Key Benefits:
Article 18 paragraph (4), Article 27 paragraph (1), Article 28D paragraph (1), and paragraph (3), and
Article 28I Verse (2) of the 1945 Constitution;
The existence of Article 56, Section 59, and Section 60 of the Act of Pemda only provide
opportunities and rights to calon-calon/regional candidate heads of the region
having political vehicles (park/combined parpol) in other words for
those who are dued alone and turning off constitutional rights for candidates-
independent candidates (who do not have a politic/parpol vehicle) in order
election of regional head (Pilkada);
Thus, the applicant has argued that the applicant has a position
law (legal standing) as a party in the request of an invite-
invite to the Constitution of 1945.
5
[2.1.3] SUBJECT OF APPLICATION;
A. That Section 56 Verse (2), Section 59 Verse (1), paragraph (3), paragraph (4), paragraph (5), paragraph (5) letter a,
paragraph (5) letter c, paragraph (6), paragraph (6), paragraph (3), paragraph (3), paragraph (3), paragraph (4), paragraph (4) and paragraph (5)
The Pemda Act is contrary with the constitutional right of the applicant. guaranteed
by the 1945 Constitution in particular Section 18 Verse (4), Article 27 Verse (1), Section 28D
Verse (1) and Verse (3), and Section 28I paragraph (2);
As for the third section of the Act in the Act of the Act is:
-Article 56
Verse (2): " The candidate of the candidate as referred to in paragraph (1) is submitted
by political party or joint political party";
-Article 59
Verse (1):"Attendees of regional head and regional vice-head
is the candidate pair proposed in pairs by
the political party or the joint political party";
Verse (2):" Political party or joint political party as
referred to in paragraph (1) may register the candidate spouse
if it meets the minimum requirement of at least
15% of the number of DPRD seats or 15% of the accumulated gains
valid votes in the DPRD member elections in the region
concerned";
Verse (3):" The political party or the combined political party is required to open
a chance that is as wide as possible for the individual candidate
which is eligible as referred to in Section 58
and subsequent process The candidate is intended through
a democratic and transparent mechanism";
Verse (4):"In the process of establishing a political party candidate or
The combined political party concerned opinions and responses
society";
Verse (5):" The political party or the combined political party at the time
enlist a candidate to be required to submit:
1. nomination letter ... " dst.,
2. ... dst.,
6
-Section 60
Verse (2): "The results of the study as referred to in paragraph (1)
are notified in writing to the leadership of the political party or
the combined political party of the party proposes the slowest 7 (seven)
counting days since the closing date of the registration. "
Verse (3): "If a prospective spouse is not eligible or rejected
for not eligible as intended in
Article 58 and/or Article 59, party politics or joint party
the politics of submitting a candidate is given the opportunity to
complete and/or fix the nomination letter as well
requirements of the candidate pair or submit a new candidate the most
slow 7 (seven) days since on notice of the results of the research
requirements by KPUD. "
Verse (4): "KPUD performs complete reresearch and/or
fixes candidate pair requirements as intended
on paragraph (3) and at the same time notifying the research results
The slowest 7 (seven) days to the party leadership
the politics or the combination of political parties that propose. "
Verse (5): "If the results of candidate pair file research
referred to paragraph (3) is unqualified and rejected by
KPUD The political party or joint political party can no longer
file a candidate for";
Next Constitution of 1945 reads:
-Article 18
Verse (4):"Governor, Regent and Mayor respectively as head
governments of provincial, county and city governments are elected
democratic.
-Article 27
Verse (1): " All citizens simultaneously in the law
and government and are required to uphold the law and
the government is with no exception."
7
-Section 28D
Verse (1): "Everyone is entitled to the recognition, guarantee, protection
and fair legal certainty, and equal treatment
before the law."
Verse (3): "Each citizen is entitled to an opportunity
equal in government."
-Section 28I
Verse (2): "Everyone is entitled to be free of any kind of treatment
discriminatory on any basis and entitled to receive
protection against discriminatory treatment That's. "
That after carefully examined that the Act of Pemda in particular Article 56
Verse (2), Article 59 of Verse (1), paragraph (2), paragraph (3), paragraph (4), paragraph (5), paragraph (5), and (5)
letter c, paragraph (6), paragraph (3), Verse (3), Verse (4), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5), The applicant
argues that the three chapters have eliminated the meaning
a real democracy as mandated by Article 18 Verse
(4) of the 1945 Constitution. The nature of the section is elected "democratic" instead of
only on the implementation of voting and the calculation of votes that must be
democratic, but there must also be a guarantee at the time of the network and
the designation of the candidate, Thus the public needs to gain wider access
to participate in the harp of a prospective spouse/to be nominated. By
hence the restriction as referred to in Article 56, Article, 59 and
Article 60 of the Act does not reflect the principle of democracy
as referred to in Article 18 of the Constitution (4) of the 1945 Constitution;
B. That Article 2nted by the Constitution
1945;
b. Such rights and/or constitutional authority are deemed to have been harmed
by the enactment of the testing laws;
c. Such rights and/or constitutional authority are specific
(specifically) and actual or at least any potential that according to
reasonable reasoning is certain to occur;
d. The existence of a causal link between the rights loss
and/or constitutional authority with the legislation
is required to be tested;
e. It is possible that with the request of the request then
the rights and/or constitutional authority that the constitutional authority does not again
occurs;
D. That based on these criteria the applicant is a party that
has a causal relationship (causal verband) between the loss
constitutional with the expiring legislation to be tested
because Arti 8I Verse (2) of the 1945 Constitution reads as follows " Any person
is entitled free of discriminatory treatment on any basis and is entitled
obtaining protection against discriminatory treatment That. "
That the definition of Article 28I Verse (2) has been deciphed and outlined
in Law Number 39 of 1999 on human rights. That after
read the provisions of Article 56, Section 59 and Section 60, the Act of the Act
contains " only granting rights to the parpol or joint
parpol for proposing/submitting the prospective spouse of the Regional Head and
representative to the area and at all close the opportunity for a prospective partner
independent (for those who do not have a politic/parpol vehicle) as is
also with the applicant as one of the citizens
8
wishes as the Regional Chief Candidate in Pilkada in the Nusa
West Southeast. As such, it is clear that the three chapters of the Act
are highly discriminatory and contrary to Article 28I Clause (2) of the Constitution
1945;
C. That Article 56, Article 59 and Article 60 of the Act have
impressively the arrogance of a political party that does not provide the opportunity
for a change in political social leadership in the region
democratic and not provides an alternative to a prospective partner that is more
variative of various sources in particular for independent candidates. In an era
the current refomation of society should be given the opportunity to
select and harass its best leader independently so
The aspiration is indeed set to go and point out of desire people;
D. That Article 28D paragraph (1) of the Constitution of 1945 provides an opportunity for any
persons to obtain recognition, assurance, protection and certainty
fair laws as well as the same treat before the law;
Next Article 28D Article (3) of the 1945 Constitution states each citizen
deserves the same opportunity in the government. Second
The section above has been further outlined in the Act
Number 39 of 1999 on human rights in Section 43 Verse (1), Verse (2) and Verse
(3) which reads as follows:
Verse (1): "Each citizen country is entitled to select and vote in
General elections based on equality of right
direct, public, free, secret, honest and fair vote in appropriate
with the rules "
Verse (2): "Every citizen is entitled to participate in the government
directly, or with the proxy intermediary that it chooses
freely according to the manner specified in the regulation
laws."
Verse (3): " Every citizen can be appointed in any office
government. "
That the provisions of Article 56, Section 59 and Article 60 of the Act of Pemda are not
provide equal opportunity and treatment of an independent candidate
in the selection of regional heads, in addition, it has also been clear.
9
impeding and harming constitutional rights for citizens who do not
have political or unproposed vehicles by parpol including
The applicant as a citizen of the country;
E. That Since the beginning of the Act, the political party has been organized, and for politicians who were up to the moment
in the circle of power. The bill became a new tool that
justeru is more likely to display opportunistic, conspirative, and
political transactions over the legislation
giving the opportunity and space of motion. for independent candidates who are not
of the political party. The governor/deputy governor, the regent/deputy regent,
the mayor/deputy mayor will undoubtedly benefit a handful of people who
are in a circle of power as if gaining legitimacy
of the people when which is not, because it is only
a mere political camouflage to avoid such an attitude then it is very necessary
to display an independent candidate who is not only proposed from the parpol
which is impressed to drag the people ' s interest that shied away from democracy
that precisely displays Unintended political rulers of the people;
F. That with the emergence of an independent candidate in the Nanggroe Aceh area
Darussalam who got an absolute victory as Governor/Vice
Governor, has proved that the people desperately need
independence and they do n' t believe In a political party that
harass candidates for proven parpol in a prospective repellation
terms with a political transaction that is to sell the vehicle
politics (party) for candidates to follow. Pilkada succession. And this is already
being a common secret for the people of Indonesia if the candidate being moved by
the winning political party, then the first task for the ruler of how
ways to restore a very vulnerable capital by practice corruption,
collusion and nepotism;
G. That democracy is synonymous with one form of aspiration
involving the whole of the people means any decision that is mandated
by democracy of the people, by the people and for the people. It means that democracy
is an undiscriminatory understanding or intervention that
is a charge of power of office and class. Democracy henslave
do n' t be used as a symbol that only exploits the interests of the people because
10
in practice the people are only mobilised or directed to the interest
shortly, for example for the benefit of a new ruler in the fight
power. In terms of democracy it takes the people's participation
in person, so it is time that the people harass its leader
directly not just through the parpol;
H. That under this description above, then clearly the existence of Article 56
Verse (2), Section 59 Verse (1), paragraph (2), paragraph (3), paragraph (4), paragraph (5), paragraph (5)
letter c, paragraph (6), paragraph (3), paragraph (3), Verse (3), Verse (4), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5), Verse (5) Pemda
contrary to the 1945 Constitution Article 18 Verse (4), Article 27 Verse (1), Article
28D Verse (1) and (3) and Article 28I Verse (2);
So that thus the provisions of Article 56 Verse (2), Section 59 Verse (1),
Verse (2), Verse (3), Verse (4), Verse (5) letter a, Verse (5) letter c Verse (6) and Article
60 Verse (2), Verse (3), Verse (4), and Verse (5) " has no legal force
binding "
[2.1.4] PETITUM
Based on everything described above, the applicant pleads for the Court
The Constitution gives its amused verdict as follows:
1. Grant the applicant's request entirely;
2. Stated:
-Section 56 Verse (2);
-Section 59 Verse (1), paragraph (2), paragraph (3), paragraph (4), paragraph (5), paragraph (5), and paragraph (5)
letter c, paragraph (6);
Pekanbaru whose campaign started from around the middle of the year
2005 without going through the party;
-That to attract his supporters, the witness put up a big plang with
reads the secretariat of candidate supporting independent mayor Pekanbarau
with the intent to be entictable by the existing political party and this is
is a new rule and a new fluctuation;
-That what the witness does can be caught by the party, accommodated
by the party and spoken by the party;
-That witnesses are very disappointed in the absence of a system, although it has
its own habitat and workways, so that witnesses as citizens cannot
accept this state and argue society will be changed by
The society itself;
-That witnesses make an approach to society and capture it
The public wants change in the pattern of execution and selection
policies within a city society;
- That the coordination or deliberation of the community could be an input
that is very good For a life together not to be included with the participants
Independent and this is the point of view;
-That the witness is running for an independent mayor with the intent
channelling the community's aspirations;
Says expert Dr. Arbi Sanit
Even though the people, rulers of the country and regions in Indonesia are determined and attempt to implement Democracy, but the realisation is still far from
18
optimal. In a political life that plays the management function
the holding of the State, thus directing and facilitating the various
aspects of the other life of society and the Nation as well as the Nation, various
principles and Democracy has not yet been referred to. There are still preserved
in ideological ideals, some of which are still in the discourse, there are already
poured in the Constitution and the Rules of Invitation, but still not
it is done.
Among the principles and ideals of Democracy still in the struggle
to be recognized informally and formally, are Independent Candidates for
National and Local Elections, as is the case for Member Elections. Legislative and
Executive Leader.
Independent candidate of the election is a Community Person who is a participant
Election individuals alias without using the party mechanism, will
but utilize the mechanism corrections and or ability and
personal power. In various countries, independent candidate institutions are turned on,
to accommodate the aspirations of minority groups, even though more success
is difficult to achieve in the National Elections rather than Regional Elections.
In Indonesia Candidate Elections Independent as it is treated as
a privileged institution created a source of interest-motivated controversy and
procedural to ideological. His presence is considered to weaken and even
endanger the existence of the Political Party His terms of being an Election participant,
could be an issue of injustice in Democracy. And Candidates
sores are defined as the form of individualism that is the embodiment of
of ideology liberalism.
There is a controversy that is concerned with the negative terms of the candidate
Independent elections like that, no need to be present and maintained, if Democracy
is about to be practiced earnest, in a substantial sense and
comprehensive. Substantial means that the principle and the initiative as well as its technical
are carried out. And comprehensive means being enacted across all aspects of life,
either as a determinate or determined factor, (independent and dependent
variable),
Because of that, however, the Independent Election candidate required
in Indonesian elections, including Pilkada. First, to operate
the collectictivism paradigm (UUD opening) and the paradigm of individualism (chapters
19
HAM UUD) through the election institute (Pilkada). Election candidate of the party is
a collectivism operation consisting of a group representative symbolised by the
party. While Independent Candidates are individuals who fight
their right as far as possible.
That way, the Election solves the issues presented by
The Constitution of the Constitution is a conflict that may be based on both paradigms.
The statehood. The elections present the inclusion of a collectictivism conflict
with individualism. Second, the Independent Candidate Institute provides opportunities for the efforts
people who do not become members or sympathizers of the Party, to use
their right to Election and rule over the State, when acquiring the Vote of Voters
as required by the applicable Rules of Law. If
only a few people do not party, then Independent Candidates represent
minority groups. And if a lot of people are party, then the candidate
Independent serves as a rescue valve for the high probability
Golput numbers, which are people who do not use the right to vote because they feel not
have a choice.
Third, the Political Party has so far suffered a Presidential Candidate crisis
as evidenced by the difficulty of advancing a high-qualified candidate
in leadership capabilities and in his popularity. It is rooted
to the Caderization System that is far from effective, as it is sometimes still
lasting traditionally through the Magang System. Indeed the crisis
the quality and quantity of the party's candidate leader, motivates the Party to
manipulate the Sovereignty of the People, as it is to appeal to candidates
monopolistic, conditioning the electorate to not have Rational choice.
Let alone a campaign more serve as a concealer of the weaknesses of the candidate
Party, with gembar or "advertisement" of the candidate's greatness.
In this context the Independent Candidate, actually helps the Party for
allowing the availability of popular and capable candidates with consequences
the people's disappointment to the party has not turned into a political vendetta.
Fourth, again the presence of Independent Candidates could be motivating the Party
to develop an effective Kader system, for success
win a political competition. Indeed, so far in the Election
the competition between the Parties, but in addition is familiar, the competition
20
closed in party view. Independent candidates opened the competition as wide as
perhaps, thus sharking the effort to improve the quality of the candidates
Election.
Fifth, it is the time (urgen) to overcome "crisis"
The leader and leadership of Indonesia's increasingly Political and Governance
relapse as it lasts for long periods of time. As long as this Political Party task
to aalways; page-break-after:always">
17
Mr Sarwono obtained the value of the two and Mr Fauzi Bowo got the highest
-That same result ever occurred in the Prosperous Peace Party where
the witness did not know the outcome Last time he obtained;
-That no parties have ever provided support to witnesses
who asked for money and so did the witnesses also never
giving money to the parties that once gave support to
witness;
The Witness of Totok P Hasibuan -That witnesses on In 2006, tryin nd proven.
Related to the recruitment recruitment of regional heads and regional headers at
Nanggroe Aceh Darussalam (NAD) which allows for individual candidates
(independent), other than through party political or joint party politics [vide Article
67 Verse (1) letter d Act No. 11 of 2006 on Governance
Aceh], is in order to supplement Nanggroe's specificity and privileges
Aceh Darussalam (NAD), which is linked to the wrong one distinctive character history
community struggle of Aceh.
Based on the above description, the Government argued for testing application
legislation a quo could not be refiled (ne bis in idem), because it was
The government pleads for the Speaker/Assembly of the Constitutional Court of Constitutional Court.
wise to specify the applicant is rejected or at least
not acceptable (niet ontvankelijk verklaard). Nevertheless, if
The Speaker/Assembly of the Constitutional Court argues in another, please the ruling
wise and in-fair (ex aequo et bono). In such matters above,
The government argues that the provisions of Article 56 Verse (2), Article 59 of Verse (1),
Verse (2), Verse (3), Verse (4), paragraph (5), letter c and Verse (6) and Section 60 Verse
(2), Verse (3), Verse (4) and Verse (5) The Number 32 Year Act 2004 on
The Local Government, not harming the rights and/or constitutional authority
The applicant and therefore not contrary to the provisions of Article 18 Clause (4),
Article 27 Verse (1), Section 28D Verse (1) and Verse (3) and Article 28I Verse (2) UUD
1945.
24
The affidavit of the government of I. UMUM
The Constitution of the Constitution of 1945 in particular Article 1 Verse (2), states that
sovereignty is in the hands of the people and exercised according to the 1945 Constitution.
The change means that sovereignty is no longer implemented
entirely by the People's Consultative Assembly, but implemented
according to the provisions of the Constitution of 1945.
These provisions bring consequences to changes to some of the regulations
laws in politics and government, namely
published by Law No. 31 of 2002 on Political Parties
(later called the Parpol Act), Act No. 22 of 2003
on Susunan and MPR Occupation, (later called the Susduk Act) DPR,
DPD, and DPRD, Act Number 12 of 2003 on Election
General (subsequently called Elections Act) Member of the House, DPD, and DPRD, as well as
Act No. 23 of 2003 on the Presidential Elections and
Vice The president, as well as the Pemda Act.
The real form of the sovereignty of the people among them is in the General Election
either to elect a Member of the House, the DPD, and the DPRD and to vote
the President and Vice President directly by the people who exercised
according to the legislation. It is the embodiment of a country that
is based on the law and in the framework of the Republic of the Republic of Unity
Indonesia Accordingly, the selection of the Regional Head and Deputy Regional Chief
can also be directly implemented by the people.
Yuridis the basis of the election of the Regional Head and Deputy Head
The area directly can found in Article 18 paragraph (4) of the 1945 Constitution
which states that '' Governor, Regent and Mayor respectively
as Head of Provincial Government, County, and City are elected
democratically ".
The election of the Regional Head and Deputy Head of the Regions democratically can
be done through two ways, first; elections by the DPRD, second; elections
directly by the people. The MPR, DPR, DPD, and DPRD Act
states among others that the DPRD has no duty and authority to
elect the Regional Chief and the Deputy Chief of Regions. As such, the meaning
25
The election of the Regional Head is democratically as referred to in
The 1945 Constitution is the direct election by the people.
The Election of the Regional Head and the Deputy Head of the Region directly by
The people are an Indonesian political process towards life
a more democratic, transparent and responsible political process. Because of this,
to guarantee the implementation of the Regional Head and Deputy Head Elections
The quality area and meet the degree of healthy competence, then
the requirements and governance of the Regional Head ' s election are set in regulations
laws.
That formation, maintenance, and the development of a political party at
is essentially one of the digestion of citizens ' rights to
assemble, union, and declare an opinion. Through a political party, the people
can realize its right to express opinions about the direction of life
and its future in society and in-state. The political party
is a very important component in the democratic political system.
That a political party is one of the forms of community participation that
is important in developing the life of a democracy that upholds the high
freedom, equality, confluency and honesty, also through political parties
can stave union independence, assemble, and issue
opinions in order to realize the nation's nation and country,
as guaranteed by the 1945 Constitution.
So that the existence of a political party in the political life of democracy and
in order to realize well-being for the entire Indonesian people,
has a significant and significant role, among other roles as well as
society to elect its representatives in the DPR and the DPRD, elections
The President and Vice President and the selection of the Regional Head and the Vice
Regional Head.
II. LEGAL STANDING (LEGAL STANDING) PEMOHON In accordance with the provisions of Article 51 Verse (1) UUMK, stating that
The applicant is a party that considers the rights and/or authority
its constitutionality is harmed by the entry of the law, namely:
a. Individual citizens of Indonesia;
26
b. The unity of indigenous law society as long as it is still alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in an undrased invitation;
c. Public or private legal entities; or
d. State agencies.
The above provisions are expressed in its explanation, that what
with "constitutional rights" is the rights set forth in the 1945 Constitution.
So that a person or a party may be accepted as the applicant
which has a legal position (legal standing) in the testing application
the legislation against the Constitution of 1945, then first must explain
and proves:
a. Qualifiers in the a quo application as mentioned in Article
51 Versetion Number 006) and 010 /PUU-III/2005) so
It should be such a request to be ruled out (vide Article 42 Verse (2)
Constitution of Constitutional Court Number 06 /PMK/2005 on the Event Guidelines
In the Test Perkara Act).
The government argues that the conditionally constitutional terms and the reason
differ losses of the constitutionality as the entry point of the request
The applicant is in this request (Perkara's registration number 05 /PUU-V/2007) has
turned out to be unproven a licant in case Number 006 /PUU-
III/2005 (which is directed by Biem Benjamin), as it concerns
testing of Section 24 Verse (5), Section 59 Verse (2), Section 56, Section 58 to
with Article 65, Section 70, Section 75, Section 76, Section 77, Section 79, Article
82 to Section 86, Section 88, Article 91, Section 92, Section 95, Section 95
with Section 103, Section 106 to Article 112, Paragraph
sixth, Article 115 to the Article 119 of the Pemda, not acceptable (niet ontvankelijk verklraad); and stating to refuse the application of Article 59 Verse (1) and Paragraph (3) of the Act of Pemda.
-states reject the request of Article 59 Verse (2) of the Act, in Matters Number 010 /PUU-III/2005 (which is being honed by
Febuar Rahman and AH Endaryadi).
3. That under the provisions of Article 24C paragraph (1) of the Constitution of 1945, and is disputed
in Article 10 of the Act of MK, that the Constitutional Court is authorized
to prosecute at the first and final level of which the verdict is final,
30
so against that ruling there is no legal effort that can
be taken.
4. That under the terms of Article 60 of the MK Law, which states that
against the paragraph, section, and/or section of the invite-invited section of the test, cannot be redirected.
5. The government has argued that the application for testing legislation
a quo submitted by the applicant (Perkara registration Number 5/PUU-
V/2007), has a commonality of the terms of the constitutionality for which the applicant is the reason for which the applicant is in question.
a quo submitted by earlier applicants (vide Perkara Numbers
006 and 010 /PUU-III/2005) so it should be that request
to be ruled out [vide Article 42 Verse (2) Court of Justice
Constitution Number 06 /PMK/2005 on Staging Guidelines in Perkara
Testing Act].
6. The government also argued that the conditionally constitutional terms
and the reasons for different constitutionality losses as entry point
the applicant's request in this request (Perkara's registration number
5/PUU-V/2007) has turned out to be unproven and unproven.
Top of those things above, according to the Government application application
legislation a quo could not be refiled (nebis in idem), but if the Constitutional Court of the Constitutional Court argues for another,
relayed the Government's complete interest as follows:
The relationship with the presumption of the applicant in its application
states that some of the material's charge of the verse, chapter, and/or section
in the Pemda Act, i.e.:
Article 56 stating:
Verse (2): "The spouse of the candidate as referred to in paragraph (1) is submitted by
the political party or the joint political party".
Article 59 which states:
Verse (1): "regional electoral participants and regional vice-heads are
the pair of candidates proposed in pairs by the party
politics or the mix of political parties".
31
Verse (2): " The political party or the combined political party in question
on Verse (1) may register a prospective spouse if
meets the requirements of at least 15%. (five
11 percent) of the number of DPRD seats or 15% (fifteen percent)
of the accumulation of valid votes cast in the General Election
DPRD in the area concerned ".
Verse (3): " The political party or the combined political party is required to open
the opportunities that are as wide as possible for the individual candidates
which is eligible as referred to in Section 58 and
further process The candidate is intended by the mechanism
democratic and transparent ".
Verse (4): " In the process of setting the prospective spouse, political party or
the combined political party is concerned with opinions and responses.
society ".
Verse (5): " The political party or the combined political party at the time of registering
the candidate pair, is obliged to submit:
a. nomination letters signed by the leadership of the political party
or the leadership of a political party that joins;
b. ...;
c. statement letter will not interest the nomination for the pair
nominated by the leadership of the political party
or the leadership of a political party who joined;
Verse (6): " The political party or a combination of political parties as intended
on Verse (1) may only propose one spouse and
the pair of candidates could no longer be proposed by a political party
or a joint party other politics.
Article 60 that states:
Verse (2): " The results of the study as referred to in paragraph (1) were notified
in writing to the leadership of the party's political or joint party
politics that proposed, at least 7 (seven) days counting since
the closing date of the registration ".
32
Verse (3): " If the prospective spouse is not eligible or rejected because
is not eligible as referred to in Section 58
and/or Article 59, party politics or joint politics that
submitting a candidate is given the opportunity to supplement and/or
fix the nomination letter along with the candidate couple requirements
or submit a new candidate the slowest 7 (seven) days from the moment
notification of results research results by KPUD ".
Verse (4): " KPUD performs complete reresearch and or improvement
the candidate pair requirements as referred to in paragraph (3)
and also inform the results of the study
slow 7 (seven) days to the leadership of a political party or a combined
political party that proposes ".
Verse (5): " If the results of candidate pair file research as
referred to paragraph (3) is not eligible and rejected by
KPUD, political party and or the joint political party, can no longer
submits a prospective spouse ".
The provisions above are considered in conflict with Article 18 of the paragraph (4),
Article 27 Verse (1), Article 28D paragraph (1) and Verse (3), and Article 28I paragraph (2) UUD
1945, which states as following:
Section 18
Verse (4): "Governor, Regent, and Mayor each as head
government of provincial, county, and city governments selected
democratic".
Article 27
Verse (1): " All citizens together both in the law and/2005; 006/PUU-III/2005 Number; Number
010 /PUU-III/2005; Number 024 /PUU-III/2005; And Number 05 /PUU-V/2007).
2. That against such testing requests at the number 1 above, have
checked, tried and disassembled by the Constitutional Court, spoken in
plenary session of the Constitutional Court is open to the public, in casu
plea In connection with a request submitted by
Then Ranggalawe (registration Number 05 /PUU-V/2007), on May 31,
2005, with the ruling:
-declared the app e-break-after:always">
36
Verse (6), and Section 60 Verse (2), Verse (3), Verse (4) and Verse (5) UUD 1945, not
and/or have been deadly and provide any discriminatory treatment
against each person to participate in the The government, in fact, the provision
a quo has provided a guarantee of equal rights in government and
in common equality before the law (equality before the law) against any person,
and hence does not contradictory Article 18 Verse (4), Article 27 Verse (1), Article
28D Verse (1) and Verse (3), and Article 28I Verse (2) of the 1945 Constitution, as well. not
harming the right and/or constitutional authority of the applicant.
IV. Conclusion
Based on that explanation and argumentation above, the Government
implores the honorable Chairman/Assembly of the Constitutional Court
The Republic of Indonesia who inspected and disconnected the testing of the Act
The Pemda against UUD 1945, may give the following verdict:
1. Stating that the applicant does not have a legal standing (legal
standing);
2. Rejecting the applicant testing (void) in whole or at no-
charges are not acceptable
(niet ontvankelijk verklaard);
3. Received overall Government information;
4. Article 56, Section 59 and Article 60 of the Law No. 32
Year 2004 of the Local Government does not conflict with Article
18 Verse (4), Article 27 Verse (1), Article 28D Verse (1) and Verse (3), and Article 28I
Verse (2) UUD 1945;
5. Declaring Law No. 32 of 2004 on Government
The area remains a legal force and remains in effect throughout
the territory of the Republic of Indonesia.
[2.3] A draw that at the trial On June 7, 2007, the People's Representative Council has written a written statement read by Hj.
Nursyahbani Katjasungkana, S.H., as the power of People's Representative Council based on the Special Power Letter Number 00 /3437/DPR RI/2007 dated April 20
2007 and the People's Representative Council has also submitted Written notice
37
additional received in the Court of Justice on June 19, 2007,
outlines the following items:
A. The provisions of the Acts of the Act of Pemda which are to be tested for a material test are:
1. Article 56 Verse (2);
2. Section 59 Paragraph (2), Verse (3), Verse (4), Verse (5) the letters a and Verse (5) letters c,
and Verse (6);
3. Section 60 Paragraph (2) up to paragraph (5);
B. The constitutional right that according to the applicant is infringed:
The applicant in his request posits its constitutional right
is broken by the enactment of the Act of Genesis, in the provisions of the provisions
as follows:
1. Article 56 Verse (2) reads:
(2) "The spouse of the candidate as referred to in Verse (1) is submitted by
the political party or the union of political parties".
2. Section 59 Paragraph (2), paragraph (3), paragraph (4), paragraph (5), paragraph (5) letter a and paragraph (5) letter c,
and paragraph (6) each reads:
paragraph (2): " The political party or the combined political party as
referred to in paragraph (1) can register the candidate spouse
if it meets the minimum of the minimum acquisition requirement
15% (fifteen percent) of the number of DPRD seats or 15% (five
11 percent of the accumulated valid votes in the total number of seats.
The General Election of the DPRD members in the area is concerned ".
Verse (3): " The political party or the combined political party is required to open
a chance that is as wide as possible for the individual candidate
which is eligible as referred to in Section 58
and subsequent process The candidate is intended through
a democratic and transparent mechanism ".
Verse (4): " In the process of establishing a candidate, political party or
the combined political party concerned opinions and responses.
society ".
38
paragraph (5): " The political party or the combined political party at the time
enlist the candidate spouse, is required to submit:
a. nomination letter signed by party leader
politics or leadership of a political party that joins;
b. a written agreement between the political parties joining for
nominating a prospective spouse;
c. The waiver will not withdraw the nomination for
The nominated couple signed by the leadership
political parties or leaders of the political party are joined;
d. Letter of statement of willingness in question as candidate
regional head and regional deputy head of the region in pairs;
e. a statement letter will not resign as
pair of candidates;
f. The statement of the statement of error resigns from the post
if elected to the head of the area or co-head
the area corresponds to the laws of the legislation;
g. a statement letter resigned from the post of state for
candidate from civil servant, member of the Army
National Indonesia, and the member of the Republic State Police
Indonesia;
. An inactive statement letter from office for the leadership
The DPRD is a place that is sported to be the candidate in the area
becomes its work territory;
i. a notification letter to the leadership of the House member,
DPD, and the DPRD running for head candidate
area and deputy regional head;
j. completeness requirements of the county head and vice
the regional head as referred to in Article 58; and
k. The text of the vision, the mission, and the program of the candidate pair
it is written. "
39
Verse (6): " The political party or the combined political party as
referred to in paragraph (1) can only propose one
the candidate couple and spouse of the candidate cannot
is proposed again by a political party or a joint political party
others ".
3. Section 60 Paragraph (2) to paragraph (5) reads:
paragraph (1): " The prospective spouse as referred to in Article 59 of the paragraph
(1) is scrutinizing its administration requirements by performing
clarification to the instance the government authorized and
received input from the community against the requirements
the candidate pair. "
Verse (2): " The results of the research as referred to in paragraph (1)
are notified in writin>
politics [vide Article 67 Article (1) letter d Act No. 11 of 2006
about the Government of Aceh], is in order to supplement the specificity and
privileged Nanggroe Aceh Darussalam (NAD), which is related to the wrong
one typical character historical struggle of the Acehnese community.
Based on the above explanation, the Government argued that Article 56 Verse
(2), Section 59 Verse (1), Verse (2), Verse (3), Verse (4), Verse (5) letters a, letter c and
43
related to Human Rights generally governed in the Articles
28D and 28I UUD 1945 does not mean free free-
free, but need to be set to walk in an orderly manner and in a manner that is not a free-free.
in accordance with applicable laws, where in
generally settings other than governing are also limiting. The settings and
restrictions are still justifiable and legitimate throughout made by
authorized agencies and in accordance with the applicable procedures
formal. Restrictions on candidacy through political parties and the combined party
politics are aimed at fulfilling public order considerations in
the fulfillment of democratic societies. This is in line with the provisions of Article
28J Verse (2) of the Constitution of 1945 which reads, " In exercising the right and
his freedom, any person is mandatory subject to the restriction
specified with the statute of meant solely to
guarantee recognition and respect for people ' s rights and freedoms
otherand to meet fair demands in accordance with consideration
morals, religious values, security and public order in a
democratic society ".
10. That the applicant postulate the emergence of the independent candidate
as it did in the election of the regional head in Nanggroe Aceh
Darussalam managed to win an absolute victory which was proof
the needs of the people would be Independent candidate. The applicant ' s control
may be explained that the emergence of an independent candidate in Aceh is
part of a prolonged conflict resolution
in a comprehensive way, which could not be equated. with other
regions. The established political democracy remains on the basis of the party, however
regarding an independent candidate for once and only for the first
to be done in regional elections as a compromise
against a group of people. in Aceh who feel unrepresented
their interests or ideas through existing political parties. With
the existence of a local party then in the next regional election no
is possible again to emerge an independent candidate. The network of potential heads
fixed areas must go through the political (national or local nature) party, this
in accordance with the democratic principle based on the party base (party
based).
44
11. Based on the description above, the applicant ' s constitutional right
once was not harmed by the provisions of Article 56, Article 59 and
Article 60 of the Pemda Act. This is because of the provisions of Article 28J Clause
(2) of the 1945 Constitution which is the implementation of human rights may be done
restrictions under the law.
Additional Attraction of the DPR RI
1. That first DPR RI provides a note to the qualifications,
the quality and credibility of the applicant feeling the right and/or authority
its constitutionality was harmed by the enactment of the Pemda Act given that
The applicant is a member of a political party who has enjoyed the right-
her right as a member of the party thus occupying the post
DPRD of Central Lombok regency. It is therefore not clear the loss
constitutional of the applicant or at least a loss
that is specific (special) and actual or at least potential
what will happen and whether or not there is any Causal relationship (causal
verband) between the loss of the applicant by the enactment of the Act
In particular Section 56 Verse 2, Section 59 Verse (1), Verse (2), Verse (3), Verse
(4), Verse (5) the letter a, Verse (5) letter c and Verse (6), as well as Article 60.
2. That thus from the side of the right and opportunity, Article 59 paragraph (3) of the Act
Pemda has provided the same opportunity to a party member or
a combined individual party and candidate to submit as
will be candidates in the regional head election, so there is no reason to
state that this provision is contrary to Article 18 Clause (4),
Article 27 Verse (1) and Article 28D and Clause (3) of the 1945 Constitution as
are postured by the applicant.
3. That the universal political party has been recognized as one of the pillars
an important democracy and has become a national consensus in order
rebuilding Indonesian democracy after being pasted for more 32
years to strengthen one of the pillars of this important democracy through
political parties by hence for the first amendment of the Constitution
1945 set the political party as the election participants to select the
candidate members the legislature as specified in Article 22E Verse (3).
45
4. That in accordance with national consensus as a policy and political law
anyway, the House and Government have provided an interpretation of the word
"democratic" in Article 18 Clause 4 of the 1945 Constitution as it is said to be in
provisions of Article 56 paragraph 2, Section 59 Verse (1), paragraph (2), paragraph (3), paragraph
(4), and paragraph (5) letters a, and paragraph (5) of the letter c, as well as Verse (6) and Section 60 Clause
(2), Verse (3), Verse (4), and Verse (5) the Act of Pemda.
5. That such provisions are clear to strengthen
the strategic position and strategic role of the political party that has been defined by Article
22E Verse (3) of the 1945 Constitution of the amendment above, so
the nomination of the head of the area that also gives the opportunity to the candidate
the individual must be through a political party or a combination of political parties.
The terms in the Pemda Act should be viewed as a way
and a strategy for the establishing our existing state system
on the political order with strengthen its position and strategic role
the political party as one of the pillars of the democracy above.
6. That provisions in the Pemda Aciety and to prevent the party's discriminatory behavior
against individual candidates, it was included a demanding clause
the political party to conduct the process Recruitment transparently,
as provided in Section 59 Verse (3) of the Governing Law
obliging a political party or a combination of political parties to open
a chance that is as wide as possible for individual candidates that
is eligible to be processed as a candidate by mechanism
a democratic and transparent one. With regard to political party o
49
(2) UUD 1945. The rights of these constitutional rights above according to the applicant have
harmed by Article 56 Verse (2), Article 59 Verse (1), Verse (3), Verse (4), paragraph (5)
letter a, paragraph (5) letter c, Section 60 Verse (2), Verse (3), Verse (4), Verse (5) The Act of Pemda,
which only opens state head nomination opportunities by parpol or
a combined parpol;
[3.9] Draw that whether the applicant's loss is specific and actual or potential that according to reasonable reasoning can be Confirmed.
occurs. The applicant has not yet, but is willing to register
as the candidate of the regional head, as it is indeed the selection of regional heads in place
The applicant is staying still unorganized. However, it may be
it is certain that in the event the regional head of the county arrives and the applicant
registers as the candidate head of the area not through the parpol or joint
parpol as it has been determined in the Pemda Act, the Commission The General Election
Regions (KPUD) will surely reject the registration of the applicant. The applicant argues
if the provisions in the Pemda Act do not restrict the nomination of the regional head
only through the parpol or the joint parpol, but also open to the candidate
the individual then the applicant ' s constitutional right is not harmed. Accordingly,
The applicant pleads for provisions that restrict the nomination of the head of the region
that only through parpol or the combined parpol is stated by the Court
as opposed to the 1945 Constitution. The Court argued that
The applicant along about legal standing could be accepted, so that the applicant
has a legal position to apply for testing the bill
Pemda a quo to the Court.
Subject
[3.10] weighing that as the Court of Justice is prosecuting a quo and the applicant has legal standing, will
be considered further subject to the request;
[3.11] Tied That The Subject Of The Applicant is concerning The constitutionality of some of the Pemda Act, in this case is at its core regarding the
constitutionality of a section of the Act that does not allow the individual
to run for the head of the region and/or vice-head of the region without
via parpol or a combined parpol;
50
[3.12] Holding that in the trial, the Court has examined the written evidence submitted by the applicant whose full list has been
described in the Perkara Sitting above (Evidence P. 1 s.d. P. 15). In addition,
The court has also listened to experts and witnesses who
submitted by the applicant, sbb.:
a. Expert Prof. Dr. Harun Alrasid, S.H. provides the caption that the invite-
invite that does not provide an opportunity for individual candidates is
contrary to the 1945 Constitution;
b. Expert Prof. Dr. Ibramsyah, M.S. reviewed individual candidate issues or
independent in the Pilkada from three points of view, namely 1) of the values and
democratic process, democratic rights should not be limited by anything including
access to select leaders, thereby eliminating independent candidates
means eliminating the value of the democratic value; 2) from the point of view
social dynamics, various surveys and research shows a desire
strong of society will need an independent candidate in pilkada; and 3)
from the corner the similarity of democratic rights to all citizens, in this case if in
Aceh is possible an independent candidate should be in the entire region of Indonesia
is also possible;
c. Expert Prof. Dr. Syamsudin Haris stated that there is no provision in
the Constitution restricts/prohibits individual candidates, so that the interpretation
The Act of Pemda over Article 18 Clause (4) of the 1945 Constitution is less precise, it is more that
according to the Pemda Act, the contestant in the Pilkada is the candidate's spouse, not
parpol, so that the candidate's door should not only be from the parpol, it can also be
a non-parpol line which also must be opened;
d. Expert on Drs. Arbi Sanit gave a written caption
stating that the existence of an individual (independent) candidate would push
parpol is fixing itself to be a healthy party to build
a healthy democracy anyway;
e. Witness dr. Abdul Radjak and Faisal Basri who explained the experience
running for parpol but it is not clear the mechanism of determination
calher;
f. Witness Totok P. Hasibuan has claimed to have run for candidate
Mayor Pekanbaru independently without a parpol but was rejected;
51
[3.13] A draw that the Government has provided an oral and written description which in its case states it does not agree with the controls and
Presumption of the applicant that the recruitment or nomination of the head section and vice
region head via parpol or the combined parpol of the candidate
individual (independent), because in the provisions of Article 59 Verse (3) the Pemda Act
parpol or the combined parpol obligation opens the opportunity -
breadth to the eligible individual candidates. The government also
declined a comparison with the Government of Aceh, because of what it applies to
Aceh according to Law No. 11 of 2006 on Aceh Government
(LNRI's 2006 Number 62, TLN Number 4633, subsequently called Legislation
Aceh Government) only once, that is for the first election since
The Aceh Government Act is promulred;
[3.14] It is balanced that the People's Representative Council (DPR) has given an oral description and It says that at the
essentially the mechanism of the proposal the prospective pair of regional head and vice head
areas carried out by the parpol or the combined parpol were taken based on
consideration that the democratic mechanism built in Indonesia is
based on the parpol base and not Private. What applies in Aceh
applies only once before there is a local parpol. After the formation of a parpol
local, the nomination must be made through a proposal mechanism by parpol or
a combined parpol, including a local parpol;
The founding of the Court
[3.15] A draw that with the Thus, there has been sufficient reason for the Court to consider the subject of the application in its opinion
as follows:
[3.15.1] That the sections submitted for the applicant to be tested materially by the Court contained provisions. which is related to rights that
is given to the parpol to submit prospective regional head and vice head
area;
[3.15.2] That the applicant pleads to the Court to test the articles granting the rights and passages governing the application of the application.
56
elections are held. More-more if the provision is indeed
intended as such, because it will harm the individual who will
nominate a person in the second election and beyond.
The restrictions determined by the Article 256 Aceh Governance Act may
incur as a result of the rights of citizens residing in
Nanggroe Aceh Darusalam province guaranteed by Article 28D Clause (1) and
Verse (4) of the 1945 Constitution. As the Court has stated in
above that it opens up the opportunity for the individual to run
as regional head and vice-head of the region without going through the parpol, it is not
the contrary. with Article 18 Verse (4) of the 1945 Constitution and not
is an act in an emergency (staatsnoodrecht);
[3.15.12] That the development of the pilkada arrangement as practiced in Aceh has given birth to reality. new in the constitutional dynamics that has
poses an awareness impact The national constitution, which is the opening
the opportunity for individual candidates in the pilkada. This is the reason
for the Court to test the return of the Acts of the Act that has ever been tested
in the previous case;
[3.15.13] That according to Act No. 31 of the Year 2002 on Political Parties was declared In the Consideran "Draw" letter d that reads, "that
The political party is one of the forms of the public's participation in developing the life of democracy ...", so it is reasonable if
opened participation with other mechanisms outside of the parpol for hosting
democracy, i.e. by opening an individual nomination in
regional head selection and regional vice-head. The head of the area and the deputy head
the area is the office of the individual, so the terms defined by
Article 58 of the Pemda Act are the terms for the individual. Furthermore, in the section
59 Verse (3) it is stated that the parpol or the combination of the parpol is required to open
an opportunity that is wide-breadth for the prospective of the individual eligible as referred to in Article 58 and next process will
the candidate is referred through a democratic and transparent mechanism;
[3.15.14] That needs to be added in the dispute the result of the election results of the regional head of the applicant is the head of the head. region and
57
deputy regional head as a person and not a parpol or joint
parpol originally nominates;
[3.15.15] That based on the above description, the Court argued for the nomination of the head of the region and representatives of individual regions outside of the Province
Nanggroe Aceh Darusalam must be opened in order for no dualism
in carrying out the provisions of Article 18 Clause (4) of the 1945 Constitution for the existence of
the dualism can be incline the rights of citizens to which
is guaranteed by Article 28D paragraph (1) and Paragraph (3) of the 1945 Constitution;
[3.15.16] That the intent and purpose of the above, cannot be reached by the way the Court grants the request of the applicant
that is by stating the provisions that the applicant is asked to be asked. as
contrary to the 1945 Constitution. Because of this way it will incur
the understanding that the nomination of the regional head and the deputy head of the area by parpol
also contradictory to the 1945 Constitution. Whereas, intended to be
the candidacy of the regional head and the deputy head of the area other than through the parpol,
as set forth by the Act of Law in Article 56 Verse (2), it must also be
open the candidats of individuals. The Court is not a forwarding
legislation that could add to the provisions of legislation in a way
adding the formulation of words on the legislation being tested. However
so, the Court may remove the words contained in a
the provisions of the Act so that the norm for which it is contained is in verse,
chapter, and/or section of the Act does not contradictory any more with the Constitution. 1945.
Whereas of the completely new material that must be added
in the law is the statutory task of forming legislation to
grazing it;
[3.15.17] That for individual candidates without going through parpol or partial parpol is possible in the selection of regional heads and regional vice-heads,
then according to the Court some sections of the Act of Pemda are mowed testing
should be granted in part by eliminating the whole sound of the verse or
section section as follows:
a. Article 56 Verse (2) reads, "The candidate of the candidate as referred to in the verse
(1) was put forward by a political party or a joint political party" was removed entires not in the position of a relationship between
a special law with a common law, the existence of Article 67 Verse (2) must
be interpreted as a new interpretation by forming legislation against
55
provisions of Article 18 Verse (4) of the 1945 Constitution. If both of these provisions apply
together but for different regions it will cause the effect of
the existence of dualism in carrying out the provisions of Article 18 Of party or the union of political parties and closed the constitutional rights of individual candidates in the Pilkada, namely:
Article 56 Verse (2) which reads, " The prospective spouse as referred to in Verse (1) is submitted by a political or joint party
political party";
Article 59 Verse (1) to the extent of the phrase"proposed by a political party or a combination political party".
Article 59 Verse (2) along about the phrase"as referred to in paragraph (1)".
Article 59 Verse (3) along about the phrase"Political party or joint political party mandatory", phrase" the vastness of ", and the phrase " and subsequent process of the intended candidate".
[5.3] Declared no legal force binding the provisions of Act No. 32 of 2004 on Regional Governance (LNRI) 2004 Number 125, TLNRI Number 4437), that is:
Article 56 Verse (2) which reads, "The spouse of the candidate as referred to in verse (1) is proposed by a political party or a joint
political party";
• Article 59 Verse (1) to the extent of the phrase " proposed by a political party or a joint political party";
Article 59 Verse (2) along about the phrase"as referred to in paragraph (1)";
62
Article 59 Verse (3) along about the phrase "The political party or the combined political party is mandatory", the phrase "that is wider", and the phrase "and subsequent process the candidate is intended";
[5.4] Declared the provisions of Act No. 32 of 2004 on Local Government (LNRI 2004 Number 125, TLNRI Number 4437) which was granted the following reads:
Article 59 Verse (1): " Election participants and regional vice heads are the candidates";
Article 59 Clause (2): "The political party or joint political party can register a prospective pair if it meets the requirements
acquisition of at least 15% (fifteen percent) of the amount
DPRD chair or 15% (fifteen percent) of accumulated acquisition
votes in the general election of DPRD members in the area
concerned";
Article 59 Verse (3):" Open the opportunity for an eligible individual candidate as intended in
Article 58 via a democratic and transparent mechanism".
[5.5] Repels the application The applicant for the remainder;
[5.6] ordered the loading of this termination in the Republic of Indonesia News as it should.
Thus it was decided at the Judge Meeting which
attended by nine. Constitutional judges on Friday, July 20, 2007 and
are spoken in The Plenary Session of the Constitutional Court is open to the public at
today, Monday 23 July 2007, by us Jimly Asshiddiqie, as the Chairman of the Constitutional Court
Member, Harjono, H.A.S. Natabaya, I Dewa Gede Palguna, H.M. Laica Marzuki,
Abdul Mukthie Fadjar, H. Achmad Roestandi, Maruarar Siahaan, and Soedarsono,
each as a Member, assisted by Ina Zuchriyah as
Panitera Replacement, as well as attended by the Applicant/His Government or yang
represents, and the People ' s Representative Council or that represents, as well as the Commission
General Election or Which represents.
63
CHAIRMAN,
TTD.
Jimly Asshiddiqie
MEMBERS,
TTD. Harjono
TTD. H.A.S. Natabaya
TTD. I God Gede Palguna
TTD. H.M. Laica Marzuki
TTD. Abdul Mukthie Fadjar
TTD. H. Achmad Roestandi
TTD. Maruarar Siahaan
TTD. Soedarsono
6. DIFFERENT OPINIONS
Against the Supreme Court of the Court above, there are three Judges
The Constitution which suggests a different opinion, namely H. Achmad Roestandi,
I Dewa Gede Palguna, and H.A.S. Natabaya, as follows:
[6.1] Constitutional Judge H. Achmad Roestandi
[6.1.1] UUD 1945 has set up the terms of the state of the country's position of charging (membership) as follows:
64
1. The layout of the filling is set in detail, i.e. for office: a. President and Vice President
The candidate is proposed by a parpol or a combination of parpol,
held by the general election (vide Article 6 A and 22E Verse (2)
Constitution of 1945);
b. Member of the House Candidacy by parpol, held by general election [vide
Article 19 and 22E Verse (2) and (3) UUD 1945];
c. Member of the DPRD Candidacy by Parpol, held by the general election [vide
Articles 18 and 22E Verse (2) and (3) UUD 1945];
d. Members of the DPD Nomination by individuals, organized through the general election [vide
Article 22C and 22E Verse (4) UUD 1945].
2. The layout of the filling is set in no detail, namely for the post: Heads of provincial, county, and municipal government (Governor, Regent and
Mayor) are selected democratically.
[6.1.2] Tata the way of charging the post The President and Vice President, members of the House, members of the DPRD, and the members of the detailed DPD, are democratic and must be accepted as agreeing with the ruh contained in the paragraph
the fourth Opening and Article 1 Verse (2) of the 1945 Constitution. Because, overall charge
UUD 1945 is a systematic and harmonious one, so
(must be preloaded) there is no conflict between the parts-
part or its pasts.
[6.1.3] Article 18 paragraph (7) of the 1945 Constitution ordered the establishment of the House of Representatives (DPR and the President) to set up the arrangement and layout
the holding of local government. This section is used as one of the referrals by
forming the legislation in the Consideran "Given" the number 1 of the Pemda laws.
Under the provisions of Article 18 paragraph (7) of that 1945 Constitution, the invite-
invite may specify the layout
"democratically selected criteria" as ordered by Article 18 Clause
(4) The 1945 Constitution. Legislation may choose one of various
alternatives as the implementation of the phrase "democratically it is," for example:
65
1. The first alternative, example one of the terms of the state of the office of charging the office of the state that has been set up detailed in the 1945 Constitution, which is the layout
election:
a. President and Vice President;
b. Merse (3) Act No. 24 of 2003 on
Constitutional Court (State Sheet of the Year 2003 Number 98, Additional
State Sheet RI Number 4316);
61
PROSECUTING:
[5.1] Grant the applicant's application for part;
[5.2] Declares contrary to the Basic Law of the Republic of Indonesia in 1945, the Act of Law Number 32 of 2004 on Regional Government (LNRI's 2004 Number 125, TLNRI Number 4437), which simply gave the political r of DPRD seats or 15% (fifteen percent) of the accumulated gains
valid votes in the DPRD member elections in the region
are concerned ";
- Verse (3), " Party politics or a combination of political parties must open up a chance that is as wide as possible. would be the individual candidate
eligible as referred to in Article 58 and next
processing the candidate referred to through a democratic mechanism and
transparent ";
- Verse (4), "In the process of setting up a candidate for a candidate, a political party or a combination of political parties, concerned with opinions and responses
society";
- Verse (5), " The political party or the joint political party at the time registering a candidate pair, is required to submit:
a. nomination letter signed by the leadership of a political party or
The leadership of a political party that joins;
b. ...;
c. The waiver will not interest the nomination for the pair
nominated by the leadership of the political party or leadership
The political party is joining;
d. ... dst. "
- Verse (6), " The political party or the union of political parties as referred to in verse (1) can only propose one spouse and spouse
69
The candidate could not be proposed again by a political party or a joint
other political party ".
Section 60 - paragraph (2), " The results of the study, as referred to in paragraph (1)
be notified in writing to the leadership of a political party or a combination
The political party that proposes, most slow 7 (seven) days since
the closing date of registration ";
- Verse (3), " If the prospective spouse is not eligible or rejected for not eligible as referred to in Article 58
and/or Article 59, political party or joint political party
submitting a candidate is given the opportunity to complete and/or
refine the nomination letter along with the candidate couple requirements or
submit a new candidate the slowest 7 (seven) days from the moment of notice
results study results by KPUD ";
- Verse (4), " KPUD performs complete reresearch and/or improvement of candidate pair requirements as referred to in paragraph (3)
and informs the results of that study were at least 7
(seven) days to the leadership of a political party or a combination of political parties that
proposes ";
- paragraph (5), " If the candidate's file research candidate as referred to paragraph (3) is unqualified and rejected by KPUD, the party politics
or a combination of political parties can no longer ask a prospective spouse ".
[6.2.3] That, the postulate submitted by the applicant thus arrives to the presumption that the provisions of the Act above are contrary to the 1945 Constitution
is because, according to the applicant:
The provisions of the Acts of the Act of Pemda are in place of the Law of the Law. Intended to violate and adversely affect
its constitutional right as set in Article 18 of Verse (4), Article 27
Verse (1), Article 28D paragraph (3), Article 28I paragraph (2) of the 1945 Constitution (vide Plea,
thing. 3);
The provisions in the section of the Acts of the Act are intended at all
reflecting the democratic principle as referred to as Article 18 Verse (4) of the Constitution
1945 (ibid., thing. 6, figure 2);
The provisions in the Acts of the Act of the Act are discriminatory
thus contrary to Article 28I Clause (2) of the 1945 Constitution (ibid., figure 3);
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The provisions in the provisions of the Pemda Act are meant to not give
equal opportunity and treatment of an independent candidate (sic!) in
regional head election (ibid., thing. 7, figure 4);
The Pemda bill tends to display opportunistic, conspirative and
political transactions because it does not provide opportunities and space
moves for independent candidates (sic!) which is not of the parpol (ibid., figure 5);
Victory of independent candidates in Governor/Deputy Governor election
Nanggroe Aceh Darussalam, according to the applicant, proved that the people
do not believe anymore on parpol, as it is in the harp candidate, parpol
terms with a political transaction by committing a jual-buy political vehicles
(party) for candidates who will follow the succession of pilkada (ibid., thing. 8, figure
6);
[6.2.4] After carefully studying the case of the request a quo, the applicant 's control and the evidence submitted, Council' s caption
The People 's Representative, the Government' s caption, I argues:
a. That, outside of the assessment of the ethics of the applicator as long as
concerns his opinion on the state of the political parties at this time
while the fact that the applicant himself is a member of the DPRD is nominated
by parpol, in casu The Reform Star Party, the subject matter of the invocation
a quo which must be answered is not to be set in the Pemda Act
provisions that allow a person to run for head
area/deputy head of the area individually, whether it is serta-merta
set the rules governing the manner of the head nominating
area/vice head of the region via parpol or joint parpol, as
set in Section 56 Verse (2), Section 59 Verse (1), Verse (2), Verse (3), Verse
(4), Verse (5) letter a, paragraph (5) letter c, paragraph (6), Section 60 Verse (2), Verse (3), paragraph
(4), paragraph (5) of the Act of Pemda, contrary to the 1945 Constitution;
b. That against provisions in the Pemda Act has been many times
filed testing and the Court has dropped its verdict. One
among which is relevant to the a quo is a request
testing against Section 59 Verse Act (1) of the Pemda Act which has been severed by
The court through its verdict Number 006 /PUU-III/2005 with amar
His son declared the verdict rejected. In that ruling, the Court
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has stated its stance as illustrated in consideration
laws that read, among others, are as follows:
" Draw that which needs to be considered now whether
The setting up of the recruitment mechanism for political office performed is based
Article 59 Clause (1) must go through the proposal of a political party in violation of Article 27
Verse (1) and Article 28D Clause (3) of the 1945 Constitution, against which the Court of Justice is in violation of the political party. will
give consideration as follows:
mitted by the political party or the joint political party ";Article 59 - paragraph (1), " The regional chief and deputy regional elections are
the candidate couple who proposed in pairs by a political party or
a combined party politics ";
- Verse (2), " The political party or the combined political party as referred to in paragraph (1) may register a prospective spouse if it meets
terms of the acquisition of at least 15% (fifteen percent) of
The numbe ividual. So, in the context of the a quo,
consistent with the establishment of the Supreme Court in the Putermination
No. 006 /PUU-III/2005 as described in the letter b in
above, the selection of government heads of the region The candidate is proposed by
parpol is democratic;
(iv) With a description of the numbers (i) and (ii) above, it appears that in assessing the democrym election of the head of the local government can not be done in a way Facing and reaping (vis a vis) between the way of a direct election at one parties and elections are not directly on the other; nor can it be done in the manner of facing and fighting (vis a vis) between the direct election that the candidate is put forward by the parpol and the direct election that the candidate is asked to do. by an individual. Because according to the description on the number (ii) above, the whole way of the election is democratic;
(v) It is difficult to digest with reasonable reasoning that says-as it is embraced by the invocation of a quo -that the head of the regional head/deputy head of the area directly elected whose candidate is filed by the parpol or the joint parpol is undemocratic and unconstitutional while the constitution itself provides a reference that the President/Vice The president is directly elected whose candidate is put forward by the parpol or the joint parpol [Article 6A Verse (1) and Verse (2) UUD 1945];
(vi) In the description of the numbers (i) up to (iv) above, it appears that the election of the head of the local government directly whose candidate is put forward by the individual is also democratic. Therefore, consistent with the founding of the Court in the Decree No. 006 /PUU-III/2005, if the later legislation would have to enter into the Act of Law of the Law.
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allowing local government chief candidates to be submitted in person, it is not in conflict with the 1945 Constitution, in particular Article 18 Verse (4), as it is thus fully a policy option (legal). policy) law-forming. In other words, the issue is a legislative review, not judicial review;
f. That the provisions of the Pemda Act, as long as it concerns the way the election
the regional head/head of the region, is the hook between the provisions of one
and the other, where it is not limited to the provisions that are
be asked for testing. Therefore, if the provisions in the Act
The candidate is expected to be testing in the a quo set
about the prospective spouse of the regional head/deputy region via parpol
is declared contradictory with the 1945 Constitution, when not (quod non), then
The Act of Pemda becomes impossible to implement, at least as long as it concerns the election of the regional head/head of the region, for reasons, among others as follows:
(i) Timbul kevakuman laws in the event of a vacancy in office deputy regional head. Section 35 of the paragraph (2) specifies, " In the event of a vacancy in the position of the deputy head of the region as referred to
paragraph (1) that the remainder of the term is more than 18 (eighteen) months,
section chief proposes 2 (two) people candidate the deputy head of the region
to be selected in the DPRD plenary meeting based on the proposal party
politics or the joint political party whose candidate partner is elected
in selection of regional heads and regional vice heads ";
(ii) Not it is clear who the subject is prohibited by the provisions of Article 62 Verse (1) of the Act or subject subject to the sanction by Article 62 Verse (2) the Pemda Act. Because Article 62 of the Pemda Act states,
Verse (1), " The political party or the combined political party is forbidden to withdraw
the candidate and/or the candidate of the candidate, and the candidate for the candidate or the wrong
one of the prospective spouses banned resigning since
specified as a candidate pair by KPUD ";
Verse (2), " If a political party or a combined political party is attractive
the candidate and/or the candidate pair and/or the wrong one of the couples
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candidates resign as referred to in paragraph (1), party
the politics or the combined political party nominating cannot
propose a replacement candidate ";
(iii) Article 63 of the Pemda Act becomes no meaning. Article 63 of the Governing Law is referred to,
paragraph (1), " In which case one candidate or spouse is impediatable
remains since the designation of the candidate up to the start of the campaign day,
the political party or the joint a political party whose candidate couples
impedible remains able to propose a potential replacement for the most
slow 3 (three) days since the candidate of the candidate is fixed and KPUD
does the requirement research administration and setting the pair
slowest replacement candidates 4 (four) days since the candidate pair
a replacement is registered ";
Verse (2), " In case of any candidate or pair of candidates to be impeded
remain at the start of the campaign until the voting day and
there are still 2 (two) candidate pairs or more, staging stages
regional head selection and regional deputy continued and
The candidate pair of candidates remained unchangable and
declared fall ";
Verse (3), " In case of one of the candidates or pair candidates for obstruction
remain at the start of the campaign until the voting day
so that the number of candidate pairs is less than 2 (two) couples, stages
implementation of regional head and vice-head section postponed
at least 30 (thirty) days and party politics or a combined party
politics whose candidate the candidate is impeded to keep the pair
the slowest replacement candidate 3 (three) days since the candidate pair
impeded remains and KPUD conduct research requirements
administration and setting the pair of candidates for the slowest successor 4
(four) days since the spouse of the replacement candidate is registered ";
(iv) There is a legal vacuum in the event of a state. set in Section 64 of the Pemda Act. Article 64 The Act of Pemda is referred to,
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Verse (1), " In the case of any candidate or prospective pair impeded
remains after the first round vote until the start of the day
The second round vote, the stage the execution of the selection of the head
the area and the deputy head of the area was postponed at least 30 (thirty) days ";
Verse (2), " The political party or the combined political party of thee party or coalition of the ruling party
the majority of the parliamentary seats). In the meantime, direct elections can be
performed well with the electoral college system (as in the election
President of the United States) as well as the popular vote system (as in
the Republican presidential election. Indonesia). Candidates selected
directly (both through the electoral college system or popular vote)
may be submitted by the parpol (or the combined parpol) or the
submitted by the indHead and Deputy Head
The area that submitted by parpol or the combined parpol set in
Article 56 jo Article 59 paragraph (3) the Pemda Act has been in agreement with the provisions
Article 6A paragraph (1) and Verse (2) of the 1945 Constitution.
Article 6A (1) The President and Vice President are selected in one pair directly
by the people.
(2) The spouse of the Presidential candidate and the Vice President is proposed by a parpol or
a combined parpol of the general election participants before the execution of the election
general.
It is very ironic that a law was declared contradictory
with the Constitution of 1945, while the legislation itself (the Pemda Act) has been
taking over the mechanism used by the 1945 Constitution which
is basic law (staatsgrundsgezet) of the State of Indonesia. If
this happens, then the mechanism does not correspond to the theory of hierarchies
the invitations that we are adhering to as stated in Article 7
paragraph (1) of the Act of Establishment of the Invitational Ordinance.
Section 7
(1) The type and hierarchy of the Laws Ordinance are as follows:
a. The Constitution of the Republic of Indonesia in 1945.
b. Law (Government Reform Act).
c. Government regulations.
d. Government regulations.
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e. Area Rule.
That the applicant in his application has compared the setting
Article 59 Verse (3) of the Act with the arrangement of Article 67 Verse (1) letter d
Act Number 11 of the Year 2006 on the Government of Aceh, where
according to the Applicant Section 67 Paragraph (1) the letter d Act No. 11 on
The Aceh Government has accommodated the existence of a personal candidate.
But, the applicant has been mistaken for the existence of the individual candidate
as which is set up in Article 67 paragraph (1) letter d, Act
Acehnese government only for the transition (overgang) before
the local party and the provision only apply einmalig (once
way only) because thereafter no longer individual candidates are allowed. This
is confirmed in Chapter XXXIX Terms of Condition Chapter 256 Act
Number 11 of 2006 on the Aceh Government that reads, " Conditions
which governs the individual candidate in the Governor's Election/Vice Governor,
Bupati/Deputy Regent, or Mayor/Deputy Mayor as intended
in Section 67 Verse (1) letter d, applies and is only implemented for
first election since this law It's an invitation. "
Additional again, to further understand why individual candidates
were accommodated in Act No. 11 of 2006 on
Acehnese government [see Article 67 Verse (1) letter d], this is not regardless of
existence Memorandum Of Understanding (Memorandum of Understanding) between
Government and the Free Aceh Movement signed on
August 15, 2005.
The memorandum of understanding has signaled a new flashback of the journey
Aceh Province and its community life towards a peaceful, fair,
prosperous, prosperous and dignified state. It is understandable that Nota
Understanding is a form of reconciliation with dignity to
social, economic, and political development in Aceh on a continuous level.
From the above provisions, it can be drawn to conclusions. that Law Number
11 Year 2006 on Aceh Government remains the mechanism
recruitment of regional leadership in the manner that the Gubernur/ Lead Couple/
Vice Governor, Regent/Vice Regent, and Mayor/Deputy Mayor submitted by
parpol or joint parpol, local parpol or joint parpol local,
combined parpol and local parpol.
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II. The Constitutional Court's ruling.
1. Case Number 006 /PUU-III/2005 on Testing of Act No. 32 of 2004 on Local Government.
In the object of the testing application of the Pemda Act, the Constitutional Court has
never checked, prosecute, and decided the object a request that
is similar to the a quo application.
In the ruling the Court has considered that whether
setting the recruitment mechanism the political office is doing based
Article 59 Verse (1) must go through parpol ' s proposal violates Article 27 Clause
(1) and Article 28D paragraph (3) of the 1945 Constitution against which the Court
gives consideration as follows:
a. Article 27 Verse (1) of the Constitution of 1945 reads, "All citizens together
its second in law and government and is required to uphold
the laws and governance it is, with no exception";
b. Article 28D Verse (3) reads, "Each citizen gets
equal opportunity in government.
The equality and opportunity in the government defined
also without discrimination is to be different things with
the recruitment mechanism in the government office done in
democratic. Is correct, that the right of each person to obtain
equal opportunity in government is protected by the constitution
to the extent that the person meets the terms defined in
the laws that are with respect to the That, among other terms of age,
education, physical and spiritual health and other terms.
Such requirements would prevail against all persons, without
differentiation of the good people for reasons of religion, tribe, race, etnik,
group, group, social status, economic status, gender, language and
political beliefs. In the meantime, the definition of prohibited discrimination in
Article 27 Verse (1) and 28D Clause (3) is further outlined in
Article 1 Verse (3) Act No. 39 of 1999 on Fundamental Rights
Man;
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That the candidate proposal requirement for the head of regional head/deputy head
the area must go through the proposal of a parpol, is a mechanism or
set how the selection of the regional head is referred to exercised, and
at all not eliminating the right of individuals to participate in
the government, as the terms of the proposal through parpol are conducted,
so that with the discrimination formula described in the Section
1 Verse (3) Law Number 39 Year 1999 and Section 2
International Covenant on Civil and Political Rights, i.e. as long
The distinction of being done is not based on religion, tribe, race, ethnicity,
group, group, social status, economic status, gender, language and
political beliefs, then the proposal by parpol was not able
is seen as contrary to the 1945 Constitution, because the system option that
is thus a policy (legal policy) which cannot be tested except
is done arbitrary (willekeur) and exceeds the authority
lawmaker (detournement de pouvoir);
That the limitation of political rights above is jucracies.
Thus the parpol will be the main channel for
champing the will of the people, nation and state as well as
the means of caderization and recruitment of national or regional candidates.
Then, it is already There should be a potential spouse proposed by a parpol or
a combination of a parpol whose point is held democratically and
open in accordance with the internal mechanism of the parpol or the inter-agreement between
parpol.
The determination of the candidate of the candidate of the Regional stified by Article 28J Clause
(2) of the 1945 Constitution, to the extent that the restriction is intended to be poured in the invite-
invite, " In exercising the rights and Her freedom, each mandatory
is subject to the restrictions set out in the legislation with
The intent is solely to guarantee recognition as well as respect for
the rights and liberties of others and for meets the fair demands accordingly
with moral considerations, values religion, security, and order
general in a democratic society ".
That it is also given the constitutional right to propose
a couple of regional headers to the parpol, it is not
to mean that it eliminates the constitutional right of citizens,
in casu The applicant to be the head of the section, throughout the applicant
is eligible for Article 58 and is conducted according to the manner called
in Section 59 Verse (1) and Verse (3) Pemda Act, which requirements
constitute a mechanism or the binding procedure of any person who will
be the candidate of the regional head/vice principal region;
That based on such consideration, the Court argued
The request of the applicant along regarding the testing of Article 24 Verse
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(5), Section 59 Verse (2), Section 56, Section 58 to Article 65, Section 70,
Article 75, Section 76, Article 77, Section 79, Section 82 to 86, Article
88, Section 91, Section 92, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95, Section 95 Section 106 to
with Section 112, Sixth Paragraph, Section 115 to 119 Law
Pemda, is not acceptable, whereas the request of the applicant concerns
Article 59 Verse (1) and Verse (3) are not reasonable enough, so must
was rejected;
2. Case Number 010 /PUU-III/2005 on Testing of Act No. 32 of 2004 on Local Government.
In the Perkara Number 010 /PUU-III/2005, the Court stated that
The setting of Article 59 Verse (2) is an option policy (legal
policy) so that Article 59 paragraph (2) of the Act does not conflict with
Article 27 Verse (1), Article 28C Verse (2), Article 28D paragraph (1) of the 1945 Constitution.
1. Article 27 Verse (1) of the 1945 Constitution that reads, "All citizens
at the same time in law and government and compulsory
uphold that law and government with no exception."
2. Article 28D paragraph (1) of the 1945 Constitution that reads, " Every person is entitled to
recognition, fair protection and legal certainty, and
equal treatment before the law.
3. Article 28D paragraph (3) of the Constitution of 1945 reads, "Each citizen is entitled
obtaining the same opportunity in government."
If the ruling above us is analotable to the a quo case, there is
legal issue (legal issue) of the same, so that the provisions of the sections
are moted in the case of a quo are also an option policy (legal
policy) of the legislation.
[6.3.3] Conclusion
With regard to the above description, we conclude that:
1. The selection mechanism of the regional head and the deputy head of the region
submitted by the parpol or the combined parpol set in the Pemda Act
does not eliminate the right of the individual to be the head candidate
region/deputy head of the region but the way to be the head candidate
the regional vice-head of the area determined by the parpol or
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combined parpol. This limitation may be justified by Article 28J
paragraph (2) of the Constitution of 1945 (see Decree of Constitutional Court Perkara Number
006 /PUU-III/2005).
2. With the existence of the Decree of the Constitutional Court Number
006 /PUU-V/2005 on the Testing of the Decree of the Pemda amar its verdict
states that Article 59 Verse (3) of the Act is not at odds
with Article 27 Verse (1), and Article 28D Verse (3) UUD 1945. Thus
is extremely ironic and inconsistent if the Court states in amar
its verdict in the case of a quo is not the same as the Court's ruling
previously in the same case.
By having been conducted testing against some sections of the Pemda Act
in Perkara 006 /PUU-III/2005, where the object of the application is also
is the invocation of the applicant a quo, then according to Article 60
The MK bill against the material of the paragraph, section, and/or section in the invitation
which has been judled, cannot be redirected the test.
The laws of the event are signs for a judge
not to act arbitrary (willekeur) in order
inspect, prosecute, and break a matter.
With regard to the Article 60 provisions of the MK Act, then
The applicant's request in the a quo request is already supposed
being declared rejected or at least not acceptable (niet ontvankelijk
verklaard).
PANITERA REPLACEMENT,
TTD.
Ina Zuchriyah
