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The Constitutional Court granted the petition for judicial review of Law No. 8/2012 on General Elections Members of the House of Representatives, Regional Representatives Council and the Regional Representatives Council (hereinafter referred to Legislative Election Law) filed by 17 political parties. Similarly, it is stated in Decision No. 52/PUU-X/2012, which was read on Wednesday (29/8) at the Plenary Court.

In its decision, the Court stated that the Petitioners' petition regarding testing the constitutionality of Article 8, paragraph (1) and paragraph (2), and Article 208 Law on Legislative Elections, or some phrases from the chapter or verse, for some legal reason. "Unreasonable application of law for the most part," said Chief Justice of the Constitutional Court, Moh. Mahfud MD.

Not only that, the Court also stated that Article 17 paragraph (1) and Article 209 paragraph (1) and paragraph (2) along the phrase "Parliament provincial and regency / city" has no binding legal effect.

The provisions of Article 8 paragraph (1) of the legislative elections, according to the Court, do not meet the principles of political justice for a long time. Because at the time of verification to participate in the General Election of 2009, all administrative requirements are met by all political parties contesting the General Election of 2009. "Did not meet the principles of justice as imposing different conditions for those who follow a contestation of the same," said the Court giving reasons.

Although the petitioners only asked for the abolition of the phrase "that meet the threshold of votes of the total valid votes nationwide" contained in Article 8 paragraph (1), according to the Court, the injustice is actually contained in the whole article. "Injustice is also contained in the explanation of Article 8, paragraph (1) of Law 8/2012. The latter is based on the consideration that there is no explanation of an article that can stand on its own, so the explanation of Article 8, paragraph (1) of Law 8/2012 must comply with the ruling of the article explains, "the Court explained.

In addition, the Court also reveal framer can understand the intent of the Act to simplify the number of political parties, but the simplification can not be done by imposing different conditions for each political party. Simplification of political parties can be done by determining certain administrative conditions for the elections, but the conditions must be applied equally to all political parties participated in the elections will be no exceptions.

"Impose different terms to participants of the conflict (the general election) the same is not equal treatment or treatment that is different (unequal treatment) in contravention of Article 27 paragraph (1) and Article 28D paragraph (2) and paragraph (3) Constitution 1945, "wrote the Court in a decision which consists of 107 pages.

The relevant paragraph of Article 8 (2) of the legislative elections in order to achieve equality of each political party, according to the Court, there are two solutions that can be taken. First is equating terms of electoral participation among the political parties in 2009 elections and political parties participating in elections in 2014. Or both, requiring all political parties will follow the election in 2014 with new requirements specified in Legislative Elections Act.

In this context, for the sake of a fair legal certainty, the Court determined that in order to achieve equal treatment and fair that all political parties participating in elections in 2014 should follow verification. "With the spirit that is consistent with the intent of the legislators, for simplification of political parties, according to the Court, a participant election requirement set forth in Article 8 (2) of Law 8/2012 should be applied to all political parties who will participate in the General Election Year 2014 without exception. "

Meanwhile, despite the provisions of Article 208 of Law and Legislative Elections explanation is aimed at simplification natural party, the Court holds, in terms of substance, the provision does not accommodate the spirit of unity in diversity. Such provisions could potentially hinder the political aspirations at the local level, but there is a possibility of a political party that does not reach the Parliamentary Threshold (PT) nationwide so it does not get a seat in Parliament, but in these areas, either at the provincial or district / city The political party that resulted in a significant gain votes gained seats in representative institutions of each region.

"According to the Court, the petition throughout the phrase 'Provincial and regency / city' in Article 208 of Law 8/2012 law unreasonable. Thus, the provisions of PT 3.5% applies only to the House of Representatives seats and have no legal effect on the determination / calculation of seats a political party in Parliament and in the provincial regency / city, "said the Court.

Article 208 should be Unconstitutional

Especially for legal consideration of Article 208 of Law Legislative Elections, Constitutional Justice M. Akil Mochtar has a different opinion (dissenting opinion). Akil argues, the Court should declare Legislative Election Law Article 208 is unconstitutional.

"Similar to my opinion in Decision No. 3/PUU-VII/2009 that the model of parliamentary threshold, as stipulated in Article 208 of Law 8/2012, in order to simplify Indonesian party system is contrary to the 1945 Constitution," said Akil.

Akil stated, after considering the advantages and disadvantages of parliamentary threshold for application of the model simplification of the party system, in the end he came to the conclusion that the application of parliamentary threshold in Indonesia election system violates the principle of representation (representativeness). Giving rise to legal uncertainty (legal uncertainty) and injustice (injustice) for members of political parties who have qualified in the vote in legislative elections but his party blocked for a seat in parliament resulting from enactment of parliamentary threshold.

"Simplification of the party system cannot be an instant and easy as turning the palm of the hand, it takes consistency, length of time and careful planning. The number of political parties can be restricted through social engineering based on the rule of law without having to sacrifice the freedom of expression and citizens' constitutional rights to association and assembly," said Akil. (Dodi / mh/Yazid.tr)

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