and Vice President"

is an illogical, and child sentence "before the general election

President and Vice President" is something that is not necessary, because

it is unlikely that the spouse of the Presidential Candidate and Vice President

filed after the general election of the President and Vice President. So if

if the intent of the Basic Law is a proposal

The spouse of the Presidential Candidate and the Vice President is before the execution

General election of the President and Vice President, then the end of the sentence "before

The implementation of the general election" is something that does not need to be loaded

in Section 6A paragraph (2) of that. The assertion before the general election

in question is clear before the general election of the House, DPD,

President and Vice President as well as the DPRD conducted simultaneously

once in five years as contemplated in the Section 22E

paragraph (1) and paragraph (2) of UUD 1945. Furthermore, in the Act

Basic 1945, the only election in question is just elections

as in Article 22E terms (1) and paragraph (2) of the 1945 Constitution and

there is no other Election;

2. That the provisions of Section 22E paragraph (2) of the Constitution of 1945 specify " Election

general is held to elect a member of the House of Representatives

People, the Regional Representative Council, the President and the Vice President and the Council Local People's Representative ", and is associated with the provisions

Article 22E paragraph (1) that reads " The general election is implemented

direct, general, free, secret, honest and fair once in five

years ", contains the meaning that the selection the general was done in

at once in five years. Even if it lasts more than once,

it is only forced to do (emergency exit) because it is not

the completion of the election due to the absence of the Couple

Presidential Candidate and Vice President which is selected in the general election

that concerted

3. That of the birth history of the provisions of Article 22E paragraph (1) and paragraph (2) at

Third Amendment of the 1945 Constitution and the intention of the creator of the Basic Law

40

(original inten), holding the election of the President and Vice President

held in a concerted general election held

when selecting House, DPD, and DPRD members. This was stated

clearly at the meeting of Team Perumus regarding the election of the President, the day

Friday 26 May 2000. Members of Team Perumus of FTNI/POLRI are

Taufiqurrahman Ruki, emphasal once suggesting that: " Presidential candidate

and the Vice Presidential Candidate is set in a single package by parties

politics, election participants

The understanding of political parties here means that it is possible two, three parties

compose one package. And before the implementation of the general election means

when the party is running for Election then he is already

include reports that our Presidential Candidate, this! To the KPU and that

later on set in the legislation. " The same thing is put forth by

Yusuf Muhammad (Member of PAH 1 of FKB), at the Perumus Team Meeting

PAH 1, on Tuesday 6 June 2000, which stated that " that

there is a general election executed on the level national or

is done simultaneously, nationally and it is done in order

elect the President and Vice President, House members, DPD members and

members of the DPRD I, and members of the DPRD II. This is done nationally

and simultaneously within five years. " These two facts

ensure that the birth of the Presidential election section relates to

the simultaneous elections and the Candidates for the Candidates President and Vice

The President was submitted by political parties or a joint political party before

the simultaneous national elections;

4. That was more assertive to Slamet Effendy Yusuf as Chairman of the Commission A

Annual Session of 2001, which was also Deputy Chairman of the PAH I of the MPR Workers Agency,

which answered the question Tjetje Hidayat Padmanegara, a member of the F-KKI,

member of the Commission A ST MPR RI 2001, November 5, 2001 which

asked about the entry of the Presidential election as part of

Election. In this case, Slamet Effendy Yusuf described the following:

" I tried to explain because I was in the process

the perumusation. So it is, indeed, on this concept,

The whole president later in the election called directly it

held in the general election held together

41

when selecting the DPR, DPD, DPRD, then President and Vice package

The president so depicted there will be five boxes. So, the box for

DPR RI, the box for the DPD, the box for the provincial DPRD, the city's DPRD box

or the county and the box for the President and the Vice President it is, so

The image is indeed i a general election, are in the five

year of the year described at the time of the general election there were 5

(five) boxes for the DPR RI, the box for the DPD, the box for the DPRD

provinces, the city or county DPRD boxes and the box for the President and

44

Vice President. However, Article 3 paragraph (5) of the Act of Pilpres is set

on the contrary by stating that the election of the President and the Vice

The Presidence President is done simultaneously

in five years with five ballot boxes;

5. That if viewed in terms of state finance, efficiency as well as social aspects

and penitentiary, the establishment of a general election implemented

simultaneously in one time, certainly more effective and efficient and better for

The current people already feel too much of the type of election

that they have to deal with. In terms of the financial terms of the country, it is more and more monetary and economic, much less the country in which it is now difficult to

increase the welfare of its people. In such conditions,

the welfare of the people who should be the main focus with the implementation of

a more efficient democracy without violating the democratic principles of it

alone. Likewise, with the Election also reducing the factors-

social stability factors, time efficiency for the people, the Parpol Election participants

as well as for the Presidential Candidate and the Vice President participating

matches;

6. That these factors have been very well considered

by the perumus changes in the 1945 Constitution, such as being delivered members

PAH 1 when formulating the way the election of the President and Vice President is,

among others:

Soewarno, of FPDIP stating: " The election was held in unison

and once, both the President and the Vice President,

concerns Central House Members, DPRD and Representative Council

Regions, so as such will be efficient work and also

42

The results are maximal and avoid possible social and political risks

not we want ";

7. That of the above description, there are four conceptional frameworks about

the general election in this UUD. First, UUD intends that

the general election is held every five years and avoided

Elections more than one time in five years, except for the circumstances

emergency, i.e. when there is no Candidate The president was elected to the election that

at the same time. This concept is strongly related to the intent

minimizing the burden of political, social and economic costs that should

be issued for repeated elections, due to the country's condition

Indonesia which is economic level and His education is not good Because

the consideration is also, so the formulation of regional head elections is not

affirmed with direct elections by the people in Article 18A.

Therefore at the time of the change of the Constitution regarding the election

The President is only two alternative thoughts developed, which is the nomination

The spouse of the Presidential Candidate and the Vice President is done by the people in

the election The simultaneous public is selected by the MPR if no Couple

Candidates earn more than 50% more, or a nomination by MPR

which votes for the two Presidential Candidates and the Vice President who will

directly elected by the people. With such thoughts the maximum selection

only lasts one time, and only possible twice if there is no

The candidate spouse is elected in the simultaneous election;

Second; which is to give sovereignty to the people directly to

select and determine its President, without any sensorship either from

the representative agency (MPR) what is again by the political party. Since avoiding

sensorship on the sovereignty of the people is the proposal for the nomination of the candidate

The president was done by the MPR and his election was carried out directly by

the people were rejected. It was also the opposite proposal for the nomination to be nominated by the people

by election and election as well as the election by the MPR was rejected.

Under the proposal of the two proposals, again to avoid the censorship

over the people's choice. In carrying out his sovereignty. Now with

The Pilpres Act of censorship done by a political party, it is clearly very

contrary to the spirit of the UUD change;

43

Third; i.e. the middle path between the giving of roles to the political party and

the individual candidate. At the time of the change in the UUD changes,

there is a proposal for individual candidates to be possible based on the Constitution

this, but with a variety of technical concerns

then this individual candidate is not can be included in the UUD,

then only gives a role to the political party to submit

candidates, will but Parpol ' s role is relaxed so it makes it easier for

any person to run through the party politics, only with

the terms of the political party it is a parpol of the Election participants;

Fourth; that is related to the building of political parties and systems

a strong presidential government. The intention of building this political party

was created by giving the political party an exclusive role to

to propose a Presidential Candidate and the Vice President who participated

The election of the President and Vice President directly by the people.

does not give any restrictions or conditions that are difficult for the political party to

file a prospective partner unless it is only the condition that the candidate that

concerned has been established as an Election participant. Then mean

to strengthen a strong presidential system created with the presence of

the relationship between the President and the Vice President was elected with Parpol

His supporters are clear. It was hoped that the political parties had

to build a strategic coalition since before the simultaneous elections were implemented,

so that each of the Parpol next to the side of the party was able to close the party,

also to bring up the Presidential Candidate's partner. and the Vice President.

The coalition will be further strengthened in the second round-if there should be-

so that only two powers emerge, that is the force

governing and the power of the counterweight beyond the Government which is composed of

the political parties that support the Presidential Candidate Partner and the Vice President

An unelected President;

8. That based on all such background, it is clear that

and the purposes of the provisions of Article 22E (1) and paragraph (2) of the 1945 Constitution to

holdt is exercised after the implementation of the House of Representatives, DPD,

and the DPRD;

9. That thus the provisions of Article 3 paragraph (5) of the Act of Congress

set the time for the execution of the President and the Vice President after

the conduct of the Speaker of the House, the DPD, and the DPRD and the provisions of Article 9

The Act of Pilpres which reaffirm that the implementation of the Presidential Election

and the Vice President is done after the Election of Representatives, DPD and

DPRD, after obtaining a picture of the electoral seat of the House and the vote

the national legal party of each political party the next used to

determine whether a political party has qualified to be able to

propose a Presidential Candidate and Vice President contradictory

with Article 22E of paragraph (1) and (2) juncto Article 6A paragraph (2) of the 1945 Constitution.

Due to the provisions of Article 22E paragraph (1) and paragraph (2) juncto Section 6A paragraph (2)

Constitution of 1945 is seen from any side as it has been deciphed

previously, mandating the implementation of the Elections was held five years

once simultaneously to select members of the DPR, DPRD, DPD, and

elections for the President and Vice President. It is of course very

adverse or at least real potential harm to the right

constitutional applicant as the political party of the general election that

guaranteed its constitutional right by UUD 1945 to propose

The spouse of the Presidential Candidate and Vice President before the general election

is implemented;

10. That because both such provisions are intertwined and not

may be separated from one another then the cancellation of one section

requires to cancel the corresponding article or provision.

Based on the That, then, legally, the imposition of Article 9

The Act of Pilpres, carries the logical consequence of the distreatment of Article 3 of the paragraph (5)

The Act of Pilpres;

11. Based on the above, it is clear that the provisions of Article 3

paragraph (5) and Article 9 of the Pilpres Act determine the implementation of the election

The President and Vice President are not simultaneously with the selection of members

DPR, DPD, and DPRD But it will be after the election.

45

DPR, DPD, and DPRD are contrary to the provisions of Article 22E

paragraph (1) and paragraph (2) juncto Article 6A paragraph (2) of the 1945 Constitution;

IV. Conclusion

Based on these considerations and considerations above, it is clear

it is proven that:

a) The constitutional right of the applicant guaranteed by the 1945 Constitution has been harmed

or at least real potential aggrieved by the enactment of the Act

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

The President of the provisions of Article 9 and Article 3 of the paragraph (5). As such

The applicant has a legal standing (legal standing) to submit

testing Act No. 42 of 2008 on Elections

President and Vice President in particular Article 9 and Section 3 of the paragraph (5)

against the Basic Law of the Republic of Indonesia in 1945

(UUD 1945);

b) Section 9 of the Act 2008 Section 9 Act 2008 on

General Election of the President and Vice President (State Sheet

176 of 2008, Additional State Sheet 4924 Year 2008)

has been contradictory with the provisions of Article 6A paragraph (2) of the paragraph (2) of the Constitution of 1945 and

Section 22E paragraph (1) and paragraph (2) of the 1945 Constitution;

c) Section 3 of the paragraph (5) Act Number 42 of 2008

on the Presidential Election of the President and Vice President (State Sheet)

Number 176 In 2008, The Addition Of State Sheet Number 4924 Year

2008) has been contrary to the provisions of Article 6A paragraph (2) of the 1945 Constitution

and Article 22E paragraph (1) and paragraph (2) of the 1945 Constitution.

And therefore the applicant pleads to the Assembly of Justice of the Court

The Constitution of the Republic of Indonesia deigned and decided

The request for testing this applicant is as follows:

V. PLEA

1. Grant the applicant's request entirely;

2. Stating that the applicant has a legal standing (legal standing)

to apply for testing Act No. 42

2008 of the Presidential Election and Vice President

(State sheet number 176) In 2008, An Extra State Sheet

46

Number 4924 of 2008) against the State Basic Law

Republic of Indonesia in 1945 (Constitution 1945);

3. Stating that:

a. Subject matter Section 9 of the Law No. 42 of 2008 on

General Election of the President and Vice President (State Sheet Number 176 of 2008, Additional State Sheet Number 4924

year 2008) contrary to the provisions of the Article 6A paragraph (2) UUD

1945 and Article 22E paragraph (1) and paragraph (2) of the 1945 Constitution;

b. Section 3 paragraph charge (5) Act Number 42 of 2008

on the Presidential Election of President and Vice President (State Sheet Number 176 of 2008, Additional Gazette Number of State

4924 Year 2008) contradictory to the provisions of Article 6A paragraph (2)

Constitution of 1945 and Section 22E paragraph (1) and paragraph (2) of the 1945 Constitution;

4. States that Section 9 and Section 3 of the paragraph (5) of the paragraph (5) Invite-

Invite Number 42 Year 2008 on the Presidential Election and

Vice President (State Gazette number 176 of 2008, Supplement

Page of State Number 4924 Year 2008) did not have the power

binding laws.

The Petitioners III

I. About the Constitutional Court's Authority 1. That in Section 24C paragraph (1) the third change of the Basic Law

The State of the Republic of Indonesia in 1945 (subsequently referred to as "Constitution of 1945") reads: "The Constitutional Court is authorized to judge on the first and last level The verdict is final to test the legislation

against the Basic Law, severing the institution's authority dispute

the state whose authority is granted by the Basic Law, cut

dissolution of political parties and severing disputes about results Selection

General ";

2. That materially testing (materieele toetsing) of

Article 9 Act No. 42 of 2008 on the Presidential Elections and Vice President, which was promulded on 14 November 2008, as opposed to Section 6A paragraph (2), Section

47

28C paragraph (2), Article 28D paragraph (3), Article 28H paragraph (2), Article 28I paragraph (2), Article 28I paragraph (4), and Article 28J paragraph (1) of the Constitution of 1945 is based on Article 10 of the paragraph (1) letter a and Article 50 of the Law Number 24 Year

2003 about the Constitutional Court;

3. That Article 10 paragraph (1) of the letter a and Article 50 of the Law No. 24

of the Constitutional Court, reads as follows:

- Article 10 of the paragraph (1) letter a: " (1) The Constitutional Court is authorized to judge on the level of the Constitution. first

and last the verdict is final for:

a. Examining legislation against the Basic Law

State of the Republic of Indonesia in 19The Presidential Election and the Vice President clearly have impeded the constitutional right of the The applicant either personally citizens of Indonesia and as a political party legal entity for

nominates and nominated as President and Vice President in

General Election of the President and Vice President of the Year 2009;

That the constitutional right of citizens to vote and be selected (Rights ro vote and Rights to by candidate) is the rights guaranteed by the constitution, the International Law and the of the Political Party or

The Combined Political Party;

Due to the cause Multi-interpretation that gives birth discrimination and

then ultimately ignores or obscured even

violates human rights, hence the term " Partner Lead

proposed by the Political Party or the Combined Political Party participants

the elections that meet the most seat acquisition requirements

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

obtain 25% (twenty-five percent) of the national legal vote

in the Member Elections The House, before the implementation of the Election

President and Vice President " on the provisions of Article 9 of the Act

No. 42 of 2008 on the Presidential General Election and Vice President it is indicating The uncertainty of the law, this is precisely the opposite. The purpose of the establishment of the 2008 Act of Law on the Presidential Election and Vice President, as it turns out in the considerans weighed in: " (a) that the general election directly by the people is

means of the implementation of the people's sovereignty to generate

democratic country government based on Pancasila and

The Constitution of the Republic of Indonesia Year 1945; (b) that

General Election of President and Vice President

democratic and civilised through the participation of the people as wide as

based on direct, public, free, secret, honest and fair principles for

elect the President and Vice President ";

6. That notices UUD 1945, Article 28C paragraph (2), stating:

" (2) Any person has the right to advance itself in

for the collective right to build

society, nation, and country ";

55

and also Section 28I (2) and paragraph (4), which reads as follows: " (2) Any person is entitled to be free of any discriminatory treatment

on any basis and the right to receive protection against

that discriminatory treatment ";

" (4) Protection, submission, enforcement and fulfillment of the rights

human is the responsibility of the country, Especially the government ";

That the definition of Article 28C paragraph (2), Section 28I paragraph (2) and paragraph (4),

it has been described and outlined in Law Number 39 of 1999

on human rights;

That after reading Article 9 of the Law Number 42 of 2008 on the Presidential Election and Vice President where the article only accommodations parties that acquire seats in the House and disqualify parties that do not have seats in the House while the petitioners and many other parties of the election participants are does not have a seat in the House, but has a figure that

will if it is Candidate for President and Vice

President in the upcoming 2009 Election;

Thus The Article 9 is extremely discriminatory and

contrary to Article 28C paragraph (2), Section 28I of paragraph (2) and verse (4) UUD 1945;

7. That in addition, Article 9 of the No. 42 Act of 2008 on the Presidential Elections and the Vice President is impressive the arrogance of a major political party that was the winner of the 2004 election that did not give the opportunity to Democratic and non-legalized political changes of social leadership have provided an alternative to prospective couples more varied than many sources or should be going through this Act, the major political parties. willing and in good faith give the odds

to the candidates of Parpol others, including independent candidates. In

the current reform era, the public should be given the opportunity

to choose the best leader among the good, not just

pick that one-it only and be status quo;

56

Thus that Article 9 does not encourage the change

national dynamic political leadership, but instead

defending and protecting the political leadership that is not

willing to change;

8. That if associated with substance Article 28C paragraph (2) of Article 12 of the Parpol Act states the political party is entitled

obtain the same, equal, and fair treatment of the State, then

Article 9 of the Act No. 42 of 2008 on the Presidential Election and Vice President it certainly does not give equal, and equal treatment to fellow political parties, as distinguished between the political parties that have seats in the House and the who do n' t have a seat in the House, it has hurt the coveted justice by The public, including our petitioners as the political parties of the Election of 2009, which will follow the party

the highest people's democracy to elect a candidate for the nation and

Unity State of the Republic of Indonesia (NKRI);

There should be Article 9 of the No. 42 Act 2008 on the Presidential Election and Vice President should be able to be realized in concrete, in political life in the Republic of the Republic

Indonesia;

9. That UUD 1945, Article 28D paragraph (3) states: "Every citizen is entitled to the same opportunity in government.", section

and this paragraph has been further outlined in Law No. 39 of 1999

on the Right Human Rights Article 43 paragraph (1), paragraph (2), and paragraph (3) which

reads as follows:

Article 43 paragraph (1) 1. Each citizen has the right to be selected and voted in

general election based on the equality of the right

direct, public, free, secret, honest and fair vote in accordance

with the provisions of the rules of the legislation;

Article 43 of the paragraph (2) 2. Each citizen has the right to participate in the government with

directly or by the intercession of his chosen representative, freely,

according to the manner specified in the laws of the laws;

57

Article 43 paragraph (3) 3. Every citizen can be appointed in any government office.

That Section 9 Act Number 42 of 2008 on nt and his equal, fair, equal and equal treatment have the right to be elected or voted to be lost., because it is possible to propose a spouse of the Presidential Candidate and the Vice President in the presence of Article 9. that only a political party or a combined political party that meets Seat acquisition requirements

at least 20% (twenty percent) of the number of House seats or

gaining 25% (twenty-five percent) of the national legal vote in

Election members of the House;

That between Section 6A interpretation;

Without diminuating respect for the Assembly of Judges, that the judge in

in the disconnect also uses the preferences asas, that is lex specialist derogat

legi generali; lex superior derogat legi inferiori ; and lex posterior derogat

legi priori. In this case, the most appropriate legal asas are lex

64

superior derogat lg Committee

MPR Workers On May 24, 2000 Discussion Of The Proposal Of A faction

Chapter III Of The 1945 Constitution On Government Power

Country;

16. Evidence P-16: Photocopying Tread Of The Ad Hoc Committee Lobby Committee On Workers

MPR dated May 24, 2000 The Rumusan Chapter III UUD

1945 on the Power of the State Government;

17. Evidence P-17: Photocopying Treatise Team Perumus Committee Ad Hoc I Governing Body

MPR Workers May 26, 2000 Requirement Requirements

Voters;

18. Evidence P-18: Photocopy Of The Meeting Of The Meeting Of The Team's Lobby Team Ad hoc i Workers Agency

MPR dated June 6, 2000 Election Discourse;

19. Evidence of p-19: Photocopy of the Ad hoc committee Meeting of ad hoc I, lobby meeting, and

meeting of the MPR Workers ' Body Meeting on June 6, 2000

about the Election;

20. Evidence P-20: Photocopy Of The 39th Meeting Of The Ad hoc Committee On The Body Of Workers

MPR dated June 6, 2000 The Authority on the authority

Election;

21. Evidence P-21: Photocopy of the Ad hoc Committee on the ad hoc committee on the labor agency MPR date

July 3, 2000 The review of the election and the Pit Stop

President;

Proof of the Petitioner III

1. Proof Of P-1: Photocopy Of The Establishment Of The People's conscience Party;

2. Evidence P-2: Photocopied Akta Establishment of Democracy Reform Party;

3. Evidence P-3: Photocopying Of The Establishment Of The Indonesian Party Prospered;

4. Evidence P-4: Photocopy of the Establishment of the Labour Party;

5. Proof Of The P-5: The Photocopy Of The Establishment Of The Founding Of The National People ' s Party;

6. Evidence P-6: Photocopy Akta Establishment of the Republika Nusantara Party;

7. Evidence P-7: Photocopy of the Decree of the Minister of Law and Human Rights RI

No. M. HH-18.AH.11.01 2008 dated April 3, 2008

on the Enactment Of The People's Party of conscience as an Agency

Law;

8. Evidence P-8: Photocopy of the Decree of the Minister of Law and Human Rights RI

No. M. HH-20.AH.11.01 2008 dated 3 April 2008

62

about the Provision of the Democracy Party Update as

The Legal Agency;

9. Evidence P-9: Photocopy of the Decree of the Minister of Law and Human Rights RI

No. M. HH-39.AH.11.01 2008 dated April 3, 2008

on the Passage of the Indonesian Party Prospere as Agency

Law;

10. Evidence P-10: Photocopy of the Decree of the Minister of Law and Human Rights RI

No. M. HH-43.AH.11.01 2008 dated April 3, 2008

about the Labour Party Unrest as the Legal Body;

11. Evidence P-11: Photocopy of the Decree of the Minister of Law and Human Rights RI

Number M. HH-19.AH.11.01 2008 dated April 3, 2008

about the Enactment of the National People's Care Party as

The Legal Agency;

12. Evidence P-12: Photocopy of the Decree of the Minister of Law and Human Rights RI

No. M. HH-37.AH.11.01 2008 dated April 3, 2008

about the Unrest of the Republika Nusantara Party as the Agency

Law;

13. Proof P-13: Photocopy of the Election Commission's Decision Number

149 /SK/KPU/2008 on Redemption and Draw

The Number of Urut Political Parties General Election Participant of 2009;

[2.3] A draw that in addition to submitting written evidence, the applicant I,

the applicant II, and the applicant III have submitted the expert and the witness who has

captions under oath in the January 28,

2009 trial, as follows:

The applicant I

Dr. Soetanto Soepiadhy, S.H., M.H. Reading with saas provisions of Article 9 of the Act Number

42 of 2008 on the Presidential Election of President and Vice President, which

reads, "The candidate's spouse is proposed by the party's political or joint party

The politics of the Election participants who meet the requirements of the acquisition the least seats

20% (twenty-prosen) of the number of House seats or gained 25% (twenty

five procents) of national legal votes in the House of Representatives elections, before

implementation of the Presidential and Vice Presidential Elections President ";

63

1. "Lex superior derogat legi inferiori

The provisions of Article 9 are multi-tafsir (ambiguity), as there is more

than the one norm in it. While the theory of law asserts,

that any chapter or verse must have one norm, in order not to multi-

exegs. If there are more than one norm, multi-

interpretation;

That the Article 9 carries the "dispensation norm" (vrijstelling) and

"the command norm" (gebod). "Norma dispensation" (liberation) is poured in

sentence parent proposition: a candidate's spouse is proposed by a political party or

the combined political party of the Election participants. Instead, the "norm of command" is switched

in a child's proposition: which meets the most seat acquisition requirements

a little 20% (twenty procents) of the number of House seats or gained 25% (two

prosen) of the national legitimate vote in the House of Representatives elections.

Whereas, before the implementation of the Presidential Election and Vice President is

captions of time;

In this case it shows, that "the norm is dispensed" and "norm

commands" as something of a contradiction. It can be explained, that the dispensation

or exemption (as a wewremembrance) of a political party or a joint political party of the Election participants to propose a prospective partner,

but otherwise a political party or a joint The political party was ordered (as an obligation) to meet the requirements of the most seats

a little 20% of the number of House seats or to obtain 25% of the national legal vote

in the House of Representatives elections. Is this not a contradiction? In legal theory

it can be said, an order and a dispensation (liberation), cannot apply together. So, it is restively between an order and a dispensation is a captive (tegenspraak). Relations between these two norms, in logic called contradictory relationships;

Meaning, if Article 9 of the Law Number 42 of 2008 has

more than one norm, and happens conflict norm (antinomi)- which cannot apply together-then the section becomes multi-

10. Evidence P-10: Photocopy Of The 25th Plenary Meeting Of Ad Hoc I Governing Committee

MPR Workers On 6 September 2001 The Discussion on

Chapter II UUD 1945;

11. Proof P-11: Photocopy Of The 26th Plenary Meeting Of Ad Hoc I Governing Committee

MPR Workers On September 10, 2001 The Discussion on

The Change of Chapter II of the 1945 Constitution;

12. Evidence P-12: The Photocopy of the 28th Meeting of the 28th Plenary Committee Ad Hoc I Governing Body

MPR Workers On September 12, 2001 The Discussion on its formation, which is the atmosphere and demands of reform for

is a democratic joint-joint as a correction to the regime. ruler

An authoritarian New Order, as well as political parties as his accomplices

at that time were still surviving and influential until now. It is not

it is surprising that the larger parties of the New Order

are conscious or unconscious now still maintaining perceptions and

his egocentric insight, even trying to develop dominnsi

as well as maintain its importance during the reformnt-and undeveloped quality is definitely slums.

The presidential elections and Vice Presidents should not have been testing the quality

already achieved from A person at the time of the candidate, but the election

is primarily a forced event to develop the quality

which is already achieved to a higher level, towards the effectiveness of justice and

the welfare of the people.

If election takes precede than selection, then the formalities, procedures, laws-Act No. 42 of the Year

2008 -- are becoming more major than the substance and the reality it rules, and

the quality competition becomes uneven. That's what's going on at

Indonesia. The quality of the candidates for the Presidential candidate has no chance

to be shown how brilliant it is, and more importantly, not

gets the chance to be sharpened, tested, and developed in the interaction

that is set.

fatal result: win more due to votes than because of winning

quality; all parties (which the contestant wins and the loser, yes parpol,

yes the organizers, yes the voters) are not getting smarter as the election is;

The power to maintain coalition stability in the cabinet reduces power to

running errands; the process of becoming a statesman does not happen.

Usai Election President and Vice President, the entire nation is not being

more intelligent. Sound, popularity, and money do not reflect, just

add to the political muscle, and if the integrity principle is violated, what happens is

decomposition. Instead, the quality competition forced all the Election participants

68

thinking and thinking, getting sharper and generating an increasingly

solution and detailed until it appears to be the difference between those participants, and

can be seen differently and give the para a chance. selector to

vote with the clarity and support of the implementation of the rules. So

the money is right to be number two and popularity becomes healthy because

contains.

On that basis, the provisions of Article 9 of Act No. 42

In 2008 about the Presidential Election and Vice President in order to not

apply, as it does not have binding legal power. And

further, hold on to the provisions of Article 6A clause (2) of the Act

Basic 1945 expressly granted equal rights to the parties ' political party

Election President and Vice President to submit the Presidential Candidate or

The Vice President candidate. It does not discriminate between political parties based on

the acquisition of seats or votes. Thus selection will be seiring-in line

with election.

4. "Fundamental Rights"

In the end, it may be possible to examine the provisions of Article 9

Act No. 42 of 2008 on the Presidential Elections and

Vice President, where the charge is clear. conflicting with

fundamental rights set in the Basic Law of 1945, that is

the provisions of Article 28; Section 28C paragraph (2); Section 28D paragraph (1) and (3); Section 28H

paragraph (2); and Section 28I paragraph (2);

Why is this problem more swusing at fundamentals right?

If the world's existing constitutions are studied,

can always be found setting up three groups of charge materials, namely

setting about: (1) the protection of human rights and citizens; (2)

a state arrangement arrangement of a country; and (3) the restriction and division

state duties of duties;

The arrangement of human rights protection,

contains the meaning, that the state cannot and should not be acting

arbitrary to its citizens, including also legal entities

"political parties";

In the history of human rights development, where in the century

XVIII (concept natural rights) was more depanting the rights over freedom, and

69

XIX century (concept human rights) was more depanting the rights to the equation,

so that the right to equality was above the right to freedom, then the century

XX (fundamental concept rights) received both rights That's (rights to freedom and equality) as basic rights (basic rights);

Further, the fundamental concept of rights is eating natural rights -

with its rational, universal nature, Democratic-as positive legal

rights (positive law);

By As such, Section 9 is contrary to the fundamental

rights, i.e. blocking the rights of citizens and/or the legal entity "party

politics" to obtain the equality and opportunity equality

governance without discrimination as warranted in the provisions of the Invite-

Invite Basic 1945;

Prof. Dr. M. Soerjanto Poespowardojo 1. That the expert description is in the critically acclaimed distinction

essential (distinction) between the fundamental rights and sovereignty of the people that is

The fundamental philosophical as mandated by the 1945 Constitution on one side

and Article 9 of the Law No. 42 of 2008 (Law No. 42 of 2008)

which governs the President and Vice President's Election process

procedural technicality other parties, as judged by the truth and

abate by Petitioner;

2. The Rights and Sovereignty of the People as mandated by the Constitution of 1945

on the dasamya is not a gift by anyone but is a hakiki feature

and a constitutive dimension embedded in human self inherits

(attached) in its existence as a private person. On that basis

men demand fair and equal treatment and equal equal

harkat and dignity. As a consequence of human rights and

the sovereignty of the people must always be held in full and respectable respect

as the highest value and size in the human nature because of its properties

hakiki and inalienable, In the sense that the dasamya cannot be revoked where,

at any time and under any circumstances;

In the meantime Article 9 of the Law No. 42 of 2008 concerns the arrangement

the implementation of the rights and sovereignty of the people is in the Election process. President

and Vice President and therefore are procedural technicality, in Meaning

70

formed situationally with the back of actual conditions at the time

past elections,

and it seems to be ahead if it's not anticipated-it's clearly visible, that

67

all emphasize election rather than selection;

Election oriented "sound", is selection more at "quality".

The sound is vulnerable to the temptation of money: votes can be purchased And sold. Instead,

the quality is immune to the temptation of money: the quality cannot be bought or paid

with the lf-role-

alone and together to the nation

a large

. Indonesia. There's some thought here. There is a

assuming Indonesia is a former Dutch colony. That's it. Taufik

Abdullah, the historian of LIPI and supported by Ben Anderson of the University

Cornel believes that the Islamic factor as a unifying culture

a nation-state (nation-state) is also very large, aside from certainly factor

the economic social deal in shaping an independent state that

modern is marred by figures such as Sukarno, Ha

its technological form, evolving forms of ideas, as well as the shape-

form of social organization, which is increasingly hard to respond to changing times.

Losing this flexibility is coupled with loss in harmony,

leading to social divisions with various reasons that could

arise. The dominant group that is still trying to impose the old paradigm

will slowly disintegrate with the emergence of

a variety of creative views some people are able to deal with at the time

new, new demands with originality and increasingly confidence

thickens;

Various events in Indonesia are a harbinger of rigidity or rigidity

as an indicator of the decline of the nation ' s cultural quality. From the new, holistic paradigm goggles, all of those events are intertwined, unrefractive to be encoded

with each other. The problem is, there are many who use the old "

paradigm in trying to solve the problem, so a piece of it.

74

and tambal-sulam. One of the key words is inequality. Good inequality

the natural and human nature, where all the time the environment is tortured by

various forms of greed so nature also becomes less friendly

due to Iimbah, pollution, the scarcity of clean water, up to It's an outrage

nature. Not to mention the social inequality between human beings, with various

reasons that can appear on the surface. But what the musti touched is

the fundamental root that can at once solve the problem in an

integrated, whether it is politically, economically, culturally, and otherwise-lain;

The fundamental problem is, anything? Or what is the nation ' s priority

now this?

First is the Territory God, Second Union and Nationality, Third

Kemartabatan. From an individual outrage, the anger of the mayarakat,

the anger of the minority, and with all three of those should

be considered for determining the state of the autonomy of the Iuas

or federal. Not upside down. Talking about the shape of the country with the basics

that is yet to be clear and fragile. So that now comes a lot of trouble, which

actually reflects the confusion. The frame is not yet available but

The image is already dismembered. So spread out;

The problem is very complex. Where should we start?

The Muts of skeletons think about the nature of man and humanity. Then

how the device-device role that could put the harkat

humanity was treated precisely. Then, how it is connected

between the principles and the device is given meaning in its interactions in life

everyday, both in work and in a relaxed atmosphere. In

this understanding, humanitarian, social processes and technology roles as well

management into one synergistic unity in order to uphold

yesterday;

Then how is the frame of mind? Applicable? Almost at all

ha!, the old paradigm is still so dominant, while it is device-

management devices (including technology), social and political devices

which partially oppresses not perceived as it is already a process

the daily?

75

To answer that, we need to look at the instant of cultural history

technology. It has been recognized that the role of science and skill, which

many of which are embodied in the form and capabilities of technology,

shows a very significant difference in the society of socialism

the beginning with Industrialist society today. Marx through his Grundrisse

actually has given the basics of thought to that direction, certainly with

an imaginative interpretation of that writing. It is explained that

the interests of the workers in work, which implied an engagement

vary in abilities, should participate in determining rationalization

and innovation-social processes. From the process it was supposed to be a variety of creations

the technology that led to "working" into a living pleasure and

is not a necessity to burden life itself;

Such a goal can only be achieved if the workers were not only

placed as part of a force of nature laid out in an

production process, but instead the laborers had to be active in regulating the range

the force of nature. Transition to such an industrial society

requires a fundamental change in economic culture. Culture

where the distribution of wealth that is during this time is only represented in

the form of various commodities is being sued back, because of the wealth

in fact that is the actualization of the insani resource, which

mediated through material goods of course, but does not mean

both are identical;

The world is shifting towards the "Paradigma of Organ's Society". Is n' t

it requires repressed, fundamentally, interconnectedness

among the nation's components and its binding factors that must be synergistic,

equivalent, not oppressive, and Open. The history cornerstone of the country-

The nation is how that could help this explanation?

We could learn the history of another nation, in addition to also reviewing the history of

our own nation. The first is to see what exactly it becomes

a nation ' s binding factor. Why, for example, European nations that

are separate in countries, when migrating to the American mainland to form

an American nation with the motto "melting pot". While

a portion of the other to the northern hemisphere forms the Canadian nation with

the motto "mozaic" where the binding factor of unity as a nation is political

76

and the economy, while each nation ' s culture remains developed

respectively. Somewhat different from the Americans who embodied the

one American culture;

The history of the Indonesian nation must be studied carefully. What factors

unites us as a nation. How to process when youth consciousness

dating back to the emergence of Jong Java, Jong Sumatra, Jong Ambon, and others-

another. Finally join in the Youth Pledge, which marks the momentum

nationality. How the role of various forms of social, cultural

and political forms since the 1928 Youth Pledge is then serty already

begin to spread widely around the world, in various countries, consisting of the

environmental fighters, consumer defense groups, feminists, fighters

social minorities of the economy, fighters. Human rights, and others. which

the values and paradigms of the corporate economy do not apply anymore. Together,

The power is getting bigger and bigger and more and more widespread throughout the entire hemisphere;

How is it that in Indonesia that is currently being extremely vulnerable to

ssroads. If not immediately

acting and addressing the globalization correctly, then Indonesia is headed to

the destruction, unwitting, but surely going to happen;

So the government does n' t have much of a choice. "Take it or Die" or more

known as "The Death of Government". If the Government's forward

still wants to survive and play a role in this new paradigm then

bureaucratic orientation government should be changed immediately to public

services management.

repel the colonial rule. But furthermore, we are witnessing in history, that

the effort to fill this independence turned out to not achieve optimal results because

ideological fights then dominated the political dynamics that led to

fall The power of the government. Because at that time

our nation can be said to be a non-productive nation until later

gives birth to a New Order;

In many countries, people form a party, though small, be allowed to do

Elections. These gurem parties grew out of necessity

certain societies in anticipation of the change. While in

Indonesia it appears that the gurem parties will not be allowed to

participate in the Election due to the threshold and others

restrictions.

80

It's ancient and it won't last. It's an internal age. Everyone gets access. If

usage is blocked, the people have their own way. Yeah, it should be fine.

only. Because if it was forbidden, they would have opted for "Golput" because

felt his aspirations were not represented. This phenomenon can also begin to be seen in

many countries. In many countries, this small party is considered to be the carrier of the idea-

a new idea that has not been seen in the existing parties. As

a company, these innovations must be given place to

the company is not "obsolute". So are the parties. All ideas

start from small. If you refer to such a large amount of time, it is the old thing

the new wrap. It's okay, too. But usually this is necessary

a strong leader who can change the old color towards the renewal.

If not so ago what the new wrap means if everything is still

the old one too;

Already I Say in a previous chapter, just look at what's happening in the world.

The new Alliance and Coalition, which has linked hundreds of groups and

worldwide networks, are created for non-hierarchical, non-bureaucratic and anti-government purposes.

violence. One example of a world coalition is International Amnesty that

campaigns on human rights. Green Peace, One World for One

People, and others. This type of organization is an effective new form,

constantly showing how the implementation of the world ' s vital functions

such as environmental protection, the struggle for economic justice and

the struggle for rights human, can be achieved through local action cordination and

regional based on global principles. These adherents are already starting

many scattered around the world, in various countries, consisting of the

environment fighters, consumer defense groups, feminists, fighters

economic social minorities, rights fighters human, and others which

the values and paradigms of corporate economics do not apply anymore. Together,

these powers are getting bigger and bigger and spread across the entire hemisphere;

They are constantly giving the substance changes to the new age and

the vision of the future reality, the awareness of a large number The public will form

who will not want to be influential in the political arena, and possibly even

crystalline in a new political party;

International Relations Expert of Georgetown University, Washington D.C.

United States, Dr. M.A. Muqtedar Khan explains globalization as

81

a symptom consisting of three major developments. First is

Capital globalization and economic integration into a single market. Second,

The development of transportation and communication technology that makes space

being fast is irrelevant. And third, the convergence of interests in the

groups and the multinational corporation that blends

returns the social forces at a global level. Three developments that

are a single symptom it is often also described as appearing

a world society (global society) and is a manifestation of culture

world (global culture);

Similar to with MacLuhan with its "global village" its, the world is just an

village only. Those who view globalization as economic integration,

many talk about the "world's reach" (global reach), the world that is not

(borderless world), dreams of buana (global dreams) and ends-

ends to "the end of the nation" (the end of the nation-state);

Free market waves and globalisation are retesting the concept and

holiness (solidity) of the form "nation-state" (nation-state) in the world.

This wave anyway that has driven all the countries to set back

"nation state corporation" (nation-state corporation) which is being choreoalized

to be able to rein in global integration elegant and confident.

The governments around the world are being bended for Reformulate

their role to preserve the existence of the existence. In an era of "market

driven", the role of the Government will also be assessed from its performance in the mechanism

market. Whether his performance interferes with market conditions, whether his policies

overload the entire system as it is not his ability to keep

the balance. Whether the Government ' s role is already efficient from the glasses

modern enterprise management;

The global debate between "Market Forces versus Government Forces" strongly

draws. The role of the Government is increasingly less day taken over by the

market mechanism, let alone a weak, slow, inefficient government

plus any more corrupt. Then the issue of the state failed was not impossible,

it could even be imbasted on the threat of the existence of a nation state. Because

such a government would only be a burden for its people and make

the whole system due to high-cost bureaucracy;

The corrupt and inefficient government will face directly with

82

An increasingly day market mechanism increasingly offers efficiency and costs

the cheapest management but with the best service. This free market mechanism

directly confronts the people so that the people democratically can

determine its options. Indonesia at the croe of nationalism

in the increasingly asymmetric or timpled international pergaulan scene.

Nationalism is currently interpreted as superficial. Even often just with

pelvis images of founding figures of the nation, which is no other purpose

for the election victory alone. The right thing to do is to go through,

review and develop the minds of the nationalism of the nation's founders

we, instead, are ignored. In fact, often what happens is treason

against the nationalistic thoughts of the.

Grateful to the information technology that can be a means that can be

coup de banque's "coup de banque". You can

imagine, actually the banking function is very simple, just

administration of the record plus and minus alone with little variation

calculations, why it becomes the king that governs and determines the fate of the sector-

88

other sectors. There must be something wrong;

You can imagine, how the>

the world of business, pushing for a redefinition of trade and investment,

health, entertainment, governance, work patterns, trade, production patterns,

even the patterns of intersociety relations and between individuals. Which is

a challenge for all nations, society and individuals;

Among the low-riuh euphoria comments of the world figures on globalization,

there are two figures who are my favorites, namely Noam Chomsky and Umar Ibrahim.

Vadillo. Both of them are anarchist thinkers, but my experience

concludes both of these characters are true and "No Nonsense". And

Islam Indonesia has a central role on changing the world if

the religious consciousness of the hakiki is not only the basis of movement, but rather it is the basis of a footing of worship and life's guidance. Days;

I have my own memories of Noam Chomsky, the great teacher of MIT, USA. That time Chomsky was invited to speak at McGill University Montreal

Canada, where I went to college. What ' s amazing is the long line winding-

twists are already lined up a few hours before his presence. I'm in.

The queue. When the gate was opened, I was barely part of the entry,

because the room was solid, so I squatted and launched my

between the tall, tall, tall, tall, tall, long-standing bule feet that stood at the door. My alresult

was thrown in the room and rolled over to the front row in the front row

and confronted Iangsung with the professor. While the show was in "relay" in

many rooms, but I was very lucky to be in the room where

the professor was. Among the many questions that are always with the answers

accompanied by aplaus of the visitors, a senior professor from McGill

86

asks: "What exactly makes you so famous in

various parts of the world?", Noam Chomsky replied with just about it:

" Simple. Because I'm not making it up. I only convey

the feelings, thoughts, and hopes of so many oppressed people around the world,

and of course they feel what I am telling you ". Back room

rumbling with applause. In that occasion, anyway, I first

learn about the order "copy right" (copyright protection) and "free trade"

(free trade), two bush terms contradictory to each other, which

turns out to be To be a tool to defend the inequality of this world. That is why

Noam Chomsky allows anyone to spread his work freely.

Then, on this occasion I translate the two chapters of the chat

Chomsky with David Barsamian who I consider to be relevant to deliver

The introduction to the nature of globalization and of course has something to do with Indonesia;

Umar Ibrahim Vadillo, was a friend I knew in 1999 when he was an advisor to PM Mahathir Mohammad whereas I helped

The government of BJ Habibie through Adi Sasono leading the Department

Koperative & UKM. We have often met in the efforts of building the Society

Serantau (Malaysia and Indonesia) are advancing and intelligent with a peaceful path.

One time, we once argued for hours even days.

Passed Vadillo remind me that what I did was a waste of nothing.

He said there were only two possibilities to improve this world. First

must be super-rich beyond the directors sitting in New York and

then changing the system of global capitalism into a fair and

oriented system, or the second way as guerrilla-oriented as it is. performed by

WITO network (World Islamic Trade Organization) by moving

the power of the people from country to country to return to the economic system

based on gold currency (other real commodities) so that the system capitalism

global financial, which trades paper currency and various shape

its derivative so that it causes "bubble economy", to collapse with

itself;

The statement I always remember is the monetary sector controls 76% of

activities in this world, the rest is new is divided by various real sectors.

The inequality is the source of world problems such as poverty, environment

life, rights, violence, terrorism, and others. Let's go back to see

87

The colonial history and formation of the nation-state (nation-state). When the nation-

nation was called "independence", it was actually the colonial left two (two) bombs

time, namely the Central Bank whose job was to print the currency of the paper, and one

again was the Government whose duty forced the people to using the eyes

the paper money. These two things have become the financial system's control tool

the world to this adult. So actually the people are not completely independent.

Because the most important thing is still controlled by other parties, not the hands of the people.

This is the essence of the sovereignty of the people and of real democracy, which

should be questioned And taken back by the people. The role of the government that

understands that this history will be redefined

its role for the people, thus staying alive (remains a role), because

otherwise, the Government will only be a burden. people, and if this is what

happens then there will be a social revolution where many thinkers call it

with the term "the death of government" in parallel to the process "the death

of money" and "the "Death of inflation." Because basically, the Government is that

that is not a fundamental problem, it's also being used by the global financial system

Our team, with Umar Ibrahim Vadillo, currently serves as

chairman WITO, is making a prototype in Kelantan Country with

implementing the new paradigm "Gold Dinar Economy" thoroughly as

The model of the economic model to the front of the ang is more equitable globally;

We have recently witnessed how a mountain of ice "monetary economic sector

" is falling out and hitting the entire country. This new symptom is

beginning, and it will continue if there is no attempt to remotest

the system fundamentally. As we can learn from history, crisis

this paper money-based finance continues to repeat periodically, and so far

crisis handling is still on the treatment of symptoms, not at the root

model that has Real failure, then do not expect the world to survive

in a relatively short time;

Merror, destruction will be difficult to avoid wisely with depaning

its national interests, then he would enjoy the wisdom of globalization not only

passively when he came to his country, but instead he boarded.

85

globalization to benefit even greater gains from globalization that

is enguling another nation. Thus, it is true, and it is not

that it may be preventable with a moral or conscience measure. Any nation

should not blame a friend who reached out for help,

94

General election implementation. The meaning of this section is that the proposal

Presidential candidate and Vice President by Parpol or the combined Parpol participant

general election and no other provisions set the requirements

for the proposal by the political party. Then in Article 22E of paragraph (1) that

declares the general election to be executed in person, general, free,

honest, and fair every 5 years. The merectly, that is, " In the name of the arrangement and not the restriction he says, then use the statistika number without basis when it raises whether it is 1%, 5%, 10%, 15% or 20% To castrate the sovereignty of the people, eliminate the people's right to be nominated President and Vice President. Comot statistical science in the wrong way, so with gamblang showing the violence of his work as a clear holder who clearly betrayed the lender;

Is exacerbated. In the name of instituting the people's aspirations, it is only the party or the union of the party that can nominate the President and the Presidential Candidate. However, the Constitution does not prohibit any candidate outside the party line. Thus it can be interpreted as not to preclude any candidate outside the party line. Because when parties become rigid, obsolute and cannot absorb the aspirations of the people, while internet and sms technology is increasingly reaching out across the people (the last data is around 100 million subscribers), so the forms of access And communication can reach the people, so it's petty and naive if the arrangement or the restriction is done in the name of ease. A mother Loren alone is using a technology facility with "type REG spaces blah ... blah ...", why then this facility is considered to be of no benefit to the people giving aspirations. It was not impossible that Saurip Kadi or Fajrul Rahman competed with Mama Loren to organize the people for the sake of a better future;

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When a chess race between humans and computers is finally won by a computer, it should be that human beings realize that their role as caliph is not a robot dictated by statistics that attempt to negate any small amount of time. The existence of the people with a percentage, man is a very high-sense creature that's different from the robot. It would be possible for MK to not pass the suit, if not later, the noble judges of the Supreme Court have been referred to as robots trapped in statistic numbers, misimplementing them. It definitely does not want;

In terms of the era where "machine age" definitively shifted towards

"system age", when the mechanical society shifted towards the society

organic, when the flow of reductionists soon will be replaced by a holistic flow,

Indonesia is full of the expectation of a scunking future. Indonesia can

as "victor". Provided that it is built is an Indonesian where the mosque

without a wall, a church without walls, vihara, pura and agenteng without walls.

Inbound the boundary. To find the nature of man and humanity. Interpreting

life with an awareness that in essence God wants every human being

enter heaven. It has never been unprepared that this world was created for

the physical infighting and terror and the mind of God's tallest creation.

the derailer. A life where the meeting of elements of humanity

becomes a radiate and a reality that unites the nation. An

Indonesia that "Toto Tentrem Kerta Raharjo", in which the majority of its people

the world's largest Muslims, rediscovered its civilization, exemplified

in the non-memorable behavior of verses without meaning, be it. world pioneer who

rahmatanlil alamin. Peace for the universe.

The applicant ' s Expert II

Prof. Dr. Asep Warlan Yusuf, S.H., M.H.

1. That the Constitution of 1945 is as well known as the state of the law and

democracy, this is seen in Article 1 of its meaning

is that the State of Indonesia is a legal state, which contains a variety of

things fundamental regarding the nature of the state of law, recognition, and

protection against human rights, power division,

governance under the Act, judiciary

arbitrage, legal certainty, commonality in Before the law and the government,

93

serves the general interest, legal supremacy, the constitution that is based

on behalf of individual rights, legal supremacy, the grounded constitution

on the rights of the individual, and so on. An element of the state of law may also

be seen in Article 7A of the 1945 Constitution whose meaning is that the President

may be terminated if it commits a violation of law or crime

the weight. So the President can be dismissed not for policy reasons

or the performance of the President or Vice President. Then the legal state joint

can be seen in Article 7B of the 1945 Constitution which states that

The stop of the President must be done through testing or trial

by the Constitutional Court. The meaning of this section shows that

discontinuing the President and the Vice President from office after being examined,

on trial, and disconnected by the Constitutional Court at the request of the House of Representatives. With

other words, the DPR and the MPR are not able to and merta dismiss

directly the President and Vice President of his office. The state joint

the law also contained in Article 24 of the paragraph (1) of the Constitution of 1945 which means that

the establishment of judicial power both the Supreme Court and

The Constitutional Court in its holding its power must be independent,

is not affected by other powers as well as enforcing the law and

justice. In this context the Constitutional Court judges the President and

The Vice President at the request of the House should be completely free of pressure

and anyone ' s influence as well. The 1945 constitution also adheres to democracy, that

in Article 1 of the paragraph (2) which states sovereignty

the country is in the hands of the people and done according to the Basic Law.

The article is that power the original, highest, full, not

divided, and constantly on the people, so that the nature of the section

this indicates that state organizers must be for and based

at the will of the people. A democratic state can also be seen and stated

in Article 6A paragraph (1) which states that the President and Vice President

are elected on one pair directly by the people. The meaning of this section

is for the filling of the President and the Vice President done

directly by the people without going through any agency intermediary as well;

2. A democracy can also be seen in Article 6A (2), which

states that the spouse of the President and Vice President was proposed by

the political party or the joint political party of the general election participants before oration, so that the people as its shareholders,

could Invoking a social contract is clear, measurable, quantitative and there

A benchmark of time. In other countries, candidates are arguing about

various policies that are ushered in for various topics according to

the dialogue audience. The debate on the candidates is so exciting and exciting.

91

so that the people can actually drop the polyhan according to

its interests.and

stated in Article 22E of the paragraph (2) of the 1945 Constitution that the general election was for

100

elect members of the DPR, provincial DPRD/county, DPD, and President and

Vice President, so that there will be five ballot boxes. Overview

at that time when a political party or a joint political party of the Election participants

filed for the Presidential Candidate, then between the Presidential Candidate and the Vice Presflict with Article 6A of the 1945 Constitution;

Therefore, if the 20% requirement is declared contrary to

Constitution of 1945 then the provisions of Article 3 of the paragraph (5) must be changed be Election

General President and Vice President are conducted simultaneously time

with Speaker of the DPR, DPD, and DPRD, for reasons,

under Section 6A paragraph (2) of the 1945 Constitution of the President and Presidential Candidate

proposed by Parpol or the joint Parpol prior to the implementation of the Election, it means

is an exorcist of the Presidential Candidate and Vice President by Parpol

done before the legislative election or at least concurrently with the

presidential election. If combined with the selection of the President and Vice President

in conjunction with the DPR, DPD, and DPRD elections, then will

an exceptional efficiency of the use of resources, both resources

human and financial resources as stated explicit in

Article 2 of the No. 42 Act 2008, which stated that

The Presidential election is done effectively and efficiently;

Prof. Dr. Indria Samego

Based on the perspective of political engineering (political engenering) is required

Political development as it once did in the Order of the Order

New though it was not implemented. But now there's no construction

98

politics. Therefore, according to the party expert is a democratic institution

that championed the party, personal interests cease after

party interests request, and party interests cease after

of the country's interests. requested, but the problem is in

in fact not;

Hook with expert democracy proposes, Indonesia not long ago

democracies so as not being able to be monopolied by parties.

Thus, if anyone wants to appear as a given nation figure.

Special for the party, let us deinate the party, how much the party number

most importantly is building the party system that leads to

two groups, ruling or oposition. To the fore we stop talking "nasakom",

ideologies, things, so if the Islamic party should not just sell the verse

only, the Christian party is not just talking about primordial norms.

Based on the above description, according to the expert, Article 9 of Law No. 42 of 2008,

not having a strong base of the 1945 Constitution;

Then a hook with Article 3 of the paragraph (5) Act No. 42 of 2008, according to

Election experts the President and Vice President exercised at the same time with

the implementation of the House of Representatives Elections, DPD and the DPRD, for the reason, first,

from the economical side, if the Presidential Election and Vice President are implemented

in conjunction with the implementation of the House of Representatives, the DPD and the DPRD

are separated at a very expensive charge. Accordingly, it is better

and the funds are directed to the more positive its use.

Second, there is political fatigue, the tired, politically tired people;

The Applicant Witness II

Gregory Seto Harianto The 1945 Constitution changes in the MPR at the time began with the mind

how to reduce the President's power obtained from Article 1 paragraph (2)

Constitution of 1945 stating: " Sovereignty in the hands of the people and exercised

fully by MPR. " So MPR holds fully the sovereignty of the people,

but later in the explanation of the Constitution of 1945 stated: "The president is

mandataris MPR." So, the sovereignty of the people as it is held by the MPR

handed over to one person, the President. Thus it can be understood that

the President ' s power became so overwhelming. Because it appears a deal,

that this should be reorganized;

99

If the President is declared not to be a mandataris, then how

maintain the presidential principle? Then at that time the first idea came out of

Golkar Party who wished for a direct presidential election. Initially

the idea was much opposed because there were two things to worry about. First,

is considered to be at odds with fundamental staat norms in particular to the four

Pancasila stating: "The wisdom led by wisdom

the wisdom in the deliberation of a representative." Second, the upper consciousness

the people's readiness to carry out the election of the President directly. In the end

The debate was only recently resolved in 2001. There is even one verse

in Article 6A, which is verse (4), was only completed in 2002;

When speaking of direct Presidential elections, then it appears

the question, who will be nominating? The faction of the Group's envoys that

first strongly proposed the reinforcement of the party as a translation part of

the representative system. A spiritualization led by wisdom wisdom in

a representative deliberation, had to go through a political party. Therefore, in

finally the perumus of the change in the Constitution of 1945 agreed that to

strengthen the party, Article 6A paragraph (2) of the Constitution of 1945 was formulated: " The spouse of the candidate

The President and Vice President are proposed by the political party or the combined party

politics of the election participants before the general election was conducted;

So, it was agreed that the political party or the merger

the political party of the Election participants was in the care of the Candidates

The President and Vice President, for not wanting to disavow the union rights.

Every one could create a political party, but also agreed in order

the setting of the right to nominate the presidential candidate and the Vice President it

only the political party is already set as an Election participant;

Then it appears question, how if the Parpol Election participants amount

much like the 1999 Elections that were then followed by 48 Parpol. As it is in

Article 6A paragraph (3) of the 1945 Constitution is declared a Presidential Candidate and Vice

President who obtained a 50 + 1 vote with 20% in the entire area,

directly appointed as President;

Inside the 1945 Constitution undifferentiated between the Presidential Election with the Election

legislative. All of it is a general election which is then set s; page-break-after:always">

97

The support or seat of the House is very open and public-known

regarding its objectivity;

That the law has rationality of value, norm, efficiency, and

technical feasibility. In the context of setting the general election

must be based on such rationality that the general election must

have value, justice, certainty, commonality, have the norm, obviously, not multi

interpretation, no conflicting with higher, moral laws,

and can be implemented, as well as consisticant referred to

is specific (specifically) and actual or at least potential that

according to reasonable reasoning can be certain to occur?, and

3. Whether there is a causal relationship (causal verband) between the loss and

the enactment of the Act is being moveed to be tested.

On those questions above, the Government briefly can

deliver things as follows:

1. Against the applicant II by register Number 52 /PUU-VI/2008 (Party of the Month

Star) as a political party that has a representative in the DPR-RI that has

follows the entire process of discussion and has given

its approval of the The a quoAct, then the Government

argues that the submission of the provisions of the provisions of the provisions

above by the applicant II is not appropriate. Politically, the political parties that have been

107

co-provides its approval in the entire discussion process

The a quo Act is bound for the approval

against the a quo;

2. Against the applicant with the register Number 51-52-59/PUU-VI/2008,

the status as a political party (new) the 2009 election participants, according to

The Government, that it does not adversely affect rights and/or

authority Its constitutionality, due to the Presidential Elections and the Vice President

is organized after the elections of the House of Representatives, DPD and the DPRD. In addition to

that, the provision does not only apply to the petitioners but also applies

for all the political parties of the Election participants whether it is the "great" and

party of the "new" party. There is no guarantee for any political party in the election

The upcoming legislature will acquire the least 20% seat (twenty

percent) of the number of House seats or obtain 25% (twenty-five

percent) of the valid votes. Nationwide in the House of Representatives elections. By

so the Government argues that there is no constitutional loss

that is special or actual for the applicant;

In addition to those of the petitioners, the political parties of other elections remain guaranteed

by The Act to be able to propose a spouse of the Presidential Candidate

and Vice President if it gains a seat at least 20% (twenty

percent) of the number of House seats or obtain 25% (twenty-five

percent) of the valid vote. nationwide in the House of Representatives elections, even the

Applicants can join the party Other Election participant politics

to be able to propose a spouse of the President and Vice President.

From the description above, the Government argued that the applicant

could not elaborate on the existence of the rights and/or

constitutional authority that occurs upon the enactment of the provisions of Article 3

paragraph (5) and Article 9 of the Law No. 42 of 2008 on Election

General of the President and Vice President [vide Article 51 of the paragraph (2) Act

Number 24 of 2003 on the Constitutional Court];

Based on that, the Government has argued that there is no

and/or there has been a constitutional loss and/or constitutional authority of the

applicant to the enactment of Law No. 42 of 2008 on

Election General President and Vice President, because that's the legal position

108

(legal standing) the applicant in this test application is not

meets the requirements as set forth in Section 51 of the Invite-

Invite Number 24 Year 2003 on the Constitutional Court as well as

based on previous Constitutional Court rulings;

Therefore, according to the Government is appropriate and should be appropriate if

Chairperson/Assembly Justice of the Constitutional Court wisely states the request of the applicant cannot be accepted (niet ontvankelijk verklaard).

III. GOVERNMENT EXPLANATION FOR THE 2008 42-YEAR PRESIDENTIAL ELECTION REQUEST FOR PRESIDENTIAL ELECTIONS AND VICE PRESIDENT

Article 3 of the paragraph (5) and Article 9 of the Law No. 42 of 2008 on

The General Election of the President and the United States. Vice President, stated as follows:

Article 3 of the paragraph (5): "The presidential elections and the Vice President are exercised after

implementation of the House of Representatives, the DPD and the DPRD";

Article 9: " The potential couple is proposed by the election party's political party

meeting the minimum seat acquisition requirement of 20% (twenty percent)

of the number of House seats or gained 25% (twenty-five) of

national legal voice in the House of Representatives elections, prior to the implementation of the Election

President and Vice President";

According to the Applicants, the provisions above are deemed to be contradictory

with the provisions of Article 1 of the paragraph (2); Article 6A paragraph (1) and paragraph (2); Article 22E

paragraph (1) and paragraph (2); Article 27 paragraph (1), Article 28C paragraph (2); Article 28D paragraph (1)

and paragraph (3), Article 28I paragraph (2) and paragraph (5) of the Basic Law

Republic of Indonesia in 1945.

Article 1 of the paragraph (2): "Sovereignty is in the hands of the people and exercised

according to the Basic Invite";

Section 6A:

Verse (1) "The President and Vice President are elected in one pair

directly by the people";

109

Verse (2): "The spouse of the Presidential candidate and Vice President was proposed by the party

the politics or the combined political party of the general election participants before

implementation of the general election";

Article 22E:

Verse (1): "Elections are executed in person, general, free,

secret, honest, and fair every five years";

Verse (2): " General elections are held to select the Board members

People's Representative, Regional Representative Council, President and Vice President

and the Regional People's Representative Council ";

Article 27 paragraph (1):"All citizens country concurrent in

laws and governance and shall uphold the laws and governance of it

with no exception ";

Section 28C paragraph (2): "Everyone has the right to advance itself in

fight for its rights collectively to build society,

nation, and country";

Section 28D:

Verse (1): "Everyone is entitled to recognition, warranty, protection,

and fair legal certainty as well as the same treatment before the law ";

Verse (3):"Each citizen is entitled to a chance that

equal in government";

Article 28I paragraph (2): " Everyone has the right to be free from the right treatment

discriminates on any basis and is entitled to the protection

against that discriminatory treatment";

Verse (5):" To enforce and protect human rights in accordance

with the principles of a democratic law state, then the exercise of the rights

human is guaranteed, set, and poured in the rules of the invite-

invitates";

Related to the presumption/reason of the applicant above,

The Government convees things as follows:

130

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. Rejecting the a quo for the whole or at least

a request a quo is not acceptable;

3. Declaring Section 9 of the Law No. 42 of 2008 on

The General Election of the President and Vice President is not at odds with Article 1 of the paragraph (2), Article 6A paragraph (1) and paragraph (2), Article 27 of the paragraph (1), Section 28C

paragraph (2), Article 28D verse (1), Article 28D paragraph (3), and Article 28I paragraph (2) and

paragraph (5) of the Basic Law of the Republic of Indonesia in 1945;

4. Declaring Article 9 of the Law No. 42 of 2008 on

The Presidential Elections and the Vice President have a legal force

binding;

If the Chairman/Assembly of the Constitutional Court argues otherwise, we

please The verdict is (ex aequo et bono).

The Speaker of the House for the Petitioner

A. The provisions of Act No. 42 of 2008 on the Presidential Election of the President and Vice President (for further abbreviated as President and Vice President) are being referred to as Test Against the Constitution of the Republic of the Republic of China (the Republic of the Republic of China). Indonesia Year 1945

The applicant in his application submitted the testing of the Invite-

Invite the Presidential Election and Vice President against the Basic Law

The Republic of Indonesia of Indonesia Year 1945 as follows:

- Article 9 reads: " The candidate spouse is proposed by a political party or a joint The political parties of the Election participants who meet the requirements of the electoral seats are at least 20% of the House seats or gain 25% of the national legal votes in the House of Representatives elections, before the implementation of the Presidential Election and Vice President ";

- Article 3 paragraph (5) reads: "The presidential and vice presidential elections are held after the implementation of the House of Representatives, DPD, and the DPRD";

131

B. The Constitutional Rights, which according to the applicant, have been harmed by the enactment of Law No. 42 of 2008 on the Presidential Election and the Vice President (for further abbreviated as President and Vice President)

The applicant in the request of a quo, posits that the right

its constitutionality has been harmed by the enactment of Article 9, and Article 3 of the paragraph

(5) of the Presidential Elections Act and the Vice President, i.e. as

below:

1) That the Presidential Elections Act and the Vice President

restrict/reduce the rights The applicant for the Political Party of Elections

to propose a spouse of the Presidential Candidate and the Vice President with

how to add a minimum requirement of 20% of the House seat or

a minimum of 25% of national legal votes and Depending on the results

House elections, DPD and DPRD;

2) That the enforcement of the material and the charge of Article 9 and Section 3 of the paragraph (5)

The Presidential Election Act and the Vice President clearly have been

adversely or At least it has been a real potential disadvantage of the right

constitutional applicant as the Political Party of participants. The election was:

the right to propose a spouse of the Presidential Candidate and Vice President;

the right to propose a spouse of the Presidential Candidate and Vice President

before the implementation of the general election to elect a member of the House,

DPD, Presidents and Vice Presidents and DPRD executed

simultaneously, be reduced, restricted and/or debarred;

3) According to the applicant the constitutional right is guaranteed and protected by

the provisions of Section 6A (2) and Article 22E paragraph (1) and paragraph (2) Invite-

Invite the Basic State of the Republic of Indonesia 1945 which reads:

- Article 6A paragraph (2) of the 1945 Constitution:

" The spouse of the Presidential candidate and the Vice President was proposed by the Party

Politics or the Combined Political Parties Election Participant before

implementation General Election ";

132

- Article 22E paragraph (1) of the Constitution of 1945:

"Elections are executed in person, general, free, secret, honest, and

is fair every five years";

- Article 22E paragraph (2) of the 1945 Constitution:

"Elections are organized to elect a member of the House, DPD, President,

Vice President and DPRD";

C. House caption

That against dalil-dalil Applicderation of the necessity creating a strong presidential system and

129

is effective in running the function of the state government. The requirement

based on the number of national legal votes is required by Parpol or

the combined Parpol as a means of the legitimacy of the people to propose

The spouse of the Presidential Candidate and Vice President;

7. That the requirements of Article 9

a quo, does not mean toe="page-break-before:always; page-break-after:always">

139

2. Rejecting the a quo for the whole or at least

a request a quo is not acceptable;

3. Acknowledge Section 9 and Section 3 of the paragraph (5) of the Law No. 42 of the Year

2008 regarding the General Election of the President and the Vice President not

contrary to the provisions of Article 6A paragraph (2), Section 22E paragraph (1) and

paragraph (2) of the Act Constitution of the Republic of Indonesia in 1945;

4. Declaringraph (5) applies to all election participants,

then the postulate proposed by the applicant that it has aried

the loss of rights and or constitutional authority has been Real-real not

happens either factually or potential;

The House argued that there was no and/or a loss

to the rights and/or constitutional authority that the applicant

a quo with the enactment of Law No. 42 of 2008 About

The Presidential Election And the vice president. As it is the position

law (legal standing) the applicant in the Inviting Testing-

Invite a quo does not meet the requirements as set forth in the Section

51 paragraph (1) of the Constitutional Court Act and limitations in

Putermination of the Constitutional Court of Perkara Number 006 /PUU-III/2005 and Perkara

No. 010 /PUU-III/2005 past;

By control of that, the House of Representatives please allow the Speaker/Assembly of Judges

Constitutional Court prudent to state the invocation of Para

The applicant is repellable (void) or Unless otherwise not acceptable

(niet ontvankelijk verklaard). However if the Chairman/Assembly of the Court of Justice

The Constitution argues for another, the following is the House of Representatives

regarding the test material Act No. 42 of 2008;

2. Materiile Testing Of The 2008 Act Number 42 About the Presidential Election and Vice President (for further abbreviated Presidential and Vice President Elections)

The applicant in the plea a quo, on Just point out

that the enactment of the provisions of Article 9 and Section 3 of the Act (5) Act

The presidential elections and the Vice President have harmed or at least potential

harms the constitutional right of the applicant as a political party. Election participant

with an an-reason basis as follows:

137

a. That Article 6A paragraph (2) of the Constitution of 1945 is clear and resolute gives the right

constitutional to the applicant as the political party of the Election participants

in equal equality/equal opportunity to propose a spouse

The Presidential Candidate and Vice President before the Election.

b. That therefore, the addition of 20% of the House seat or 25% of the vote

national legal is the new norm that adds to the norm that

is in Article 6A paragraph (2) of the 1945 Constitution;

c. That the intent and purpose of the provisions of Article 22E of paragraph (1) and paragraph (2) of the Constitution

1945 to host an Election is a simultaneous event of five

years once described at the time of the election there are 5 boxes that are

the box for DPR, DPD, DPRD provincial, DPRD county/city, and box

for President and Vice President. However, Section 3 (5) Act (5)-

Invite the Presidential Election and the Vice President govern otherwise

by declaring the Presidential Election and the Vice President being implemented

after the implementation of the Election of Representatives, the DPD, and the DPRD.

Against the things the applicant has put forth, the House of Representatives is in the following /giving the following:

1. That in accordance with Section 6A paragraph (5) of any further arrangement of

The implementation of the General Election of the President and the Vice President is set in

The Act. President and Deputy Election Settings

The president in the a quo Act was also intended to

affirm a strong and effective Presidential system, where the President

and the Vice President are elected not only obtaining a strong legitimacy

of the people, but in order to realize the effectiveness of the Government

also required a full support base from the House of Representatives;

2. That if associated with what we have made it

above, then the material charge provisions of Article 9 and Section 3 Verse (5)

Act Number 42 of 2008 on the Presidential Election

and Vice President do not may be said to be contrary to the provisions

Section 6A paragraph (2), Article 22E paragraph (1) and paragraph (2) of the Basic Law

The Republic of Indonesia of Indonesia Year 1945 as there is nothing at all to

reduce the rights of the people in Channeling his political aspirations, impeding the rights of the petitioner as the Selection

138

General and infraction of human rights, as such provision does not potentially close the odds or block the participation

The applicant to nominate someone in the Presidential Election

and/or the Vice President, where the provisions of this section are no different-

differentiate the treatment of a person or the applicant.

but the provisions of Article 9 and Article 3 paragraph (5) of the Election Act

The President and the Vice President apply to all Parpol Election participants.

3. That Act No. 42 of 2008 on Elections

The President and Vice President in its manufacturing process have been referring

to the Law No. 10 Year 2004 regarding the Establishment

The laws of the Law with based on asas

the formation of Good Laws includes:

a. Destination clarity:

b. Appropriate institutional or organ-forming organs:

c. suitability between type and charge materials:

d. can be performed:

e. todayaginization and usefulness:

f. The clarity of the formula; and

g. openness:

4. That in addition to the provisions of Article 9 and Section 3 of the paragraph (5) of the Act

The election of the President and the Vice President, has been in accordance with the provisions

Article 1 of the paragraph (2) also Article 28J paragraph (2) of the Country Basic Law

Republic of Indonesia 1945, in addition to being set up with the Act as well

The restriction is in the framework of protection and fulfillment

the rights of each person including the applicant as the Political Party of Participants

Election, besides the arrangement or Such restrictions are also not

contrary to applicable other legal norms;

That based on the control above, the House pleads if

The Speaker/Assembly of the Constitutional Court gives an amar ruling as

following:

1. The applicant a quo has no legal position (legal

standing), so that aquo's application should be declared unacceptable

received (niet ontvankelijk verklaard);

The trial of the House of Representatives;

3. That by saving us there is a requirement for the Presidential Candidate

and/or the Vice President listed in the provisions of Article 9 and

Article 3 of the paragraph (5) a quo, is The political decision of crystallization

A fractional deal in the parliament which is the authority

Pembentuk Act (People's Representative Council), including

sections a quo are considered to be contradictory

with the Constitution of the Republic of Indonesia in 1945

by the Applicants, according to our saving is not appropriate, because

the provisions of such provisions are not appropriate. It gives the space of motion that

is broad enough, aspirational, and accommodating by giving it a chance

to anyone to be able to run for President

and/or Vice President as long as it doesn't contradictory to Invite-

Invite the Basic State of the Republic of Indar 1945, then the Petitioners

143

has a legal standing (legal standing) as a Party

The applicant;

The applicant in the a quo plea suggests that

with the passing of the Presidential Election Act and the Vice President The president,

in particular Article 9 has incurred the loss of the constitutional rights of the

applicant. The constitutional rights intended by the applicant

outline include: (a) The Right of the Petitioners or the Combined Political Party of the General Election Participant to propose a prospective spouse

the President and Vice President before the implementation of the General Election

as defined Section 6A paragraph (2) of the Country Basic Law

Republic of Indonesia of 1945, (b) The right to advance itself in advocating for its rights collectively to the building of society,

nation, and his country, (c) The right to acquire a chance equal in Government, (d) The right to benefit and special treatment to obtain the same opportunities and benefits in order

achieve equality and justice, (e) The right to be free of discriminatory treatment on any basis and entitled to receive

protection against such discriminatory treatment, (f) Protection, submission, enforcement, and fulfillment of human rights

which included the responsibility of the State, especially Government, (g) Every person is obliged to respect the human rights of others in the order

community, nation and country life;

Therefore according to the Applicant provisions of the aquo provisions

with Article 6A paragraph (2), Section 28C paragraph (2), Section 28D paragraph (3), Article

28H paragraph (2), Section 28I Verse (2), Article 28I paragraph (4) and Section 28J paragraph (1)

The Basic Law of the Republic of Indonesia in 1945;

That because the applicant is not expressly and clearly

outlines what constitutional disadvantages that Real-real.

and it was raised over the implementation of the a quo. then

based on the Terms of Section 51 of the paragraph (1) and the Explanation of the Invite-

Invite Number 24 of 2003 on the Constitutional Court and

the requirement according to the Decree of the Constitutional Court of Perkara Number

006 /PUU-III/2005 and The verdict of the case number 010 /PUU-III/2005, DPR argued that there is not a single constitutional right to the

144

The aggrieved applicant by the enactment of Act No. 42 of 2008 in particular of that Section 9.

In this case, against the Applicant a quo, the House did not agree, with the explanation as follows: 1. That to guarantee the implementation of the President's General Election and

the qualified Vice President, meet the degree of competition that

is healthy, aspirational and participatory for all Parpol Election participants, in

order of the Candidate Partner The President and the Vice President are elected

strong legitimacy from the people and has a strong support base

in parliament, then under the mandate of Article 6A paragraph (5) Act

Basic State of the Republic of Indonesia in 1945 need to be formed an

Act on the Presidential Election of the President and Vice President

which corresponds to the development of democracy and dynamics

society in a nation-state and country life;

2. That the creation of Law Number 42 of 2008 About

General Election of the President and Vice President according to our cost-saving

in making and formulating the charge material Act

a quo is already in line with the mandate Constitution and have fulfilled

the terms and conditions applicable as to which are governed in the Invite-

Invite Number 10 Year 2004 on the Establishment of Regulation

Legislation, also pay attention to the process and mechanism of the order

orderly (Tatib) Trial of the People's Representative Council;

3. That according to our cost-saving terms for the Presidential Candidate

and/or the Vice President listed in the provisions of Article 9 a quo,

is The political decision of the crystallization of the fractional deal

in the parliament that is the authoring authority of the Act (People's Representative Council), including the provisions of the submission

or the proposal of the Presidential Candidate and/or Vice President, which

applies to all Parpol Election participant. It is therefore not related

at all against the position and interest of the applicant as

one of the conditions for submitting the Inviting Test-

Invite a quo against the Republican Basic Law

Indonesia Tahun 1945. Because of the provisions of Article 9 of that

apply to all Parpol Election participants, then the dalil

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is proposed by the applicant that there has been a loss of rights and or

the constitutional authority has been real-not occurring either

factual or potential;

4. That a provision is considered discriminatory if it meets the limits

the definition of discrimination as to which is governed in the Act

Number 39 of 1999 on Human Rights mentioned

that "Discrimination" is any limitation, direct or indirect limitation based on

Human differentiation on the basis of religion, tribe, race, ethnicity, group, group, social status, economic status, gender, language, beliefs politics which results in a reduction, deviation, or elimination of recognition implementation or use of fundamental rights

human and basic freedoms in both individual and

collective lives in the political, economic, legal, social cultural, and aspects

other life;

5. That Act No. 42 of 2008 About the Election

General President and Vice President in particular the provisions of Article 9 is not

can be said to have violated human rights, reduced

the rights of the people in Channeling his political aspirations, obstructing the rights of the Applicant as the Political Party of Election Participant as defined in Act No. 39 of 1999, for not

discriminate against the treatment of men. based on

on the basis of religion, tribe, race, ethnic, group, group, social status,

economic status, gender, language and political beliefs;

6. That the provisione

Act under Section 51 (1) Act Number 24

In 2003 of the Constitutional Court, it must meet 5 (five) terms

(vide Verdict Case Number 006 /PUU-III/2005 and Case Verdict

Number 010 /PUU-III/2005), i.e. as follows:

A. The applicant's constitutional right is granted by Invite-

Invite the State of the Republic of Indonesia in 1945;

b. that the applicant ' s constitutional right is considered by the applicant

has been harmed by an Act that is tested;

c. that the intended constitutional loss occur;

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

the force-moveed the test;

e. It is possible that with the application being granted, then

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

[3.7] In the draw that the petitioners are postulate to be the following:

[3.7.1] The applicant I (Saurip Kadi)

-The applicant who is an Indonesian citizen as intended

Article 51 of the paragraph (1) of the MK Act, which is about to use Section 28D paragraph (3), Section 28H paragraph (2), Section 28I paragraph (2),

Article 28I paragraph (4), and Section 28J paragraph (1) Basic Law

The Republic of Indonesia in 1945, in addition to being governed by the Invite-

Invite also such restrictions are in protection frame

and the fulfilment of each person's rights including the applicant as a

The Political Party of the Election Participant, in addition to the arrangement or

such restrictions also do not conflict with the norms

other laws applicable.

That based on these dalises above, the House pleads If

Chairperson/Assembly of the Constitutional Court gives an amar the verdict as

following:

1. The applicant a quo does not have a legal standing (legal

standing), so that aquo's request should be declared unacceptable

received (niet ontvankelijk verklaard);

2. Rejecting aquo requests for the whole or at least

a a quo plea is not acceptable;

3. Declaring Section 9 of the Law No. 42 of 2008 On

The General Election of the President and the Vice President does not conflict with

the provisions of Article 6A paragraph (2), Section 28C paragraph (2), Section 28D paragraph (3), Article

150

28H paragraph (2), Article 28I paragraph (2), Article 28I paragraph (4) and Article 28J paragraph (1)

The Basic Law of the Republic of Indonesia in 1945;

4. Declaring Article 9 of the Law No. 42 of 2008 on

The Presidential Elections and the Vice President still have the power

the law is binding.

If the Chairman/Assembly of the Constitutional Court argues otherwise, we are

please the current ruling (ex aequo et bono).

[2.5] Draw that the applicant I, the applicant II, and the applicant III have

address the Written Conclusion, which is accepted in the Court of Justice

on date February 2, 2009, February 4, 2009, and February 6, 2009, which

each on Just stick to the invocation;

[2.6] A draw that the Government has delivered the Conclusion

Written, which was accepted in the Court of Justice on 9 February

2009, on the basis of the refusal of the applicant's plea;

[2.7] Draw that to shorten the description in this ruling,

everything that happens in the trial is quite appointed in the news of the event

the trial, which is one unbreakable unity with

ruling this;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the intent and purpose of the applicant ' s plea

is to test the constitutionality of Article 3 of the paragraph (5) and Article 9 of the Act

No. 42 of 2008 concerning the Presidential Election and Vice President President

(sheet state of the Republic of Indonesia 2008 No. 176, additional

sheet of state of the Republic of Indonesia Number 4924, subsequently called

Act 42/2008) against the Constitution of the Republic of Indonesia of Indonesia Year

1945 (later called UUD 1945).

151

[3.2] Draw, before considering the subject of a plea,

The Constitutional Court (later called the Court) should consider

first:

1. The Court's authority to examine, prosecute, and disconnect

plea a quo;

2. Legal standing (legal standing) the applicant to act as the applicant

in the plea a quo.

Against these two things, the Court argues as follows:

The authority of the Court

[3.3] weighing that according to Article 24C of the paragraph (1) of the 1945 Constitution and Article 10

paragraph (1) the letter of Act Number 24 of 2003 about the Constitutional Court

Constitution (State Sheet of the Republic of Indonesia 2003 No. 98,

Additional leaf of the Republic of Indonesia Number 4316, further called

Law MK) juncto Article 12 paragraph (1) letter of the Number of Laws 4 Years 2004

on the Power of Justice, the Court of Justice is prosecuting at the rate

first and last the verdict is final for, among other things, testing

The Act against the Constitution of 1945;

[3.4] Draws That The Applicant's plea is to test

the constitutionality of the norm Article 3 paragraph (5) and Article 9 of the 42/2008 Act against the Constitution

1945, which is one of the authority of the Court, so that it is therefore

The court is authorized to examine, prosecute, and cut the plea

a quo.

Legal Occupation (Legal Standing) applicant

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

The explanation, which may apply for testing of the Act

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

the constitutionality given by the 1945 Constitution is harmed by the enactment of a

Act, i.e.:

a. Individuals in Indonesia (including groups of people

have common interests);

152

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)

MK bill;

b. no constitutional rights and/or constitutional authority granted

by the 1945 Constitution resulting from the enactment of the Act

is mohoned testing;

[3.6] The Court has also been that the Court has since the Number of Discharges. 006 /PUU-III/

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

September 2007 establishing that loss of rights and/or authority

constitutional as referred to Article 51 paragraph (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 is considered

aggrieved by the enactment of the testing Act;

c. the constitutional loss must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be confirmed

will ore:always; page-break-after:always">

149

besides that arrangement or limitation is also not

contrary to any other applicable law norms;

6. That aside, in accordance with Section 6A paragraph (5) of the arrangement more

further against the Implementation of the General Election of the President and the Vice

The president is set up in the Act. General Election Settings

President and Vice President in the a quo Act as well

is intended to affirm a strong Presidential system and

effective,l Party, for Apply a quo. Will

but, as individuals or groups of people who have interests that

equal, are not evident from the applicant's letter of power that indicates that

The applicant also acts in the quality of the individual;

According to the Court of qualification terms and constitutional losses

is meant to be fulfilled, so that the applicant is eligible

law (legal standing) to apply for a quo;

[3.8] Stated that as the Court of authorities inspected, prosecuting

President, and in Article 12 paragraph (1) the Parpol Act is declared that the Party

Politics is entitled to propose a Presidential Partner Partner and Vice

The President, and the article does not mention/does not need to be considered a right

"conditional" for the political party to nominate the President by because

The Parpol Act was promulred on 4 January 2008 while Law 42/2008.

just promulted on November 14, 2008, but so by

due to the Election The General President and Vice President are directly elected by

the people and every citizen has the same opportunity in

the government, so it is interpreted to be " proposed the Candidate Partner

President and Vice President is the right of a political party that does not require

terms and/or restrictions in any form also according to Article 6A

paragraph (2) of the 1945 Constitution and the Parpol Act, but the rights of the political party

as it is called above are clear conflicting with Article 9 of the Act 42/2008

that reads, " The couple candidates for President and Vice The president is proposed by

The Political Party or the combined Political Party of the election participants who meet

The requirement of the seats is at least 20% (twenty percent) of the amount

the House seat or gain 25% (twenty-five percent) of valid votes

national in the House of Representatives elections, prior to the implementation of the Presidential Election

and Vice President ";

-That the applicant assumes the implementation of Article 9 of the 42/2008 Act of potential

causes no democratic elections, directly,

general, free, secret, honest and fair, and more Section 9 Act 42/2008

obstructing the constitutional right of the applicant in private citizens

Indonesia and as the political party legal entity for nominating and

nominated as President and Vice President in the general election

The President and Vice President, as set in 6A paragraph (2),

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

and paragraph (4), and Article 28J paragraph (1) of the Constitution of 1945, as well as the Articles of Invite-

Invite Number 39 Year 1999 on Rights Human Rights;

[3.7.4] A draw that special legal standing of the applicant, the Government has provided the following caption:

157

1. Against the applicant II with the case register Number 52 /PUU-VI/2008 (Party

Moon Star) as a Political Party that has a representative in the House which has

follows the entire process of discussion and has provided its approval

against the a quo, then the Government argued that

the submission of the provisions of the above provisions by the applicant

II is not appropriate. Politically, the political parties that have co-gave

its approval in the entire discussion process a quo

is bound by the approval that has been given against the a quo Act;

2. Against the applicant with the case register Number 51 /PUU-VI/2008 and

59 /PUU-VI/2008, according to the Government, that the provision does not

harm the rights and/or its constitutional authority, due to the Election

President and Vice The president is held after the House of Representatives elections,

DPD, and the DPRD. In addition, the provision does not only apply to the

applicant but also applies to all the Political Parties of the Election, party

"great" and "new" party. There is no guarantee for any Political Party

in the upcoming legislative elections it will obtain at least 20% seats

from the number of House seats or obtain 25% of the national legal vote in

Election members of the House, so that As such, the Government argues

that there is no special or actual constitutional loss

for the applicant;

[3.7.5] A draw that based on the criteria expressed in consideration in the paragraph [3.6] above, both regarding the qualifications of the applicant as a individual and/or the legal or legal entity

on the loss of constitutional rights as defined in Article 51 of the paragraph

(1) MK Act, the Court of Justice argues as follows:

[3.7.5.1] That the applicant I (Saurip Kadi) as a person of Indonesian citizens who postulate potential to be proposed as a Presidential Candidate

by the Political Party, postulate on the disadvantaged rights of its constitutionality by Article 9

Act 42/2008 a quo, according to The Court has qualified legal status

(legal standing) for submitted a a quo application;

[3.7.5.2] That The applicant II (Star Moon Party), as the legal entity of the Political Party, has received the authorization of the Minister of Justice and Human Rights

Man now the Minister of Law and Human Rights (proof of P. II-6), though

158

as stated by the Government has taken part in the process

under discussion of Act 42/2008 and provides its approval in the House, according to

The Court of Applicant qualified the legal position (legal standing);

under the approval of the Speaker party in the House of Representatives under the a quo

but then it is to issue it to the Court, by the Court of view

is a matter of political ethics. Nevertheless, the Court

considers for years to come for political parties

and/or House members who have already taken part and participate in

the discussion and institutional decision of the decision. An invite-

invite the required testing will be declared to have no position

legal (legal standing) by setting in the Rules of the Constitutional Court;

[3.7.5.3] That the Petitioners III (Party) Hanura, The Renewal Democracy Party, The Indonesian Party Prospered, The Labour Party, The National People's Care Party, and the Party

Republic of Nusantara), which each of them has been awarded as

the legal entity of the Minister of Law and Human Rights on 3 April

2008, although the petitioners are also Put in the number 3 in its application

as an individual of the Indonesian national (including the group of people

has the same interests), but the Court argued that the

applicant was accepted in its legal position. (legal standing) only as

the private legal entity of the Politica] Applicants III (People's Heart Nurani Party (Hanura), Democracy Party (People's Nurani Party) Renewal, Prosperous Indonesian Party, Labour Party, National People's Care Party, Republic of Nusantara Party)

-That the Applicant as a person and as a legal entity is very

in the interest of the President's general election. either to self-help

or to be nominated. Similarly as the Political Party, the applicant

is interested in exercising the function of the party as set in

Act No. 2 of 2008 on Political Parties (Parpol Act),on

and Vice President " on the provisions of Article 9 of the Act 42/2008, show

the presence of legal uncertainty. This is precisely in contrast to

in the form of Law 42/2008, as it turns out in the considerans

weighing in: " (a) that the general election is directly by the people

is a means of the exercise of the sovereignty of the people to produce

the democratic state government based on Pancasila and Invite-

Invite the Basic Republic of Indonesia in 1945; (b) that the elt of the history of the birth of the provisions of Article 22E (1) and paragraph (2) at

Third change of the 1945 Constitution and the intention of the maker of the Constitution (original intent),

the holding of the presidential election and the Vice President is held in

a general election held simultaneously when selecting a member

DPR, DPD, and DPRD;

That if seen in terms of state finance, efficiency as well as social aspects and

Corrections, general election interplay executed

simultaneously in one time, certainly more effective and efficient and better for

the people who now already feel too much of the election type

They have to face it. In terms of the financial terms of the country, it is more and more efficient, and economically, let alone a country that is now in dire straits to improve on the welfare of its people. In such conditions, the welfare of the people should

be the main focus in the exercise of democracy itself. With the election

at once it will reduce the social and social stability factors, the efficiency of time for

the people, the parliament of the Election participants as well as for the Presidential Candidate and the Vice

President who contested the match;

There are four The concept framework for the general election in this UUD.

First, The constitution intends for the general election to be held every five

years and avoided elections more than one time in five years

except Because of an emergency. Second, providing sovereignty to the people

directly to vote and determine its President, without any

censorship either from the representative agency, let alone from the political party. Third,

that is the middle road between the giving of roles to the political party and the candidate

the individual. At the time of the change in the UUD change, there are

proposals for individual candidates to be made possible under this Constitution,

but with a variety of technical concerns then the candidate

the individual cannot It's in the Constitution. Fourth, related to

the construction of a political party and a strong presidential system of government,

that is by giving a political party exclusive role to submit

The spouse of the Presidential Candidate and Vice President who are participating in the election

President and the Vice President directly by the people;

163

That thus the provisions of Article 3 paragraph (5) of the Act 42/2008 which

set the time for the execution of the President and Vice President after

the implementation of the House of Representatives, the DPD and the DPRD, and the provisions of Article 9

Act 42/2008 which reaffirm the implementation of the Presidential Elections and

The Vice President is conducted after the Election of Representatives, DPD and DPRD,

contrary to Article 22E paragraph (1) and paragraph (2) juncto Section 6A paragraph (2)

UUD 1945;

Based on the postulate and considerations the applicant argues

that Section 9 and Section 3 paragraph (5) Act 42/2008 contradictory

with Section 6A paragraph (2) of the 1945 Constitution and Section 22E paragraph (1) and paragraph (2) of the Constitution

1945 and have no binding legal force;

[3.9.3] The Applicant III (2) (Hanura Party, Democratic Party Renewal, Welfare Party, Labour Party, National People Caring Party, and Republican Party Nusantara)

-That Article 9 Act 42/2008 has obscured and dismissing the substance

Article 6A paragraph (2) of the 1945 Constitution that reads, " Couple of Presidential candidates and

Vice President proposed by a political party or a combination of the party's political parties

general elections before the implementation of the general election ", and Article 12 letters a

and the letter i Act No. 2 of 2008 on the Political Party;

-That the substance of Article 6A paragraph (2) of the Constitution of 1945 governs that the Couple

Candidates for President and Vice President are nominated by the Political Party or

The Combined Political Party prior to the implementation of the general election, whereas

Article 12 of the letter a and letter i Act No. 12 Year 2008 about

The Political Party regulates that Party Politics is entitled to the treatment

equal, equal and fair of the state including to propose

The spouse of the Presidential Candidate and Vice President;

-That in the presence of Article 9 of the Act 42/2008, means Article 6A paragraph (2) of the Constitution

1945, Article 12 of the letter a and i of the Parpol Act as well as human rights provisions, which

provides the opportunity for the Political Party to propose candidates

the President and Vice President and get the chance and the treatment that

equals, equal and entitled to be selected or choose to be lost,

for which possible to propose a Presidential Partner and

Vice President with the existence of Article 9 of the 42/2008 Act is just the Political Party

164

or the Combined Political Party which meets the requirements of the seat's acquisition

at least 20% of the number of House seats or obtain 25% of the valid

national votes in the House of Representatives elections;

-That between Article 6A paragraph (2) of the 1945 Constitution and Section 12 of the letters a and letter i

The Parpol Act as well as the provisions of human rights as such above

in accordance with Article 9 of the Act 42/2008, there is a contradictio in terminis,

so that it is. Making Section 9 is a legal defect.

There should be Article 9 of the Act 42/2008 no longer requires requirements-

such requirements because it is clear that it is the right of the

Political Party or the Combined Political Party;

-That because it imposes multi-interpretation that gives birth to discrimination and

Then in the end, ignoring or obscuring even the infraction

human rights, hence the term " The prospective spouse is proposed by

The Political Party or the Combined Political Party of the election participants who meet

The minimum seat acquisition requirement is 20% (twenty percent) of the amount

House seat or acquire 25% (twenty-five percent) of the valid votes

national in House Speaker Election, prior to the implementation of the Presidential Electi indeed impossible

The spouse of the Presidential Candidate and Vice President is filed after election

general. If the meaning of the UUD is to suggest the Couple

Candidates for President and Vice President are before the President's general election

and Vice President, then the end of the sentence "before the implementation of the election

general" is something that does not need loaded in Section 6A paragraph (2)

that. The assertiot. The result is comparable because the president 's program is the program

party, the party program is the President' s program. It is up to the people to decide

which is quality or unqualified according to the people's size. If does not exist

reaching the size-size as set in Section 6A paragraph (3) of the Constitution

1945, then the first and second winner refers to the next round;

Witness Slamet Effendy Yusuf

-Understanding the general election is what is set in Chapter VII

of the General Eident, as well as the aim of building a coalition of the party

Permanent in order to simplify the number of parties in order for the President to be elected

will get strong support from the House. However, this is undeniable

since the reduction of the number of Presidential Candidates and Vice Presidents

that will contest the general election has no basis for legal rationality and

adequate democracy because of that are actually more on technical reasons

mere;

as for the intent of the inter-party coalition not based on

a 20% figure requirement in a Presidential nomination is only incidental

but the coalition or The merger of the party is more based on the similarities

ideological, political doctrine, visi-mission, platform, of each political party.

Because of that, the 1945 Constitution adheres to a presidential election system. The support or

portion of the House is institutionally done so that the figure of 20% is not

reflects the main rules of the presidential system;

If the 20% requirement is declared contrary to the 1945 Constitution,

then The provisions of Article 3 paragraph (5) of the Act 42/2008 must be changed to the election

The President is done in time with the election of the House member,

DPD, and the DPRD on the grounds that under Article 6A paragraph (2) of the 1945 Constitution,

election of Presidential Candidate and Vice Presidential Candidate proposed by Parpol or

combined Parpol prior to the election, meaning a couple's eviction

Presidential candidate and Vice President is done before the legislative election or

at least with the election of the President;

If the President's election and the Vice President is conducted in time

in conjunction with the election of the DPR, DPD, and DPRD members, it will happen

outstanding efficiency of the use of human and financial resources

as explicitly stated in Article 2 of Law 42/2008 which states

that the Presidential elections are done effectively and efficient;

Prof. Dr. Indria Samego

In perspective political engineering, first, party and individu-individuals

Indonesia has not long been a democracy so parties are expected to be not

169

monopolized those who wish to appear as a nation figure, provided that it has

a clear mass base. Second, the importance of building a party system

so that the parties are consistent in its favor;

Article 9 of the 42/2008 Act does not have a constitutional basis

a strong one. Then, under Article 3 of the paragraph (5) of the Act 42/2008, the election

The President and the Vice President are executed in conjunction with the implementation

Election of the DPR, DPD and the DPRD;

Witnesses Gregory Seto Harianto

The trial of the change The 1945 constitution in MPR began with the mind

how to reduce the president's power obtained from Article 1 of the paragraph (2)

Constitution of 1945 stating, " Sovereignty in the people's hands and exercised

entirely by MPR ". So, the MPR holds fully the sovereignty of the people,

but then in the Constitution of 1945 stated, "The president is

mandataris MPR". So, the sovereignty of the people in such a way is held by

MPR is handed over to one person, the President. Thus it can be understood that

the President ' s power became so overwhelming. Because it appears a deal,

that this should be reorganized;

If the President is declared not to be a mandataris, then how

maintain the presidential principle? Then at that time the first idea came out of

Golkar Party wanted a direct presidential election. Initially

the idea was much opposed because there were two things to worry about. First,

is considered at odds with Staatsfundamentalnorms specifically to four

Pancasila stating, "The wisdom led by wisdom

discretion in deliberation/representation". Second, the upper consciousness

the people's readiness to carry out the election of the President directly. In the end

The debate was only recently resolved in 2001. There is even one verse

in Article 6A, which is verse (4), was only completed in 2002;

Show up the question, who will nominate? Envoy faction

Golongan at that time was the first to suggest strengthening the party as

translation part of the representative system. Wisdom led by wisdom

the wisdom in deliberation/representation, must go through a political party.

Therefore, in the end the perumus changes the 1945 Constitution agreed

that to strengthen the party, Article 6A verse (2) UUD 1945 formulated,

170

"The spouse of the Presidential candidate and the Vice President is proposed by a political party or

the combined political party of the Election participants before the general election is done";

So, it is aware that the time is agreed that The political party of the election participants is in charge of the Candidates

President and Vice President, for not wanting to renege on the rights of the union.

Everyone can make a political party, but also agreed in order

the setting of the right to nominate a Presidential candidate and that Vice President

only a political party has been established as an Election participant;

Then comes the question, how if Parpol Election attendees are

much like the 1999 Elections that were then followed by 48 -Parpol? Because of this

in Article 6A (3) of the 1945 Constitution is declared a Presidential Candidate and

Vice President who obtained 50 + 1 votes with 20% across

area, immediately sworn in as President;

In the 1945 Constitution undifferentiated between the Presidential Election with the Election

legislative. All of it is a general election which is then set and

stated in Article 22E of paragraph (2) of the Constitution of 1945 that the general election is for

elect a member of the House, provincial DPRD/county, DPD, and the President and

Vice President, So there will be five ballot boxes. Overview

at that time when a political party or a joint political party of the Election participants

filed for the Presidential Candidate, then between the Presidential Candidate and the Vice President

with that political party one. So there ' s no concern that his program

is differenecause there will still be a Presidential election, where

the government program is the program of presidential candidates for the election winners and

not the party program. If the reason is Article 6A paragraph (2) of the 1945 Constitution, then who

Capres and Cawapres of this party and the party are also unclear. People were forced

giving parties blank checks to parties, then parties

are welcome to look for Capres. It is perfectly natural that then the party

eleves the most powerful Capres pay;

-The party qually consider itself to have the authority of the the people. This

allows for conflict between the President and the House. Indeed, in the constitution

it has been governed whatever is the rights and obligations of the House and the President,

but the House of Representatives is moving rather than on what is listed in the

Act and the constitution, but also on the basis of interest, interest.

For that great-small support in the House, have very big implications

proposed by the political party of the Election participants meeting the requirements

The least 20% seat acquisition (twenty percent) of the number of House seats

or gained 25% (twenty-five percent) of the national legal vote in

Election House members, prior to the implementation of the Presidential Election and Vice

President ", is a reflection of the strong initial support of

The spouse of the Presidential Candidate and Vice President, given the requirements

selected the President and Vice President's spouse in accordance with Article 6A of the paragraph (3)

UUD 1945 is the presence of voice support of more than 50% of the vote.

voters in the general election. As such, the requirement

this initial support has been in line with the constitutional mandate that

illustrates the sovereignty of the people. In fact, if the candidate for President and Vice

President does not have significant initial support then it is not

in line with the spirit of the constitution's mandate;

-The section is also a shorer or execution. provision

Pasl 6A paragraph (2) of the 1945 Constitution which states, " terms to be

175

The President and Vice President are further set up with the legislation ".

Thus the Government and the House of Representatives are authorized to make

rules (legal policy) in order to implement provisions of the Constitution of 1945;

-The applicant actually does not object to the provision that

set about the percentage of the seat acquisition in the House or the percentage

the acquisition of valid votes nationally, but the objection of the applicant is more to

The magnitude of that percentage is rated too high. Thus the provision

the percentage set up in Act 42/2008 does not conflict with the Constitution

1945;

-Adanya the initial support of at least 20% of the number of House seats will

aid in the form of the President's work program and The Vice President was elected

in order to carry out the national development. As such

the nomination requirement of the Presidential Candidate and Vice President

as set in Section 9 of the Act 42/2008 will support its existence

a continuous development through the governance system

Presides are more effective and more stable. The provisions of the requirements

percentages are intended as also as early selection indicating

acseptability (level of trust) against the Presidential Candidate and the Vice

The president is mirrored of the popular popular support;

-That according to the Government of the provision does not provide the treatment

and discriminatory restrictions due to such restrictions in line

with Article 28J paragraph (2) of the 1945 Constitution, and the provisions above are not

related to the problem of the constitutionality of the Act of which

is encouraged to be tested, so as not to contradictory the 1945 Constitution;

[3.13] A draw that in order to support its interest, the Government has

submitted four experts, who gave the captions under oath

in The trial of January 28, 2009, has been contained in the

seat of Perkara, at the point of explaining the following:

Dr. Moch. Isnaeni Ramdhan, S.H., M.H.

Based on the Indonesian Dictionary, the interpretation of the word "election", the word

"select" it means sorting out which is good, the good one is chosen.

The president is the one personification Best owned by the nation

176

this one day. The selection is done with a variety of provisions, such as

education and health qualifications. This does not mean discrimination.

The word "election" requires a certain qualification to acquire

that is good or the best. Yuridik, both the good and the best,

is filed by the combined Political Parties and Parpol Election participants. Not all

Parpol submitted, but rather a parpol already registered as a participant

Election, with his nomination method before the Election. Best qualifications,

according to the constitution, if a President and Vice President obtain a vote

more than 50% can be directly considered eligible election winners,

or should be spread by 20% of the vote in any provinces are more than half the amount

provinces in Indonesia;

Basically the laws or the Act are motionable

These reinforcement is a product of fractional politics or parties to

talk on Other interests. When an invite-

Invite, then a fraction or Parpol or its interests must be subject to

on the law, not the other way;

Dr. Kacung Marijan the joint party of the party's spouse of the Presidential Candidate is on the line. is

development of a consensus democracy to build a system

a stable government in Indonesia, because Indonesia is not a devotee

a two-party system, but rather a multiparty system. Therefore, the building

the democratic consensus is not a reference also in building

the political system that is not only democratic but also stable;

The Indonesian Constitution adheres to a presidential system. Citing Juan Linz, the expert

states the presidential system is incompatible with a government that

is stable because the President and the House are both chosen by the people, meaning, equal-

election

in Section 22E of the paragraph (1) and the paragraph (2) above will be performed any

five years once;

-Pay attention to the terms of the Article 6A paragraph (3) and paragraph (4) of the 1945 Constitution, elections

General President and Vice President are difficult to implement at the same time

General election of the House of Representatives, DPD and the DPRD because to be able to select

The Presidential Candidate and Vice President Presidents who get more votes

of 50% of the number of voter votes w:always; page-break-after:always">

183

i. Article 1 paragraph (2) reads, "Sovereignty is in the hands of the people and

is exercised under the Basic Law";

ii. Article 6A paragraph (1) reads, "The President and Vice President are elected in one

spouse directly by the people";

Verse (2) reads, " The spouse of the Presidential candidate and Vice President is proposed

by the party politics or a combination of the political party participants of the election participants

the new

is already acceptable and executable as a process

The institution of the law as well as any constraints that will be experienced by the presence of

the new law. Without taking into account the factors beyond the law

then the new law potentially raises uncertainty

that the risk may not be able to be hit by the people. How moved is

the social and economic burden of the people and the country as a result of

of the passing of the constitutional issue such as the number of parties from the Election to

Election without a legal design (legal design) clear what would be

built with the partame system in Indonesia. This was exacerbated with the

reasons based on the individual freedom that

the concept was accepted without taking into account the conditions of both local

and international. It is time to not be stuck with

freedom without limits, so that everything becomes all-free

(permissive). Democracy on the foundation was a democracy that did not

sew or make the people happy;

3. That the charges contain both static and dynamic properties. Static properties for

keep and create stability and legal certainty. The dynamic nature of

gives a sense of speech in following the dynamics of society. Too soon

changing will incur uncertainty and anomalies in society

181

that is reflected from not what it wants by the (interpretation) law

new with the real behavior of the community. There is a distance between formal democracy

with substantial democracy. Everywhere people shout democracy

when what happens is anarchy;

4. That not quite a decade of the 1945 Constitution was made a change has emerged

new demands for making changes. New interpretations of the constitution

are prosecuted for often creating uncertainties in society because

gives contradictio in terminis, forgetting the institutionalization process

the laws that take time. long to be at full

the kejernihan is able to evaluate what is lacking and what is necessary

is done an improvement to that law;

5. That Act-forming, as well as the interpreting

the constitution must be responsible for diagnosing and determining

the choice of interpretation that is most compatible with the needs of today's society

and will come not only from the layers of urban society but also

a rural society filled with simplicity of way of thinking and

acting in every aspect of community life. The law is no longer

being a monopoly of experts in the legal field, but it should also be able to be

shared. The Court of Justice as a bodyguard and a constitutional interpreter must

establish a "institutional dialogue at achieving the proper balance

between constitutional principles and public policies". Thus would

be achieved an argument or a good reason for all parties;

6. That the law in fulfilling its functions as a means of adaptation over

changes that occurred that are not specified without

takes into account the ability of community adaptability as addressat

the law provisions That. If not so then will the selection

nature (survival of the fittest), which would harm those who did not or

are less able to adapt by the change of law;

[3.16.3] A draw that in Law No. 23 of 2003 on Presidential Elections and Vice President, Invite-

Invite also to have implemented the policy threshold for proposals

The spouse of the Presidential Candidate and the Vice President by the Political Party or Combined

Political Parties that meet the requirements of seats at least 15% (fifteen

182

percent) of the number of House seats or obtain 20% (twenty percent) of

the national legal vote in the House of Representatives elections prior to the implementation of the Election

President and Vice President. The threshold policy has also been

applied as a legal policy (legal policy) in electoral threshold (ET)

with the aim of achieving a simple multiparty system, which policy

in Decree Number 16 /PUU-V/2007 is dated October 23, 2007, and

policy threshold (PT) on the terms of the vote acquisition of

2.5% (two five-a-one-hundred) of the national valid votes to participate

for the seat in the House, with the Number 3/PUU-VII/2009, by

The court has been declared not in conflict with the 1945 Constitution, because

is a policy mandated by the Constitution of 1945 which is open to its nature;

[3.16.4] A draw with the establishment and the views that have been laid down. Above the next Court will assess the constitutionality of the policy

threshold listed in Article 9 of the Act 42/2008, as follows:

a. That Article 9 of the Act 42/2008 reads, " The candidate candidate is proposed by the Party

Political or Combined Political Parties which meet the requirements of the acquisition

least seats 20% (twenty-perhundred) of the number of House seats

The People's Representative or obtain 25% (twenty-five perhundred) of

the national legal vote in the Election of People's Representative Council before

implementation of the Presidential and Vice President Elections ". Explanation Act 42/2008

figure 1 UMUM is said to be, " In this Act's implementation

The presidential elections are conducted with the aim of electing the President and

The Vice President who obtained strong support from people are so capable

running a state government power function in order to be expected

national goals as mandated in the Opening Act

Basic State of the Republic of Indonesia Year 1945. In addition settings

against the Presidential Elections and Vice Presidents in this Act as well

is intended to affirm a strong and effective presidential system,

where the President and Vice President selected not only gains legitimacy

strong people, but in order to realize effectiveness

government also required base support from the People's Representative Council ";

b. That the applicant ' s objection to Article 9 of the Act 42/2008 will be further tested

its constitutionality with the Constitution:

180

1. That the paradigms that have changed after the change of the 1945 Constitution,

that are from an authoritarian centralistic government paradigm to

a democratic decentralist government in many ways done at the

level. The Act is to decode the authority from the center to

areas such as on regional autonomy. In addition, the award against

individual standing is reflected in the increased legal awareness with

human rights, bothy Abdul Mukthie Fadjar,

Maruarar Siahaan, and M. Akil Mochtar, as the following:

6. DIFFERENT OPINIONS

Constitutional Judges Abdul Mukthie Fadjar, Maruarar Siahaan, and M. Akil Mochtar:

1. The applicant in the case of a quo is

constitutionality of the provisions of Act 42/2008, as follows:

a. Section 3 paragraph (5) (5) Act 42/2008 (by Perkara Number 52 /PUU-

VI/2008) which reads, "Presidential and Vice President's elections are exercised

after the implementatioe rules (rules) is the provisions

that are used as the basis for the purpose to be realized

that is. Decisions or policies to achieve strategic objectives that

considered by the Act are policy issues

that must be tested with the question of whether or not the progress has been achieved

overall, not issues whether it gives every citizen

a right that should be owned as an individual;

i. That on the basis of the legal view above the soot that values

to be realized is the values of justice, equality, democracy

whose implementation is based on direct, general, free, secret, secret principles,

honest, and fair that the goal is to increase the improvement in the political field

in particular the Presidential Election, as stated in the Act 42/2008;

[3.16.5] That against Article 3 of the paragraph (5) the Act 42/2008 The court argues that This is a way or a procedural matter that is in

The implementation of the procedure. acapkali emphasized in an illogical sort of order

the basis of the experience that is prevalent. What is called law is not

always the same and a comer with an understanding according to legal logic let alone

the general logic. Therefore, experience and custom can also be

the law. For example, Article 3 paragraph (5) reads, "Election President and Vice President

executed after the implementation of the DPR, DPRD and DPD" elections. The experience

which has been running is the Presidential Election implemented after the House Election, DPD,

and the DPRD, as the President and/or Vice President are sworn in by the Assembly

People's Consultative Assembly [Article 3 of the paragraph (2) of the 1945 Constitution], so that House elections and

DPD were first needed to be formed by MPR. This institution is then

appointed the President and Vice President, therefore must be formed more

first. Indeed, what is called the "desuetudo" or the custom

(the constitutional convention) has replaced the legal provision, which is a matter

187

which is often in practice both in Indonesia and in other countries. This

is the truth that "the life of law has not been logic it has been

experience". As such a custom has been accepted and implemented,

so it is considered not to be contrary to the law. As such,

the position of Article 3 of the paragraph (5) of Act 42/2008 is constitutional;

[3.17] draws that the Court in its function as a bodyguard

the constitution is not likely to invalidate the Act or in part

its contents, if the norm is an open authority delegate that

can be determined as legal policy by the Act. Although

if the contents of an Act are judged badly, as is the provision

presidential threshold and the separation of Election schedules in case a quo,

The court remains unable to undo it, the cause of which is bad judged not

always means unconstitutional, unless the legal policy product is obvious

violates the morality, rationality and injustice that intolerable. View

laws that are so in line with Constitutional Court Decree Number

010 /PUU-III/2005 dated May 31, 2005 which stated throughout the choice

policy is not a thing that goes beyond the authority of the forming Invite-

Invite, not an abuse of authority, as well as not real-real

contrary to the 1945 Constitution, then the policy option cannot be

cancelled by the Court.

4. KONKLUSI

Based on the above facts and legal considerations, the Court

concluded:

[4.1] Article 3 of the paragraph (5) and Article 9 of the Law No. 42 of 2008

about the Presidential Election of the President and Vice President (Sheet) Country

Republic of Indonesia 2008 Number 176, Extra State Sheet

Republic of Indonesia Number 4924) does not conflict with the Invite-

Invite the Basic State of the Republic of Indonesia in 1945;

[4.2] Dalil-dalil plea The petitioners are unreasonable.

188

5. AMAR RULING

By recalling the Basic Law of the Republic of Indonesia

in 1945 and Article 56 of the paragraph (5) Act No. 24 of 2003 on

Constitutional Court (State Sheet of the Republic of Indonesia Year 2003 Number

98, Additional State Sheet Republic Indonesia Number 4316);

Prosecute,

Declaring rejecting the wishes of the applicant I (Saurip Kadi), the applicant II

(Moon Star Party), and the Applicant III (the People's Party of Nurani, the People's Party of Nurani, the People's Party of Nurani, the People's Party of Nurani, the Party

Democracy Update, Indonesian Party Prospered, Labour Party, Party Matter

The National People, and the Republika Nusantara Party) for the whole.

So decided at the Meeting of Judges attended

by the eight Judges of the Constitution on Friday, the thirteen month anniversary February

year two thousand nine, and spoken in the Plenary Session of the Constitutional Court

is open to the public on this day, Wednesday, the eighteenth day of February

year two thousand nine, by our Moh. Mahfud MD., as Chairman of the Board

Member, Maruarar Siahaan, Maria Farida Indrati, Achmad Sodiki, Abdul Mukthie

Fadjar, M. Akil Mochtar, M. Arsyad Sanusi, and Muhammad Alim, respectively

as Members, with assisted by Cholidin Nasir as Penitera Panitera,

as well as attended by the applicant I, the applicant, the PETITIONERS,

the Government or the representative, and the House of Representatives or the representative.

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

189

MEMBERS,

ttd.

td Maruarar Siahaan

ttd.

Maria Farida Indrati

ttd.

Achmad Sodiki

ttd.

Abdul Mukthie Fadjar

T

tttd.

M. Akil Mochtar

ttd.

M. Arsyad Sanusi

ttd.

Muhammad alim

Against the Court's ruling above, there are three people

The Constitutional Judge who has a different opinion, namel/p>

argues that in taking a decision should lean on

The size of which is composed of principles, policies and rules

(principles, policy, and rules). Principles are meaningful values that

embodied; the policyis the type of measure that specifies the goals that will

achieve, which is generally an improvement in the economic, political and

social fields of the public (Ian Mcleod, 2006: 125);

186n of the House of Representatives, DPD, and DPRD",

with The reason that the provisions are in conflict with Article 6A

paragraph (2) of the 1945 Constitution, "The spouse of the Presidential candidate and the Vice President

is proposed by the political party or the combined political party of the election participants

general before the implementation of the general election ". Also contrary to

190

Article 22E paragraph (2) of the 1945 Constitution, that "General Elections are held

to elect members of the People's Representative Council, House of Representatives

Regions, Presidents and Vice Presidents, and the People's Representative Council

Regions. " According to the applicant, the two chapters of the Constitution of 1945 contain meaning

that the Election's implementation, whether the Election is to elect a member of the House, the DPD,

and the DPRD, as well as the Election to elect the President and the Vice President should

be exercised. Simultaneously or in time, so mutatis

mutandis the spouse of the spouse of the Presidential candidate and Vice President

is done before the Election, as Article 6A paragraph (2) UUD

1945;

b. Article 9 of the Act 42/2008 (submitted by Perkara Licensing Number 51, 52,

and 59 /PUU-VI/2008) which reads, " The candidate spouse was proposed by

The political party of the election participants who met the requirement of the seats

at least 20% (twenty percent) of national legal votes in the Election

House members, prior to the implementation of the Presidential and Vice President Elections. "

According to the applicants, Article 9 of the 42/2008 Act is contrary to the Article

6A paragraph (2) of the 1945 Constitution that only determines that the candidate pair

is proposed by the party politics or the combined political party of the election participants,

without a threshold threshold (threshold) of any.

2. Before addressing the substance of the 42/2008 Act of testing which

was filed by the applicant above, as a different opinion

(dissenting opinions) of the Court of Justice in the Number 51-52-

59 /PUU-VI/2008, we first convey the following things as follows:

a. One significant change as a result of the 1945 Constitution Change

(1999-2002) was that the way of charging in membership

legislative institutions and executive body leaders, both in

national taters nor local, should be done through the election, not

may by means of appointment, appointment, or inheritance, surely

assuming that will be more democratic, in accordance with the principle of sovereignty

the people, as they are listed in Article 1 of the paragraph (2) of the UUD 1945.

In addition, Indonesia has embraced the form of a republican government

as defined by Article 1 of the paragraph (1) of the 1945 Constitution, while

the general election (Election) which is the most important pillar for fulfillment

191

the three principal principles of democracy in the republican-shaped government,

the sovereignty of the people, the legitimacy of the government, and the turn of

the government on a regular basis, have been settled in Section 22E junctis

Article 6A paragraph (1) and Article 18 paragraph (4) of the 1945 Constitution.

b. In general all modern democracies carry out elections,

but not all elections are democratic, because the election

a democratic general is not merely a symbolic ritual, but rather that

is competitive, periodical (periodic), inclusive (broad), and definitively that

determines the leadership of the government. The

democratic elections, including the Election to elect the President and Vice President,

must also be democratic in electoral laws and electoral processes which

reflected in the legislation governing the The election, not the Election

in the New Order Era that "as if" is the Election. True, through

The change of the 1945 Constitution, principles and processes to a government that

democratically has been laid out by the constitution, staying

how to further rule in organic legislation

consistent or not with the Constitution provision which is the source

legitimization.

3. With respect to the substance of the plea, in our opinion, if

The court is consistent with his opinion in the case of the matter

earlier (e.g. the Number 56 /PUU-VI/2008 and the Number of Numbers

3/PUU-VII/2009) in The constitutional interpretation (constitutional interpretation) which

tends to be more emphasized in the textual interpretation and original intent,

the Court granted the applicant's application, because

in a way that was the case of the Court of Justice.

textual interpretation and the original intent, even with

systematic interpretation of Section 6A paragraph (2) and Section 22E paragraph (2) of the 1945 Constitution

which is the source of the legitimacy of Article 3 of the paragraph (5) and Article 9 of the Act 42/2008,

already very bright benderang (expressis verbis) that the UUD Barrier

1945 intends to:

a. Elections (Elections) which include Elections to select members

DPR, DPD, and DPRD (for short called Legislative Elections) as well

Election Presidents and Vice Presidents (for short called Elections

Presidents) are done Simultaneously, in the same time. Phrases

192

"before the implementation of the general election" that is listed in Article 6A

paragraph (2) of the Constitution of 1945 cannot be separated from the general election sense

as Article 22E paragraph (2) of the 1945 Constitution, that is

General election is to elect members of the House, DPD, President and

Vice President, and DPRD as one system and process unity

(electoral laws and electoral processes) by " an

A national, fixed, and self-election commission commission " [vide

Article 22E paragraph (5) UUD 1945]. In fact, in our opinion, invite-

an invite that governs the Elections is sufficient one that includes the setting

Legislative elections and presidential elections, unlike the one practiced in

Election 2004 there is Law 12/2003 (Election Legislative) and Act 23/2003 (Election

President) then for the 2009 Election Act 12/2003 was replaced with

Law 10/2008 and Act 23/2003 was replaced with Act 42/2008. Argumentation

that because according to Article 3 of the paragraph (2) the UUD 1945 MPR that is appointed

President and Vice President, it is MPR that its members are composed

of all DPR members and DPD members who are elected through the Election

[vide Article 2 of paragraph (1) UUD 1945] must first be formed

so that the Legislative Elections should be required from the Presidential Election too

simplifying the issue, due to the election of the Election

in unison does not mean that the members of the House and DPD members who are also

automatic MPR members cannot {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {\cf1} {October 1,} The argument that

hosting the Legislative Elections ahead of the Presidential Election

is already a constitutional convention is also difficult to accept,

for the new will take place twice (in 2004 and its plans) 2009)

which has not yet been qualified as a constitutional convention. More

again, Indonesia is still in the process of transition to democracy for

system building (system building) and the appropriate format

statehood according to the 1945 Constitution. The idea for

simplifying the Election in Indonesia is too much of its body,

so as if there were "no days without elections" that would often make a heart

be a pilot, for example by unifying the national election agenda

193

(House member elections, DPD, and President and Vice President) and

unifying local elections (to elect members of the DPRD and head of the region)

is already being rolled out by many, both politicians (Party General Chairman

Golkar M. Jusuf Kalla) and an academic (e.g. Dr. Ibn Tricahjo's Disertation,

S.H., M.H. in Unibraw, 2008).

b. That the proposal of the spouse of a candidate for President and Vice President by

the political party or the combined political party of the election participants listed

in Article 6A (2) the Constitution of 1945 is actually very clear

meaning and not provide opportunities for legislation

to make a legal policy (legal policy) with "akal-akalan"

contaminated political motives ad hoc determines "presidential threshold"

as is listed in Article 9 of the Law 42/2008 which is moored

testing. The reason for the use of Article 6A paragraph (5) of the 1945 Constitution reads,

"The manner in which the President and Vice President is further regulated

in the statute" as a manifestation of the mandate of the Constitution of 1945 to

the forming The Act may make the terms "threshold" not appropriate,

because the a quo does not set about the requirements, but the issue

way, as it is about the terms already set in Section 6 of the 1945 Constitution, not

can It was mixed up. Similarly argumentation that "presidential

threshold" is intended to be the candidate for President and Vice President indeed

has a strong and wide popular support base, because the support

is widely realized. with the selection of the President and Vice President

directly by the people, as the terms of Article 6A paragraph (1)

juncto Article 6A paragraph (3) of the 1945 Constitution on the choice of the candidate spouse

The President and Vice President who must receive a vote of more than fifty

percent of the number of votes in the election with At least 20% (twenty

percent) votes in each province spread in at least half the amount

provinces in Indonesia. Experience of the 2004 Presidential Election shows

that the results of the Presidential Election are incompatible with the election results

the Legislature and the number of votes for the party vote or the combined political party

that harass or annotates it, Because of the party-candidate pair

politics or the combined political party of the staves, the acquisition of the letter in

The legislative elections are smaller than the votes of the other candidate votes

others, in fact, have won the Presidential Election and Vice President.

194

Actually, if you want to be rational, it has been established

"parliamentary threshold" listed in Section 202 paragraph (1) Act

10/2008 which is by the Decree of Court Number 3/PUU-VII/2009 dated 13

February 2009 declared constitutional, then more legitimate if

"presidential threshold" for political parties or a joint political party

Election participants are also the same as "parliamentary threshold", which is the "candidates for the political party". 2.5%

only.

4. As a result, if the Election is to elect a member of the House, the DPD, and the DPRD and

The elections to elect the President and Vice President are held

in unison at the same time as implicitly

contained in the Section 22E paragraph (2) juncto Section 6A paragraph (2) of the 1945 Constitution,

then mutatis mutandis provisions "presidential threshold" in Article 9 of the Act

42/2008 lost its relevance. As such, Article 3 of the paragraph (5) and the Article

9 Act 42/2008 contradictory to the source of its legitimacy, i.e. Section 6A paragraph

(2) juncto Article 22E paragraph (2) of the 1945 Constitution, so it would be appropriate if

The court declared The laws of the Act 42/2008 are being honed

The reinforcement by the petitioners is declared contrary to the 1945 Constitution

and has no binding legal force. Although, if

the applicant's request for Legislative Elections and the Presidential Election

is held simultaneously in the same time granted,

it is impossible to be implemented in the 2009 Elections, but rather the most

fast for the 2014 Election, as it interferes with the election stages

which is already being prepared by the KPU. As for the related application

with presidential threshold, if the application is granted easily

can be executed by the KPU.

PANITERA REPLACEMENT,

ttd.

Cholidin Nasir