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Interpretation of Judges in Supreme Court 
Decision Number: 46 P/HUM/2018 

Muslim Andi Yusuf; Dharma Fidyansari 

Universitas Cokroaminoto Palopo 

email: muslimandiyusuf05@gmail.com 

ABSTRACT 

This research was conducted to determine the interpretation of judges in the Supreme 

Court Decision No. 46 P/HUM/2018. This study uses a normative type of research with an 

approach to identifying legislation and literature that is relevant to research. Data collected 

from primary, secondary, and tertiary legal materials are analyzed qualitatively, arranged 

systematically, and presented descriptively. The results of this study indicate that in the 

Supreme Court Decision Number 46 P/HUM/2018 which judges that Article 4 paragraph (3), 

Article 11 Paragraph (1) Letter d and Appendix Model B.3 Election Commission Regulation 

Number 20 of 2018 is contradictory to Law Number 7 of 2017 concerning General Election in 

conjunction with Law Number 12 of 2011 concerning Formation of Regulations and Judges’ 

Considerations based on the interpretation of the testing object test stones namely the 

sentences in the text of Law Number 7 of 2017 concerning General Elections and Law 

Number 12 of 2011 concerning Formation of Legislation as a guide so that the interpretation 

of judges is based on exploring the meaning contained in the statement written norm text by 

studying the book in sentence structure or its relationship with other rules. 

Keywords : Supreme Court Ruling; Judicial Interpretation; Election. 

 
INTRODUCTION 

 

Election, as one of the instruments of democracy, has an essential function in the 

process of nation and state, namely the rotation of power.1 A democratic state change of 

power is a must that is carried out periodically as an indicator of the quality of democracy,2 

and Indonesia as a democratic country entrusted with the General Elections in The 1945 

Constitution of the Republic of Indonesia. 

The post-amendment constitution has provided the basis for the administration of 

the State and an orderly arrangement of communal life. This is reflected in recognition of 

people’s sovereignty, which is carried out according to the Constitution (Article 1 paragraph 

2 of the 1945 Constitution) as well as the confirmation that the State of Indonesia is a 

constitutional state (Article 1 paragraph 3 of the 1945 Constitution). The basic principles 

of a democratic rule of law are realized in the form of recognition and guarantee of 

essential human rights in the democratic process, regulation of the mechanism for electing 

 
1Junaidi, Veri. (2010). Pelanggaran Sistematis, Terstruktur dan Masif: Suatu Sebab Pembatalan Kehendak 

Rakyat dalam Pemilihan Kepala Daerah Tahun 2010. Jurnal Konstitusi, Mahkamah Konstitusi RI, 7(5), p. 46. doi: 
https://doi.org/10.31078/jk%25x 

2Respationo, H. M. Soerya. (2013). Pemilihan Kepala Daerah dalam Demokrasi Electoral. Masalah-Masalah 
Hukum, Universitas Diponegoro, 42(3), p. 359. doi: https://doi.org/10.14710/mmh.42.3.2013.356-361 

https://creativecommons.org/licenses/by-sa/4.0/
mailto:muslimandiyusuf05@gmail.com


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people’s representatives, and public positions as a form of people’s sovereignty, as well as 

structuring State institutions based on the principle checks and balances.3 

The readiness of all parties determines the quality of the implementation of the 

General Election.4 Some essential issues which are always discussed concerning the 

general election are the problems of the electoral system and mechanism, political parties 

and election participants, election organizers as well as the disputed court of election 

results.5 The principle of popular sovereignty is realized through general elections to create 

political representation in political institutions; the people can determine their participation 

as voters and run for parliamentary elections and national leaders who will fight for the 

welfare of the people. 

Because of Article 22 E paragraph (1) and paragraph (5) of the 1945 Constitution 

of the Republic of Indonesia related to the mandate of the General Elections in the 

Constitution held under Law Number 7 of 2017 concerning General Elections. The Election 

Commission has the duties, authorities, and obligations stipulated in Article 12, Article 13 

and 14 of Law Number 7 of 2017. Among these tasks is to determine election participants 

following Article 13 paragraph (3) of Law Number 7 of 2017. In carrying out their duties,  

authorities, and obligations, the General Election Commission is demanded to become an 

EMB quality as an instrument of realizing people’s sovereignty in the electoral procession 

so that the implementation of people’s political rights to vote or be elected directly can be 

held in a democratic atmosphere. 

The elections in 2019 took place in contrast to the previous elections, which were 

held separately between the DPR, DPD, DPRD, and presidential elections. Elections in April 

2019 were held simultaneously in the election of legislative and presidential candidates by the 

decision of the Constitutional Court of the Republic of Indonesia Number 14/PUU-XI/2013. 

Towards the electoral stage, the General Election Commission establishes a policy 

in the Election Commission Regulation Number 20 of 2018 which prohibits ex-convicts of 

corruption cases from advancing as legislative candidates, in the third part concerning 

the requirements for prospective candidates for paragraph 7 letter h ie if those who are 

allowed to nominate as parliamentary candidates are not former convicted drug dealer, 

child sex offender, and corruptor. 

Election Commission Regulation Number 20 the Year 2018 which prohibits ex- 

corruption convicts from advancing as legislative candidates to become Controversial,6 Because 

 
3Asshiddiqie, Jimly. (2009). Menuju Negara Hukum yang Demokratis. Jakarta: PT. Bhuana Ilmu Populer, p. 

377. 

4Mamonto, Moch. Andry Wikra Wardhana. (2019). Legal Politics of Simplifying Political Parties in Indonesia 
(Case Study of 2004 – 2014 Election). Substantive Justice International Journal of Law, Universitas Muslim 
Indonesia, 2(1), p. 4. doi: http://dx.doi.org/10.33096/substantivejustice.v2i1.25 

5Asshiddiqie, Jimly. (2009). Op. Cit., p. 379. 
6Hadi, Syafiul, & Wijanarko, Tulus. (2019, 29 Januari). Hari Ini, KPU Umumkan Caleg yang Mantan Narapidana. 

Tempo.Co. Retrieved from https://pemilu.tempo.co/read/1169965/hari-ini-kpu-umumkan-caleg-yang-mantan- 
narapidana 

http://dx.doi.org/10.33096/substantivejustice.v2i1.25


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in Article 240 paragraph (1) and (2) of Law Number 7 of 2017 Concerning Election, candidates 

for legislative members who have been sentenced to prison must fulfill the requirements in 

paragraph (1) letter g, which is that they have never been sentenced to jail based on a court 

decision has obtained permanent legal force for committing a crime that is threatened with 

imprisonment for 5 (five) years or more, unless openly and honestly telling the public that the 

person concerned is a former convict. In Article 240 paragraphs (1) and (2) of Law Number 7 of 

2017 Regarding Election, there is no prohibition of ex-convicts from participating as legislative 

candidates. Still, ex-convicts who will join as parliamentary candidates must be open and 

honest in telling the public that concerned is a former convict. Judging from the legislation 

hierarchy, there is a vertical synchronization between the Election Commission Regulation 

Number 20 of 2018 and Law Number 7 of 2017 Regarding Elections. The General Election 

Commission should make regulations referring to higher rules. 

The existence of Article 7 letter h of the Election Commission Regulation Number 20 

of 2018, which prohibits ex-corruption prisoners from participating as legislative candidates 

in the 2019 election, makes the ex-convicts of corruption not fulfill the requirements as 

election participants based on the Election Commission Regulation Number 20 of 2018. 

This then makes some citizens who feel aggrieved by their political rights submit a material 

test of the Election Commission Regulation Number 20 of 2018 to the Supreme Court of 

the Republic of Indonesia because it is considered contrary to Law Number 7 of 2017 

concerning General Elections and other Legislation. 

The Supreme Court of the Republic of Indonesia in the Decision 46, P/HUM/2018 

with the applicant Jumanto, received the material test related to the Election Commission 

Regulation Number 20 of 2018, then with the Judgment of the material test so that ex- 

convicts of corruption can nominate themselves as legislative candidates. This becomes 

a problem when a controversial situation occurs in the prohibition of ex-convicts as 

parliamentary candidates, where there are parties who are pros and cons of the ban of ex- 

prisoners as legislative candidates have stated their respective arguments, therefore it is 

essential to review the Interpretation of Judges in the Supreme Court’s Decision Number 46 

P/HUM/2018 in the material test of the Election Commission Regulation Number 20 of 2018. 

 
METHOD 

 

This study uses a type of normative legal research conducted with approaches to 

legal norms or substance, legal principles, legal theory, legal arguments, and comparative 

law.7 Material collected from primary, secondary and tertiary legal materials was 

analyzed qualitatively, arranged systematically and presented descriptively to find out the 

Interpretation of Judges in the Supreme Court Decision Number 46 P/HUM/2018. 

 
7Nawi, Syahruddin. (2014). Penelitian Hukum Normatif Versus Penelitian Hukum Empiris. Makassar: PT. 

Umitoha Ukhuwah Grafika, p. 6. 

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ANALYSIS AND DISCUSSION 
 

A. Election Perspective in the Indonesian Constitution and Law Number 7 the Year 

2017 Regarding Elections 

Democratic countries need norms and practical references and theories 

from countries whose societies have advanced in democracy. These norms and 

recommendations must be legitimized as the Constitution of a State in exercising its 

power. The Unitary State of the Republic of Indonesia has a constitution known as the 

1945 Constitution freedom of expression without threat, freedom to access information 

and freedom of association.8 The constitution of the Basic Law is as a grantor and 

boundary, as well as on how the power of the State must be exercised.9 

The concept of a modern democratic state, the constitution is a necessity that 

is not understood as a limitation of the authority of the ruler or king, but the law is 

recognized as a guideline for the administration of state power to achieve the objectives 

of the State. The Unitary State of the Republic of Indonesia has set the principles of fair 

elections in its constitution. To uphold the General Election as a process of government 

change or rotation of the power of the Unitary State of the Republic of Indonesia has 

set it in Article 22 E of the Constitution,10 and has mandated the General Election 

Commission as the organizer of the election to ensure and guarantee the process 

of holding direct, general, free, confidential, honest elections and also guarantee the 

holding of elections every five years. The election implementation is then regulated in 

Law Number 7 of 2017 concerning General Elections, which becomes a guideline for 

KPU as the election organizer. The KPU’s authority stated in Article 13 of Law No. 7 of 

2017 has explicitly stated, and in Article 14 letter b, the KPU has also expressly stated 

its obligations.11 

In addition to treating the Election Participants fairly and equally in the 

Nominations of Members of the   DPR,   DPD,   Provincial   DPRD   and   Regency/ 

City DPRD, each candidate must fulfill the requirements as stated in Article 240 

paragraph (1) and (2) of Law Number 7 of 2017 Concerning Elections. For legislative 

candidates who have been sentenced to prison must fulfill the conditions stated in 

paragraph (1) letter g.12 

 
 
 
 
 

8Ubaedillah, A., & Rozak, Abdul. (2012). Pendidikan Kewarganegaraan (Civic Education): Pancasila, 
Demokrasi, HAM, dan Masyarakat Madani. Jakarta: Kencana Prenada Media Group, p. 81. 

9Ibid., p. 102. 
10Pasal 22E Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. 
11Pasal 14 Undang-Undang Republik Indonesia Nomor 7 Tahun 2017 tentang Pemilihan Umum (UU No. 7 

Tahun 2017). Lembar Negara Republik Indonesia Tahun 2017 No. 182. Tambahan Lembar Negara No. 6109. 
12Pasal 240 ayat (1) UU No. 7 Tahun 2017. 



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B. Review of Judicial Power and Judge Interpretation 
 

A judge can do judicial interpretation and legal discovery because not all 

statutory provisions are in a clear form so that there is an opportunity for interpretation 

of Leemten in hetrechvage and norm.13 Judges in making decisions have their 

interpretations in finding the law, and this is confirmed in Article 5 paragraph (1) of Law 

Number 48 the Year 2009 concerning Judicial Power. 

Every person in expressing an opinion must use an argument that is colloquially 

called “reason.” Likewise, a judge in deciding a case must present a piece of evidence, 

both related to the subject matter and the branch of the case. These arguments must 

be formulated and arranged carefully, coherently, systematically using first and correct 

legal language. Then the legal arguments in the judge’s decision are called legal 

considerations or legal reasoning. Legal reasoning is used in two meanings, namely 

in the broad and narrow sense, namely in the general sense, the legal argument is 

related to the psychological process carried out by the Judge, to decide on the case 

it faces. Legal reasoning study, in a broad sense, involves aspects of psychology and 

biography. Legal reasoning, in the narrow sense, is related to the argument underlying 

a decision. This study consists of the study of the logic of a decision and relates to the 

types of discussions, the relationship between reason and determination, as well as 

the accuracy of the rights or considerations that support the decision. 

There were no Judges or Lawyers, who began to argue from a vacuum 

situation,14 A legal argument always starts with positive law. Positive law is not 

a closed or static state but is an ongoing development. From a positive law 

provision, jurisprudence will determine new norms. People can reason from the 

favorable legal requirements of the principles contained in positive law to make 

new decisions.15 

Legal arguments, are “reasons in the form of explanatory explanations outlined 

clearly, in the form of a series of logical statements, to strengthen or reject an opinion, 

standpoint or idea, relating to legal principles, legal norms and concrete legal rules, as 

well as the legal system and legal discovery” A meaningful argument, only built on the 

basis of logic, is a “condition sine qua non” so that a decision can be accepted, that is, 

if it is based on a logical process, in accordance with a formal logic system which is an 

absolute requirement in arguing.16 Logic, in other terms, is called mantic, and different 

 
13Hadjon, Philipus M., & Djatmiati, Tatiek Sri. (2014). Argumentasi Hukum (Legal Argumentation/Legal 

Reasoning): Langkah-Langkah Legal Problem Solving dan Penyusunan Legal Opinion. Yogyakarta: UGM Press, 
p. 24 

14Ibid., p. 17. 
15Isnantiana, Nur Iftitah. (2017). Legal Reasoning Hakim dalam Pengambilan Putusan Perkara di Pengadilan. 

Islamadina: Jurnal Pemikiran Islam, Universitas Muhammadiyah Purwokerto, 18(2), p. 50. doi: http://dx.doi. 
org/10.30595/islamadina.v18i2.1920 

16Ibid., pp. 50 – 51. 

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opinions state that philosophy is the study of methods and laws used to distinguish 

valid reasoning from reasoning17 

The interpretation section is one method of legal discovery that provides a clear 

explanation of the text of the law so that the scope of the rules can be established in 

connection with certain events. The interpretation by the judge is an explanation that 

must lead to an acceptable implementation by the public regarding the rule of law for 

real events. This interpretation method is a means or tool to find out the meaning of 

the law. The justification lies in its use to implement practical provisions and not in the 

interests of the method itself. Therefore it must be assessed with the results obtained.18 

There are several methods of interpretation that are commonly applied:19 

1. Grammatical or contextual interpretation, by learning and using sentence 

relationships. 

2. Systematic interpretations, contexts, by studying systems and legal formulations 

include: 

a. Reasoning analogy and reasoning a contraction. The use of a contravention 

is to ensure that something is not stated by law in reverse. Whereas analogy 

means the extension of the rule of law. 

b. Extensive and Restrictive Interpretation (earlier weakest forms are logically no 

different). 

c. Legal refinement or rechtverfijning or specialization of law. 

3. Historical interpretation by learning: 

a. Legal history, context, past developments of specific religions such as the 

Criminal Code, BW, Roman law and so on. 

b. The history of the law, the context, the explanations of the legislative process 

in the development of the law. 

4. Teleological interpretation, context, by way of social interaction. 

Broadly interpretations can be divided into 2 (two) types, namely literal 

interpretation and functional interpretation. The literal interpretation uses the sentences 

of the rules as a handle so that they do not come out of the text (Litera egis). Functional 

interpretations are also called independent interpretations because they do not fully 

bind to the sound and content of written rules. Functional interpretations attempt to 

understand a rule by using other sources that are thought to provide greater clarity.20 

 

 
17Mundiri. (2006). Logika. Jakarta: PT. Raja Grafindo Persada, p. 2. 
18Mertokusumo, Sudikno. (2016). Mengenal Hukum: Suatu Pengantar. Yogyakarta: Cahaya Atma Pustaka, 

pp. 211 – 212. 
19Dirdjosisworo, Soedjono. (2012). Pengantar Ilmu Hukum. Jakarta: Rajawali Pers, pp. 156 – 157. 
20Safaat, Muchamad Ali, Widiarto, Aan Eko, & Suroso, Fajar Laksono. (2017). Pola Penafsiran Konstitusi dalam 

Putusan Mahkamah Konstitusi Periode 2003 – 2008 dan 2009 – 2013. Jurnal Konstitusi, Mahkamah Konstitusi RI, 
14(2), pp. 234 – 261. doi: https://doi.org/10.31078/jk1421 



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To understand more fully the related research, it is necessary to know that the 

interpretation of the law: 

1. Interpretation according to the meaning of words or terms (taalkundige interpretatie). 

The judge must find the meaning of the word law by opening a language dictionary 

or requesting a linguist’s statement. Even if that is not enough, the judge must 

study the word in sentence structure or its relationship with other regulations. This 

interpretation is the first step taken or a beginning attempt to interpret.21 

2. Historical Interpretation How this historical interpretation is made by (i) interpret 

according to the history of law (rechtshistorische interpretatie), and; (ii) explain 

the stipulation of a provision (wetshistorische interpretation) historically. Historical 

understanding is a broad interpretation or includes the preceding description. If the 

examination according to the history of the determination is done by examining the 

reports of debate in its formulation, the letters sent are related to the activities of 

the formulation, etc., while the interpretation according to the history of the law is 

carried out to investigate the origin of the text of the legal system that was once 

enacted, including also examining the source of the manuscript from other legal 

systems that are still in force in other countries. 

3. For judges, the meaning of historical interpretation is based on practical needs. 

In general, what is essential for judges is to know the intentions of the drafted 

law. Law is dynamic, and the development of legislation follows the evolution of 

society. Therefore, the meaning that can be given to a word in a positive law text 

now differs from its purpose when it was determined. Hence also, interpretation 

according to history is essentially just a guide.22 However, the interpretation of 

history not only examines treatises as stories of the formulation of manuscripts, 

but also examines the history of social, political, economic, and other social events 

when the formulation of the manuscript is discussed. 

4. Systematic Interpretation Systematic interpretation is interpretation according to 

the existing system in the formulation of the law itself (systematische interpretative). 

Systematic interpretation can also occur if one legal text and another legal text, in 

which both regulate the same thing, are related and compared with each other. If 

for example what is interpreted is an article of a law, then the same provisions, let 

alone one principle in other regulations, must be used as a reference.23 

5. Sociological Interpretation. Every interpretation of the law must end with a 

sociological explanation so that the judge’s decision is made following the real 

conditions in society. Law is a common symptom, so every regulation has a social 

 

21Khalid, Afif. (2014). Penafsiran Hukum oleh Hakim dalam Sistem Peradilan di Indonesia. Al 'Adl : Jurnal 
Hukum, Universitas Islam Kalimantan, 6(11), p. 16. doi: http://dx.doi.org/10.31602/aa.v6i11.196 

22Ibid. 
23Ibid., p. 17. 

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duty that is legal certainty in community, where the social purpose of a provision 

cannot always be understood from the words formulated. Therefore, the judge 

must look for it. Sociological interpretation is a guarantee of the seriousness of 

the judge in making decisions because his decision can realize the law in a real 

atmosphere in society.24 

6. Authentic or Official Interpretation (authenteke or officiele interpretative). This 

authoritative interpretation is following the understanding expressed by the 

legislators in the law itself.25 For example, the meaning of the word described in the 

article or in the explanation. If you want to know what is meant in an article, then 

the first step is to see the explanation of that article. Therefore, the explanation 

of the law is always published separately, namely in the Supplement to the State 

Gazette, while the text of the law in the Official Gazette. On the other hand 

hermeneutics is used as a method of interpretation that was originally a method of 

interpretation of the text, but in its development Actually hermeutics is not only a 

method of interpretation of the text and delve into its literal content, but more than 

that hermeneutics tries to explore meaning by considering the horizon/horizon that 

surrounds the text. The horizon in question is the text horizon, author horizon and 

reader horizon.26 Noting these three horizons, an interpretation or understanding 

becomes an activity of reconstruction and reproduction of the meaning of a text, 

besides tracking how a version was born by the author and what content enters into 

it. In addition, an interpreter always tries to regenerate the meaning following the 

situation and condition when the text is read or understood. Thus, hermeunitika, as 

a method of interpretation, must always pay attention to three main components, 

namely writing, context, and contextualization efforts.27 

The issue of what methods are used by judges in handling a concrete case, the 

legislators do not give priority to any of the methods in legal discovery. This means that 

the judge is given the freedom to choose what method is most suitable for handling 

the case at hand. The choice of legal discovery method is the judge’s authority. The 

choice of one method by the judge is based on what method is most convincing and 

the results are satisfactory in handling a case.28 

Progressive law is a concept of how to judge not only one but various ways. To 

make a clear description of progressive law, it is confronted with a positive-legalistic 

method of punishment, so that in the final method of punishment the law is implementing 

 

24Ibid. 
25Ibid. 
26Muwahid. (2017). Metode Penemuan Hukum (Rechtsvinding) oleh Hakim dalam Upaya Mewujudkan Hukum  

yang Responsif. Al-Hukama': The Indonesian Journal of Islamic Family Law, Universitas Islam Negeri Sunan 
Ampel, 7(1), pp. 240 – 241. doi: https://doi.org/10.15642/alhukama.2017.7.1.224-248 

27Ibid., p. 241. 
28Ibid. 



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the law. This method of law is based solely on the law (alles binnen de kader van de 

wet) or spelling the law. Here people do not think far except reading the text and its 

application, it looks like this way of punishment is like drawing a straight line between 

two points. One point is (article) the law and the other point is the facts that occur. 

Everything runs linearly, so that the method of law is like an automatic machine, and 

is referred to as “hanteren van logicalche figuren” and as “a book of mathematics.”29 

Progressive punishment can also be interpreted as testing the limits of legal 

ability. If it is said that carrying out the law is to create justice in society, then the 

code is an effort to realize that justice. Text law alone does not automatically create 

sentence. Therefore people distinguish between truth according to the text (forma/ 

legal justice) and actual justice (substantial justice). Justice is in the law, but it still 

needs to be found (het recht is in de wet, maar het moet nog gevonden warden). Thus 

the code is not the same as applying the law, but rather an attempt to bring justice 

stored in it, so that is the meaning of testing the limits of legal ability.30 

Judges are not legislators because their job is to mediate or examine and 

decide. The task of making the law is in the realm of the legislature, and however, in 

the end, the judge determines what the law wants. The judge must decide based on 

the law, but in fact, he does not only spell the text of the law but also decides what is 

stored in the book. Deciding the law is not done by reading the book (textual reading) 

but digging the moral behind it (good reading). Thus the judge actually also makes the 

law at a higher level.31 

Here the judge does not perform an independent function in applying the law 

to concrete legal events. Judges are merely mouthpieces of laws that cannot change 

or add to laws. This classic view maintained by Montesquieu and Kant is based on 

Montesquieu’s basic mind that the legislators are the only source of positive law. 

For the sake of legal certainty, the legal unity and freedom of its citizens who are 

threatened by arbitrary actions of the judge, the judge must submit to the legislators. 

This view suggests the judiciary is nothing but a shaper of syllogism. The law is a 

major premise, a concrete event is a minor premise, while the judge’s decision is a 

conclusion or conclusion. A logical conclusion will not cover more than what is in the 

premises. Likewise, a judge’s decision will not contain or include more than what is 

contained in the law relating to a concrete event. This is a typologically logical view.32 

 
 
 
 

29Rahardjo, Satjipto. (2011). Memahami Hukum: Dari Konstruksi sampai Implementasi. Jakarta: PT. Raja 
Grafindo Persada, p. 3. 

30Ibid., p. 4. 
31Ibid. 
32Mertokusumo, Sudikno. (2016). Loc. Cit. 



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C. Decision of the Supreme Court Number 46 P/HUM/2018 
 

The decision of the Supreme Court Number 46 P/HUM/2018 has granted 

the material test to the General Election Commission Regulation (PKPU) Number 20 

of 2018, has canceled Article 4 paragraph (3), Article 11 paragraph (1) letter d and 

Appendix Model B.3 Election Commission Regulation Number 20 Year 2018. 

 

Ref Article PKPU No. 20 Year 2018 
Supreme Court Judgment No. 46 P/ 
HUM/2018 

1. Article 4 paragraph (3) “In the selection 
of prospective candidates in a 
democratic and open manner as referred 
to in paragraph (2) does not include 
former convicted drug dealers, sexual 
crimes against children, and corruption” 

Article 4 paragraph (3) PKPU No. 20 of 
2018 has no binding legal force and is 
not generally valid, as long as the phrase 
“ex-convicted of corruption” contradicts 
a higher regulation, namely Law Number 
7 of 2017 concerning General Election 
in conjunction with Law Number 12 of 
2011 concerning Formation of Laws and 
Regulations -Invitation. 

2. Article 11 paragraph (1) letter d 
“Requirements for nominating candidates 
as referred to in article 10 paragraph (1) 
are in the form of:... (d) an integrity pact 
signed by the leadership of a Political 
Party in accordance with its level using 
the form of Model B.3”. 

Article 11 paragraph (1) PKPU No. 20 of 
2018 does not have binding legal force 
and does not generally apply as a phrase 
in Article 4 paragraph (3) PKPU No. 20 
of 2018. 

3. Appendix Model B.3 Has no binding legal force and is not 
generally applicable 

Table Amar Decision of the Supreme Court Number 46 P/HUM/2018 

 
Decision of the Supreme Court Number 46 P/HUM/2018 there are a number of 

considerations in deciding upon the judicial review. As the contents of the copy as follows: 

Whereas the right to elect and be elected as a member of the Legislature is 

a basic right in the political field guaranteed by the Constitution, namely Article 28 of 

the 1945 Constitution of the Republic of Indonesia. The Supreme Court also sees that 

Article 4 paragraph (3) of the Election Commission Regulation Number 20 of 2018 

is in conflict with the provisions of Article 240 paragraph (1) letter g of Law Number 

7 of 2017 concerning General Elections, which states that candidates for DPR, 

Provincial DPRD and Regency/City DPRD are Indonesian citizens and must meet the 

requirements :33... (g) “have never been imprisoned based on a court decision that has 

obtained permanent legal force for committing a crime threatened with imprisonment 

of 5 (five) years or more, unless openly and honestly telling the public that the person 

concerned is a former convict”. 

 
33Putusan Mahkamah Agung Republik Indonesia Nomor 46 P/HUM/2013 tentang Permohonan Keberatan Hak 

Uji Materiil atas Pasal 4 ayat (3), Pasal 11 Ayat (1) huruf d, dan Lampiran Model B.3 Pakta Integritas Pengajuan  
Bakal Calon Anggota DPR/DPRD Provinsi/DPRD Kabupaten/Kota, Peraturan Komisi Pemilihan Umum Nomor 20 
Tahun 2018 tentang Pencalonan Anggota Dewan Perwakilan Rakyat, Dewan Perwakilan Rakyat Daerah Provinsi 
dan Dewan Perwakilan Rakyat Daerah Kabupaten/Kota. 



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Whereas in the provisions of Article 240 paragraph (1) letter g there is no norm 

that prohibits former corruption convicts from nominating themselves as candidates 

for DPR and DPRD. The Supreme Court considers Article 4 paragraph (3), Article 

11 paragraph (1) letter d and the Model Attachment B.3 Regulation of the Election 

Commission Number 20 of 2018 in principle has limited the political rights of someone 

who will run as a prospective legislative candidate in the general election. 

The considerations of the Supreme Court in terms of the formation of legislation 

containing Article 4 paragraph (3), Article 11 paragraph (1) letter g and Appendix Model 

B.3 of the Election Commission Regulation Number 20 Year 2018 are not in line, conflict or 

do not meet the principles Formation of good statutory regulations as explained in Article 

12 letter d of Law Number 12 of 2011, namely “the regulations under the law contain 

material to carry out the law as it should”. However, the material in Article 4 paragraph (3), 

Article 11 paragraph (1) letter g and Appendix to Model B.3 of the Election Commission 

Regulation Number 20 Year 2018 which regulates a person’s political rights and contains a 

prohibition for former corruption convicts to run for people’s representatives is regulations 

which have never been ordered by the laws above, in this case Law Number 7 of 2017 

concerning General Election in conjunction with Law Number 12 of 2011 concerning 

Formation of Laws and Regulations. The judge saw an Election Commission action that 

made provisions that were not ordered by law. 

Decision of the Supreme Court Number 46 P/HUM/2018, the judge mentioned 

several considerations as the basis of interpretation such as Article 28 of the 1945 

Constitution, Law Number 12 of 2005 concerning Ratification of the International Covenant 

on Civil and Political Rights (International Covenant on Rights Civil and Politics), Article 

43 paragraph (1) and Article 73 of Law Number 39 concerning Human Rights, Article 18 

paragraph (1) letter d of Law Number 31 of 1999 Concerning Eradication of Corruption in 

conjunction with Article 35 paragraph (1 ) The Criminal Code (KUHP) which regulates the 

revocation of political rights (the right to choose and vote). 

Based on the judges’ considerations above in adjudicating and adjudicating 

cases mentioning Article 4 paragraph (3), Article 11 paragraph (1) letter g and Appendix 

Model B.3 of the Election Commission Regulation Number 20 Year 2018 is contrary 

to Law Number 7 Year 2017 concerning General Election in conjunction with Law 

Number 12 of 2011 concerning the Formation of Regulations and Regulations in its 

ruling so that the two laws become the main basis for the test in interpreting but also 

other considerations are inseparable parts because they also have a relationship with 

the judge’s ruling. 

Decision of the Supreme Court Number 46 P/HUM/2018 when viewed from 

the method of legal discovery by a judge making legal discoveries based on the law, 

interpretation is made of the norms in the law as a guide, the text in the law becomes 



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the main reference by the judge in deciding the case. The first time taken by the judge 

in the beginning of the interpretation of the judge must learn the word in the wording of 

the sentence or its relationship with other regulations, and this is the first way that must 

be done by the judge. Therefore the Supreme Court Decision Number 46 P/HUM/2018 

must be respected because it has been through the method of interpretation that is 

in accordance with the principles and principles in applying its power in finding and 

creating law. 

 
CONCLUSION 

 

Decision of the Supreme Court Number 46 P/HUM/2018 which adjudicates that 

Article 4 paragraph (3), Article 11 paragraph (1) letter g and Appendix Model B.3 Election 

Commission Regulation Number 20 Year 2018 is contrary to Law Number 7 Year 2017 

concerning General Election in conjunction with Law Number 12 of 2011 concerning 

Formation of Regulations and Regulations Judges’ considerations are based on the 

interpretation of the test object test stones namely the sentences in the text of Law Number 

7 of 2017 concerning Elections and Law Number 12 of 2011 concerning the Formation of 

Laws and Regulations as a guide so that the interpretation of judges is based on exploring 

the meaning contained in written norm text statements by studying the text in sentence 

structure or its relationship to other regulations. 

 
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