Test The Material Constitutional Court Number 34/puu-Xi/2013 2013

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 34/PUU-XI/2013 Tahun 2013

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Read the untranslated law here: http://peraturan.go.id/inc/view/11e44c5046a5c9a08527313232373139.html

1 VERDICT Number 34/PUU-XI/2013 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] who adjudicate matters the Constitution on the first and last levels, dropping the verdict in testing Act No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, proposed by: [1.2] 1. Name: Antasari Azhar, S.H., M.H. Occupation: Retired Attorney address: Jalan Merbabu block A number 13 Giriloka – 2 BSD, South Tangerang; sebagai -------------------------------------------------------------------- Pemohon I; 2. Name: Ida Laksmiwaty S.H. Job: private/household address: Jalan Merbabu block A number 13 Giriloka – 2 BSD, South Tangerang; sebagai --------------------------------------------------------------------Pemohon II; 3. Name: Maya Oktarifka Antasariputri Work: private address: Jalan Merbabu block A number 13 Giriloka – 2 BSD, South Tangerang; sebagai -------------------------------------------------------------------Pemohon III; In this case on the basis of a special power of attorney dated March 4, 2013, authorizes 1) Arif Sahudi, S.H., M.H. Nursito, 2), S.H., M.H., 3) Daim Susanto, s. HI., and 4) Kurniawan Greenhorns, S.H., all of which was an advocate on Kartika Law Firm located in the streets of Denpasar II Number 46 East Kuningan, South Jakarta, and a special power of attorney dated April 8, 2013 , authorizes 1) Sabi n. Sudibyanto, S.H., 2) w. Agus 2 Sudarsono, S.H., 3) Nurdiansyah Dwi Santoso, S.H., 4) Utomo Kurniawan, S.H., all of which was an advocate on Kartika Law Firm located in the way of the North square number 1 (Ward Patalon), Surakarta, and 5) Poltak Ike Wibowo, S.H., Advocates and legal consultants on Boyamin Poltak Kurniawan Law Firm located in the streets of Denpasar II Number 46 Eastern Brass , South Jakarta, in this case acting jointly or singly for and on behalf of the giver of power; Entirely referred to as--------------------------------------------------the Applicant; [1.3] Read the petition for the Applicant; Hearing a description of the Applicant; Heard and read a description of the Government; Heard and read the description of the House of representatives; Hear expert witnesses and the Applicant; Check out the evidence of the Applicant's writing/letter; Read the written conclusions of the Applicant and the Government; 2. SIT the MATTER [2.1] considering that the applicant had filed a petition with the petition dated March 8, 2013, which was later accepted at the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) based on deed of receipt of the Application File Number 113/URPAN.MK/2013 on March 8, 2013 and has been recorded in the book the registration Matters of the Constitution on 18 March 2013 with the number 34/PUU-XI/2013 , which has been fixed and accepted at the Registrar of the Court on 23 April 2013, substantially outlines things as follows: i. the powers of the Constitutional Court the authority to examine the Constitutional Court Act No. 8 of 1981 on CRIMINAL PROCEDURE CODE (vide evidence P-2) against the Constitution are: 1. Article 24C paragraph (1) of the Constitution, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to test the Constitution , severing of disputes the State agencies the Authority those powers granted by the Constitution, the dissolution of political parties disconnected 3, and disconnect the disputes about the results of the elections ". 2. Article 10 paragraph (1) letter a law number 8 of year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court "testing legislation against the Constitution of the Republic of Indonesia in 1945". 3. Article 7 of the Act No. 10 of 2004 juncto Act No. 12 year 2011 about the formation of Laws-the invitation, which is in essence a mention in a hierarchical position of the Constitution is higher than the law. Therefore, any provision of the Act should not be contrary to the Constitution (constitutie is de hoogste wet). If there is a provision in the legislation that conflicted with the Constitution, then that provision can be petitioned to be tested through the mechanism of the test Act. 4. Based on the above, the Applicant argues that the Constitutional Court is authorized to investigate and test application break the laws in this matter II. Position of the applicant (Legal Standing) and losses of the applicant Legal Standing: 1. That according to Article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (law COURT), stating "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of legislation , that is: a. an individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions, "which has harmed the rights of konstitusionalnya with the entry into force of article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure.


4 2. That in order for a person or a party may be accepted as an applicant in the application for testing legislation against the Constitution of the Republic of Indonesia in 1945, then the person or party in question shall be: a. describes the credentials in their petition i.e. whether as individual citizens of Indonesia, the unity of the community's customary law, legal entities or State institutions; b. loss of rights and/or authority of konstitusionalnya, in the qualifications referred to in subparagraph (a) as a result of the enactment of laws that petitioned testing; 3. That on the basis of that provision the Applicant need to first explain the constitutional rights, the credentials of the applicants, along with specific disadvantages, namely: a. that the Applicant is an individual citizen of Indonesia who consider the rights and/or konstitusionalnya authority has been adversely affected by the entry into force of article 268 in this paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (law 8/1981). b. that the applicant was Convict in criminal cases in the State Court Jakarta Selatan Number 1532/Pid. B/2009/PN. Jkt. Cells that had been terminated on February 11, 2010. The verdict, which had the force of law (inkracht van gewijsde) with the Supreme Court verdict Number 1429K/Pid/2010 dated 21 September 2010; c. that the Supreme Court's verdict against Number 1429K/Pid/2010 September 21, 2010, the applicant I ask a tremendous remedy Review and terminated by the Supreme Court Number 117PK/Pid/2011 on February 13, 2012, which decided the Review petition is rejected a proposed Applicant I; d. that since has proposed remedy Review, then under article 268 paragraph (3) of LAW 8/1981, Appellant I has no other legal efforts to clear his name, if there is new evidence, which gives a different verdict with the verdict of the South Jakarta District Court Number 1532/Pid. B/2009/PN. Jkt. Cell 11 February 2010 Supreme Court ruling juncto Number 1429K/Pid/2010 dated 21 September 2010; e. that the applicant II was the wife of the applicant I who feel the loss and suffering experienced by the claimant I. f. that the applicant III was the son of the applicant I who feel the loss and suffering experienced by the claimant I. 4. That at the time of the inspection in the South Jakarta District Court, public prosecutor postulated that the claimant I have done to the victim of the terror by text message. One of the SMS, which evidence the Prosecutor General is the SMS in February 2009 which reads "sorry mas this problem knows both of us if only to terblow up the consequences". 5. That according to expert Dr. IR. Agung Agung Harsoyo, M.Sc, m. Eng, in the span of time between February-March 2009, there are no SMS sent from the sixth mobile phone number belonging to the Former Nasrudin. In February 2009, number HP Antasari 0812050455 recorded four SMS from mobile number Nasruddin 0811978245, but there is no record of the existence of an SMS reply from the Former. While Nasrudin Zulkarnaen late HP Chip, which contains SMS threat damaged, could not be opened. 6. That Dr. Ir Supreme Supreme Harsoyo M.Sc, m. Eng, in his statement at the trial in the South Jakarta District Court suspect that sent via SMS, the web server; 7. That the applicant has made efforts I unpacked engineering technology by reporting the existence of a dark and mysterious SMS to Mabes Polri and given the promise of this report will be followed up, but so far the reports and promises were not realized (vide evidence P-17). 8. That the applicant I've done remedy Review based on reason and evidence are strong enough and is supported by most of the characters and society Indonesia but still rejected by MA (vide evidence P-8 and P-9).

6 9. That the applicant I have reported the alleged engineering and conspiracy case against him to Ky (KY) where KY had found irregularities and violations of ethics of judges as well as make recommendations for sanctions to South Jakarta State Court judges but the Supreme Court ignored it (proclamation of the mass media will be evidence). 10. That against the attitude of MA who ignore recommendations KY has got the outcry and criticism from various parties including the former Chairman of MK Jimli Asshiddiqie (preaching of mass media will be evidence). 11. That since has proposed remedy Review, then under article 268 paragraph (3) of LAW 8/1981, Appellant I has no other legal efforts to clear his name, if there is a State which can uncover who exactly the SMS sender to the victim; 12. That the Applicant also wished to assist law enforcement in order to find the real perpetrator who has killed the Alm. Andi Nasrudin Zulkarnaen. 13. That the Applicant pursued every effort I to perform self-defense has not obtained the results, then become rights and obligations of the applicant to apply for the test of the law in the case a quo; 14. That any crimes will give his righteous door unexpectedly for example the actual murderer offender will provide recognition in the future as a form of contrition and penance, so the law must still give its doors to obtain truth and justice. The losses of the applicant: 1. That the sense of Justice has been tereliminir by the provisions that restrict the filing of Review for the second time, as set forth in the provisions of the legislation which petitioned to be tested so that the applicant could not fight for justice before the law as citizens of Indonesia [vide Article 28D paragraph (1) of the Constitution of the Republic of Indonesia, 1945];


7 2. That based on the principle of fairness and the principle of legal positions in the equation (equality before the law), the rights of the applicant as a people and as a citizen of Indonesia over justice is not terakomodir by the legislation proposed to be tested material cover the possibility for the applicant to achieve justice so that in this case the Applicant feels didzolimi over the legislation. Thus, the existence of a law that prohibits the review for a second time after the discovery of novum indeed injure the sense of Justice (sense of justice) seekers of Justice (yustitiabelen); 3. That prohibition of review for a second time whether Sha-ignore the principles and values of Justice, the principle of substantial material/state law which guarantees the rights of citizens to fight for Justice, and contrary to the law of responsive and progressive, so that the search for Justice should not be any restrictions; 4. That the doctrine of criminal law justice higher than legal certainty, so that if had to choose then Justice mengeyampingkan legal certainty. Thus the submission Review by the victim or his heir and may be submitted more than once is in order to seek and obtain justice should be given opportunities despite the mengeyampingkan legal certainty. On the other hand PK obviously does not hinder the execution of the criminal verdict, so actually there is no relevance to legal certainty. 5. That due to Article 268 paragraph (3) of LAW 8/1981, if at any time there are technological or software-specific software that can detect the flow of SMS received Late. Nasrudin Zulkarnaen, who the applicant is I (and based on information expert at the trial in the State Court Jakarta Selatan) is not proven to be sent by using the number of applicant I, then the applicant is I keep losing the chance or the opportunity for remedy in order to exempt from punishment; 6. That Article 263 subsection (1) of LAW 8/1981 stated: a. Against the Court ruling which has gained force of law remains, except for the verdict are free or off of all the demands of the law, the convicted person or 8 heirs can file a request for review to the Supreme Court. As a consequence of Article 263 para (1) juncto Article 268 paragraph (3) of LAW 8/1981, if at any time there is a new evidence based on Science and technology, for example, there are technological or software-software that can clean up the good name of applicant I, then the applicant II and III Applicants were not able to lodge a remedy Review. This happens because the claimant I have used legal effort to review the return. 7. That in principle the value of Justice as set forth in the Constitution of the Republic of Indonesia in 1945 above it can be concluded that justice is a pillar of the law enforcement in Indonesia so that the seekers of Justice is given the right to seek justice that seadil-fair. However in a bill that tested to restrict petitioned the seekers of Justice to seek justice seadil-fair so that this goes against the principle of fairness embodied in the Constitution of the Republic of Indonesia in 1945; III. Does Nebis In Idem 1. That Article 60 of the ACT, the COURT stated: "the material charge Against paragraph, chapter, or section in the legislation that has been tested, the test cannot be appealed again." Exception to the rule against Article 60 of the ACT is set out in the regulations of the CONSTITUTIONAL COURT the Constitutional Court number 06/FMD/2005 of Beracara Guidelines In Testing legislation, which in article 42 States: (1) the charge to the materials paragraph, chapter, or section in the ACT that have been tested, the test cannot be appealed again. (2) regardless of the provisions of paragraph (1) above, the application for testing the charge against ACT subsection, article, and/or the same section with something that is never disconnected by the Court can be petitioned testing back with terms of constitutionality is the reason of the petition in question is different.

9 2. That Testing Law is different from the ruling of the Constitutional Court the number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010 with the reason: a. that the Testing matter number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010 not basing stone test Article 28C paragraph (1) of the Constitution, in which the material anyway in the form of the utilization of science and technology to find and obtain justice. The petition filed this postulated on stone test Article 28C paragraph (1) of the Constitution, so not nebis in idem; b. That the application for testing the Act is constitutional in nature, in contrast to the conditional test before requesting the article be tested completely contradicts with the Constitution so completely not binding without any condition; c. That the application for testing Law is different from the ruling of the Constitutional Court the number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010 where testing judicial review rejected because of the impersonal because it also test the ACT Supreme Court ACT and the powers of the Judiciary, including a review of case against civil liability. While judicial review filed this special Review on the LAW 8/1981 who hold evidentiary material so as to mendapatkkan the truth based on novum shouldn't be limited only once pengajuannya. A review which is set in the CODE of CRIMINAL PROCEDURE are lex specialist Review which is set against the ACT and the ACT on the Judicial powers of the MA. d. that the petition of the applicant do not ne bis in idem as only test one (1) of the Act, namely the LAW 8/1981 which specifically concerns the criminal with the method of proof material, do not test the Power ACT and MA ACT of Justice, which governs the review in general civil litigation matters including Review by the method of proof are formyl. e. That the application for testing the legislation on the matter number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010 is to declare Article 268 paragraph (3) of LAW 8/1981 unconstitutional in


10 whole. Which, if associated with the reasons for the filing of the legal Review Efforts, as set forth in section 263 subsection (2) of LAW 8/1981, can also be interpreted as applicable to all filing reason Remedy Review. Whereas the application for Testing the legislation filed this special only if the claimant found evidence (novum) recently, not for all the reasons the filing of Legal Review Efforts. Novum new should be based on the development of science and technology, by which time the matter examined untapped or not yet discovered. The reasons can be summarized as the table below: No. Application Testing legislation in Matter of number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010 application for Testing the Statute on things of the Number 34/PUU-IX/2013 1 Article that tested not only the 268 article paragraph (3) of LAW 8/1981 only, but also the articles associated with a review under the ACT Supreme Court ACT and the powers of the Judiciary. So that Review was tested both in criminal cases as well as in civil matters Article who petitioned to be tested only 268 Article paragraph (3) of LAW 8/1981. So it's only a review in criminal cases 2 Stone test used is article 1 paragraph (3), article 27 paragraph (1), article 28D, paragraph (1) of article 28 h subsection (2), article 28 (2) of paragraph I of the Constitution for the matter number 16/PUU-VIII/2010 and article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the Constitution for the matter number 64/PUU-VIII/2010 Rock the test used is article 1 paragraph (3) Article 24, paragraph (1) of article 28C, paragraph (1), article 28D paragraph (1) of the Constitution. With the emphasis on the right to benefit from science and technology, as referred to in article 28C paragraph (1) of the CONSTITUTION of article 268 begged 1945 3 paragraph (3) of LAW 8/1981 was declared contrary to the Constitution and do not have the force of law, or unconstitutional unconditionally begged Article 268 paragraph (3) of LAW 8/1981 was declared contrary to the Constitution if it meant not excluded against reason finds new evidence (novum) based on the utilization of science and technology 11 or 4 if conditional constitutional associated with the reasons for the filing of the legal Review Efforts, as set forth in section 263 subsection (2) of LAW 8/1981, can also be interpreted as applicable to all filing reason Remedy Review (Kekhilafan judge, dispute the verdict, and Novum) only for reasons of if found new circumstances (novum), not all the reasons for the filing of the legal Review Efforts. Novum new in particular can be based on the development of science and technology, by which time the matter examined untapped or not yet discovered. 3. That the Constitutional Court into consideration in rejecting the application for testing Article 268 paragraph (3) of LAW 8/1981 in number 16/PUU-VIII/2010 and number 64/PUU-VIII/2010, are: "according to the Court if terms of the petition for reconsideration as extraordinary remedy is not constrained then it will happen the legal uncertainty and vagueness to the number of times a review can be done;" 4. That the consideration of the Court's docket number 16 on Kontitusi/PUU-VIII/2010 and number 64/PUU-VIII/2010 the right, if placed on the basis of the "lites finiri oportet", i.e. that every lawsuit that there should be an end. However, when there is friction between the interests of legal certainty with the certainty of Justice, then the law should make room in order for the assurance of Justice can be achieved. Isn't a court held for realize justice? 5. That Article 263 para (2) of LAW 8/1981 stated: (2) the request for a review is conducted on the basis of: a. If there are new circumstances which give rise to strong suspicion, that if the situation was already known at the time the trial is still in progress, the result will be either free or ruling of any lawsuits or public prosecutor demands unacceptable or against the matter applied lighter criminal provisions; b. If there is a verdict in the various statements that something has been proven, but the thing or circumstance as the basis and reason for ruling that stated it has been proven that, turns out to have been at odds with one another; c. when the verdict was clearly shows a kekhiIafan judge or confusion is real. 6. That will be a drag on with no certainty of when the end of the inkonstitusionalitas Article 268, if paragraph (3) is applied to all the reasons Review. However, if restricted to a certain reason, then legal certainty can be achieved without a throw over the certainty of Justice, both for the victims as well as for the convicted person. 7. That the Applicant as I pass, in criminal cases the Applicant sat I as a convicted person, the family of Alm. Nasrudin Zulkarnaen as victims, also apply for Testing legislation against Section 263 subsection (1) and article 268 paragraph (3) of LAW 8/1981, with the case Number 21/PUU-XI/2013. This can be meant that for the victims, however, the Court ruling related to criminal cases encountered by Applicant I, does not meet the sense of Justice. 8. That there is a possibility at the moment of the examination in the proceeding, the parties (victims represented by the Prosecutor and the defendant) has limitations in test a evidence, either because of limited ability as well as the presence of the State has not been able to test the evidence. For example, technology that detects whether the received SMS correct victim (Alm. Nasrudin Zulkarnaen) actually submitted by Applicant I or from elsewhere, which is not known to the Applicant I when the matter is examined at the South Jakarta District Court 5 years ago? If it's new technology found 10 (ten) years, while the applicant I never filed a legal Review of the previous efforts, while Article 268 paragraph (3) of LAW 8/1981 still reads what it is or is not modified, then the applicant is I will never get justice. 9. That in the Netherlands, the issue of the review, the criminal has reached the development, where Peninjuan Return can be done


13 more than 1 (one) time. In particular, on matters that do not have daluwarsa, such as in the case of murder of Deventer. In the case of a murder that occurred in 1999, the results of this research into DNA, which is used as the basis for the overthrow of punishment, still continue to question by advocate convicted person, although the matter has been through some trials at various levels, as well as some application for PK asked. (See the paper the priest Nasima in http://nasima.wordpress.com/2013/04/05/seperti-apa-pengaturan-review-back-in-the Netherlands/) IV. Proposed norms to be tested 1. 268 Article Material norms of paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981, additional sheets of the Republic of Indonesia Number 3209) reads: "request for Review of a verdict can only be done one time only"; 2. The Basic Law Norms in 1945 that became the Testers, namely: a. Article 1 paragraph (3) reads: "the State of Indonesia is a country of laws"; The principle of State of law are all based on the law, the law to achieve justice, so that all the legal process is the creation of Justice in society. When faced with the choice of Justice and legal certainty then Justice must be selected and take precedence. Thus the efforts of Review in criminal cases cannot be limited only once in order to seek justice for the ultimate fate of a person to avoid the penalty of imprisonment or sanctions the death penalty when unfounded substantiation anti-materiel known later on not guilty. b. Article 24 paragraph (1) which reads: (1) the powers of the judiciary is an independent power to conduct trials in order to enforce the law and justice.

14 section 24 paragraph (1) contains the sense that as a consequence of the choice of the Republic of Indonesia as a State law, then the powers of the institutions of justice are to be free from the pressure of any party. The purpose of this judicial power was eventually ditegakkannya of law and justice. Judge not solely be the funnel law. At the time of termination of a matter, the judge shall apply the law for the sake of public order of society and legal certainty. At the same time, the judge should also be prosecuted can manifest justice. If the law in the law will be applied (enforced) is not found, the judge is given the authority to seek or even create the law. If any provision of the Act which are used as the basis for applying the law or laws that will be enacted is not in accordance with the times and demands a sense of Justice, or if the legislation does not regulate, the judge is obligated to dig, abreast of and understand the legal values and sense of Justice that lives within the community. The judge is a man who will not escape from the confusion and mistakes, then the means to make corrections must be opened the door wide-width form an extraordinary remedy (PK) may be submitted more than once, should not be restricted to once again. Justice is a human rights everyone though already dead as reflected a review in criminal cases can be filed by the family of the convicted person or his heir. c. Article 28A Constitution explicitly says: everyone has the right to live and maintain living and life. d. Article 28C paragraph (1) which reads: (1) everyone has the right to develop themselves through fulfillment of the needs of nature, is entitled to education and benefit from science and technology, art and culture in order to improve the quality of life and well-being of mankind.

3 the utilization of science and technology is to be citizens in order for the sake of improving the quality of life and well-being of mankind including the fight for Justice for oneself as well as others so that the efforts of Review in criminal cases cannot be limited only once in order to seek justice for the ultimate fate of a person to avoid the penalty of imprisonment or sanctions the death penalty when unfounded substantiation anti-materiel known later on not guilty. e. Article 28D paragraph (1) reads: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; Article 28D paragraph (1) clearly states a fair legal certainty so that legal certainty without justice it will injure the protection, the grant of guarantees and recognition of equal treatment before the law. The only legal pursuit of certainty would be in vain if it does not give justice, law became useless and do not contribute anything to the well-being of humanity. Thus a review in criminal cases when demarcated only once is clearly contrary to the Constitution. Where law enforcement is based more on the sense of the mind rather than on the basis of conscience or in other words put legal certainty than the justice or the opposite of the principle ius contra legem. V. the applicant with reasons applied to the review in the law No. 8 of 1981 is contrary to the Constitution of the Republic of Indonesia in 1945 because: 1. That the Applicant felt touched upon the struggle of the families of the victims (alm. Nasrudin Zulkarnaen) represented his brother Andi Syamsudin Zulkarnaen to seek justice in the form of efforts to find who is the real killer alm. Nasrudin Zulkarnaen. The Applicant further feel thrilled because the families of the victims alm. Nasrudin Zulkarnaen


16 do not trust and do not believe I was involved in the killing of the applicant's full engineering and conspiracy. 2. That the struggle of the families of the victims alm. Nasrudin Zulkarnaen for seeking the truth and get justice including one filed testing Law to the Constitutional Court with the register of case Number 21/PUU-/2013. For this the Applicant wished to incorporate themselves in the PUU-PUU/21/2013 by means of asking the Testing LAW 8/1981 Article 268 subsection (3); 3. That the applicant I which is the convicted person in criminal cases in the State Court Jakarta Selatan Number 1532/Pid. B/2009/PN. Jkt. Cells that had been terminated on February 11, 2010. The verdict, which had the force of law (inkracht van gewijsde) with the Supreme Court Verdict Number 1429K/Pid/2010 dated 21 September 2010; 4. That the Supreme Court's verdict against Number 1429K/Pid/2010 September 21, 2010, the applicant I ask a tremendous remedy Review and terminated by the Supreme Court Number 117PK/Pid/2011 on February 13, 2012, which in essence decided refused the application for Review filed the applicant I; 5. That since has proposed remedy Review, then under article 268 paragraph (3) of LAW 8/1981, Appellant I has no other legal efforts to clear his name, if there is new evidence, which gives a different verdict with the verdict of the South Jakarta District Court Number 1532/Pid. B/2009/PN. Jkt. Cell 11 February 2010 Supreme Court ruling juncto Number 1429K/Pid/2010 dated 21 September 2010; 6. That at the time of the inspection in the South Jakarta District Court, public prosecutor postulated that the claimant I have done to the victim of the terror by text message. One of the SMS, which evidence the Prosecutor General is the SMS in February 2009 which reads "sorry mas this problem knows both of us if only to terblow up the consequences". 7. That according to expert Dr. IR. Agung Agung M.Sc Harsoyo, m. Eng at the time was undergoing examination at the South Jakarta District Court stated that in the span of time between February-March 2009, not 17 there are SMS sent from the sixth mobile phone number belonging to the Former Nasrudin. In February 2009, number HP Antasari 0812050455 recorded four SMS from mobile number Nasruddin 0811978245, but there is no record of the existence of an SMS reply from the Former. While Nasrudin Zulkarnaen late HP Chip, which contains SMS threat damaged, could not be opened. 8. That Dr. Ir Agung Agung M.Sc Harsoyo, m. Eng, in his statement at the trial in the South Jakarta District Court suspect that sent via SMS, the web server; 9. That the applicant has made efforts I unpacked engineering technology by reporting the existence of a dark and mysterious SMS to Mabes Polri and given the promise of this report will be followed up, but so far the reports and promises were not realized (the preaching of the media will be evidence). 10. That since has proposed remedy review, then the opportunity for The Applicant to file the lawsuit verdict back pidananya have been covered under article 268 paragraph (3) of LAW 8/1981. Once did one moment there is a State which can uncover who the actual sender of the SMS to the victim, the new evidence that has no value at all for the applicants I if will clear his name; 11. That if seen from its history, ranging from Reglement op de Srtrafvordering (Stb juncto 57 40 Number 1847), after independence in PERMA number 1 in 1969 as well as PERMA number 1 in 1980, remedy Review only earmarked solely for the interests of the convicted person, and not for the benefit of the country. The soul and spirit of the provisions on the PK is maintained and becomes the soul and spirit of the law: in Chapter XVIII – article 263 s. 269 d CODE of CRIMINAL PROCEDURE. Due to the interests of the convicted person, the State should not give the limitation of the number of times the legal efforts a review can be submitted. Lapses in judicial practice occurs when the Supreme Court granted Review try committed Prosecutor against non Jonathan Pakpahan (Ruling Number 55 k/Pid/2006). When 18 – in the new order regime (authoritarian), people think – can still know. But then after authoritarian regimes tumbles, it turns out that the Supreme Court turned out to be using the wrong verdict as a reference, as in the ruling of RAM Gulumal (number 03PK/Pid/2001), Soetyawati (number 15PK/Pid/2006), Dr. Eddy Linus dkk (number 54 PK/Pid/2006), Pollycarpus (number 109PK/Pid/2007), until things Joko s. Tjandra (12PK/Pid Number. Sus/2009). 12. That Article 28C paragraph 1 of the Constitution reads, "everyone has the right to develop themselves through fulfillment of the needs of nature, is entitled to education and benefit from science and technology, art and culture in order to improve the quality of life and for the welfare of mankind". Thus in order to seek the truth to justice then any citizen is entitled to the benefit of science and technology such as DNA testing, the test lies it includes State-of-State in the field of telecommunications, as well as every citizen has the right to promote himself to get justice. 13. That article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945 declared Indonesia as a State law, provide recognition, guarantees, protection and legal certainty are fair to every citizen on the law and justice. Press the point of norms in article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the Constitution is the attainment of a just legal certainty, not simply a legal certainty that throw over the sense of Justice. 14. That Aristotle in book Dr. Krisna Harahap, S.H., m. h.; entitled "Constitution of the Republic Indonesia. Since the proclamation until the Reformation ", Publisher of PT. Budi Grafitri Utami, 2004, p. 11, confirms the State law is a country that stands above the law that guarantees justice to all its citizens. Aristotle further emphasized that the rule in the country is not a man, but a fair mind, whereas the Lords only legal holds and balance.


19 15. That the right to justice is the right of every citizen without exception especially citizens who are currently fighting for Justice (yustitiabelen) and anyone should not impede justice seekers or citizens to obtain justice. In connection with the justice Prof. Dr. Moh. Mahfud MD, S. H.; in his book titled "building of political law, enforce the Constitution", LP3ES, Jakarta Library, 2006, pp. 187 and 188 States that Indonesia as a country of law especially in the sense of material to see that the law is not only formally established by the legislature but the value of his Justice made important points. That the enforcement of the law (law enforcement) that means upholding of Justice (justice enforcement) and truth. Here, the concept of State law given the meaning of the material so that its main reference not only the written law as practised in the familiar legisme but rather a fair law. Legal certainty here must be placed within the framework of enforcement of Justice (justice enforcement), so if they are not in line, then keadilanlah to be won, because the law is a tool to enforce justice substantial (material) within the community, not a tool to find winning formally; 17. That criminal law enforcement process have yet to make the most of science and technology in particular DNA testing, ballistics tests and found the truth so lets lie in a downright utilize science and technology in the future. 18. That any crimes will give his righteous door unexpectedly such as perpetrators of crime/killer who actually will give recognition in the future as a form of contrition and penance, so the law must still give its doors to obtain truth and justice; 19. That deliver solutions to answer and truth and justice, then the remedy Review criminal cases already should be submitted more than once with the provisions based on reasons of new evidence (novum) based on the utilization of science and technology and responsive 20 20. That according to Prof. Dr. Jimly Asshiddiqie, constitutional protection, S.H. against human rights with legal guarantees for the demands of the penegakannya through a fair process. Protection of human rights that are widely promoted in order to promote respect for the rights and protection of human rights as an important feature of a democratic legal State; 21. That was later the basis of human rights and fundamental legal positions in the equation (equality before the law) spelled out in article 24 paragraph (1) and section 28D subsection (1) of the Constitution of the Republic of Indonesia in 1945, basing on the provisions of the Constitution of the Republic of Indonesia in 1945 which was used as a test tool, contained essence:-need equality in the law (equality before the law); and principles of Justice; 22. That is the duty of the whole society to participate hosting a social control against legislation that does not favour to his sense of Justice and does not bring benefits to the wider community as well as inhibiting the creation of legal certainty; 23. That the similarities in the law (equality before the law) and the principle of fairness has been tereliminir by the provisions that restrict the filing of Review more than once as set forth in the provisions of the legislation which petitioned to be tested so that the Applicant could not enjoy the justice before the law as citizens of Indonesia [vide Article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945]; 24. That the purpose of the law of criminal procedure, is to seek and obtain, or at least approaching the objective truth, that truth as complete as-lengkapya of a criminal, by applying the provisions of the law of criminal procedure honestly and appropriately. The goal is to find who is the perpetrator who commits an offence can didakwakan law and demanded the examination and decision of the Court, in order to find out whether a proven criminal acts have been committed and whether the person charged can be blamed, then the CODE of CRIMINAL PROCEDURE should be used for a maximum of 21 get truth metariil with how Flex or develop or perform extensive interpretation against the provisions of the conditions. Hence the need to shift the perspective of the provision of the law of criminal procedure, from the offender oriented became victim of retributive justice and orented became justice restorative or sociological justice. 25. That country United States (USA) semaju any repetition of Hearings in certain cases it is customarily done. A true story written John Grisham in his novel The Innocent Men (not guilty) is interesting to be used as reference for the upholding of Justice in Indonesia. In the novel the perpetrators who want to cancel, and finally sentenced to death was freed from jail after filing an attempt a repeat Session (can be understood as a review). A synopsis of the top of the novel can be seen at http://bukufanda.blogspot.com/2011/06/innocent-man.html 26. Indonesia does not recognize that the Anglo Saxon system where the trial can be repeated many times as the country United Kingdom and United States, as the true story of The Innocent Man and the repeated Court lawsuit against Husni Mubarak Egypt's former President, but to approach the objective truth as applicable in developed countries and the renewal of the CODE of CRIMINAL PROCEDURE then the Review should be submitted more than once. 27. That in the Netherlands, however, the country is also a growing desire to make room so that a review can be done more than once. In a bill that recently passed the year 2012, "novum" not only means a new factual conditions, but also perspective-a new perspective that is obtained due to the development of science and technology, for example the new results obtained with the use of the latest forensic techniques. Thus, understanding new facts are no longer to be understood as a fact (recently), but it could be a new way to check those facts. For example, he found spots of blood may have already happened before, but through the new DNA examination are known, it turns out that the new inspection results found. (Imam Nasima, a researcher at the Center for the Study of law and policy (PSHK) on http://nasima.wordpress.com/2013/04/05-like-what-settings-review-back-in-the Netherlands/)


22 28. That in accordance with the jurisprudence of the practice during this run, the Supreme Court, has many do extensive interpretation in the form of growth to the meaning or overrule against imperative provisions that exist in the CODE of CRIMINAL PROCEDURE. Extensive interpretation in the form of growth to the meaning or the CODE of CRIMINAL PROCEDURE provisions overrule against, in terms of doctrine, on the substance of the provisions of the CODE of CRIMINAL PROCEDURE diskresi is indispensable to obtain resolution of matters that are more fair, in terms of the aspects of the public interest and demands a more intrinsic sense of Justice and humanity are known by the term "According to the principle of justice". 29. That in order to enforce the law that justice was supposed to Section 263 subsection (3) of LAW 8/1981 was declared constitutional the conditional so it reads: "request for Review of a verdict can only be done one time only, unless the reason for the finding of new evidence against (novum) based on the utilization of science and technology may be submitted more than once". 30. Look at the provisions of article 66 paragraph (2) of ACT No. 14 of 1985 on the Supreme Court as modified by ACT No. 5 of 2004 and as amended by ACT No. 3 of 2009, determined that "the petition for review does not suspend or terminate the execution of court rulings." From the provision of article and explanation of his last chapter also reads "pretty obvious", then we can conclude that the efforts of the review ("PK") will not delay implementation of the ruling of the appeal. Thus the principle of legal certainty been fulfilled by the enactment of Section 66 paragraph (2) the filing because UUMA PK do not preclude the execution so that a matter which had the force of law and already executed process itself is already final. PK with new circumstances or reason novum in order to get justice and it shall be opened widely and should not be restricted to one time only. Justice in the Constitution too much referred to included the opening of Pancasila Principles related to the 5 (five) 23 "social justice for the whole of Indonesia society" while on the other hand the principle of legal certainty in the Constitution mentioned only once in the Article 28D paragraph (1) of the Constitution, that provided legal certainty should be fair, if this law is not fair kepasitian then it will fall by itself. PK with reason Novum may be submitted more than once does not crash into the principle of legal certainty and the principle of "justice delayed justice denied" because the matter had already been dieksekusinya with the final ruling of the Court which has magnitude. PK with reason Novum may be submitted more than once is just purely to accomodate the onset of a new State if not undertakes will harm the sense of Justice, especially the novum of process utilization of science and technology. 31. That limitation as Article 28J paragraph (2) of the Constitution of the Republic of Indonesia in 1945 still contains terms satisfy the taste of the fair in accordance with considerations of a moral, religious values, security and public order in a democratic society so that the limitation of the PK only once against new circumstances clearly hit a principle of Justice as full sounds as follows: "in the menjanlankan of the rights and freedom of every person subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of the person other and to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic society ". 32. That Restrictions would relevant PK only once when applied to criminal acts with the threat of jail or a fine. While criminal acts with the death threats that robs a person's right to life as guaranteed by article 28J paragraph (2) of the Constitution of the Republic of Indonesia in 1945, then the PK can be done more than once with the terms reason novum. Restrictions may also be against the Novum valid by means of the utilization of science and technology so that it can be formulated to article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE reads: 24 "request for Review of a verdict can only be done one time only, unless new circumstances it finds reasons against (novum) based on the utilization of science and technology towards criminal cases with the penalty of death then it can be submitted more than once". However such restrictions formulated this fixed points will harm the sense of Justice and setting this restriction can be handed over to the framer of laws, namely the HOUSE of REPRESENTATIVES and the Government. But if the Constitutional Court set it then not including Ultra Petita as petitum of the Applicant; 33. That in case of Sengkon and Karta never sought new evidence or new circumstances (novum), but instead the novum come by itself. Before the case of Sengkon and Karta unregulated PK, but later to fill the vacuum of law due to the tercederainya sense of Justice dramatically rising PERMA number 1 in 1980 though unknown in order legislation. In the case of Antasari Azhar (applicant) can happen the same thing where novum will come again by itself although it has already been filed at first and was rejected, so if a PK based novum is limited only once then the legal justice system in Indonesia would somersault and more wounding a sense of Justice in society. 34. That submission at the second time is against the ruling of the magnitude of the law remains (inkracht), thus the second PK not test Verdict: first, in other words not a PK PK PK against Verdict. If accepted can be either a verdict of non onslag, or a reduction of the penalty. If PK is denied then it does not mean anything and doesn't affect the execution of the verdict which has a magnitude of law (inkracht), so if there is a novum then was supposed to PK may be submitted more than once. 35. That the prevailing system of Universalism in the international world in order to get justice is always given the opportunity the Court reconfigured as happened in the United States and Egypt (the case of former President Husni Mobarak). While in the unitary State of the Republic of


25 Indonesia court system in order to seek justice in the adoption in the form of the submission of the PK, so already should be PK reason based novum may be submitted more than once. 36. Thus the review or request civiel i.e. examine and prosecute or disconnected return court rulings which have the force of law anyway because it is known there are new things that used to be unknowable, that if the decision of the judges will then unfold into another. In terms of the review may be brought back all the decisions that have legal powers remain including a review though, to meet the legal certainty of fair and equal treatment before the law in accordance with article 28D paragraph (1) of the Constitution. The review is an extraordinary remedy filed by parties with an interest can only be carried out by the Supreme Court (article 21 of ACT No. 14 of 1970, hereinafter set forth in Chapter IV of part IV of the ACT in 1985, the Number of article 66-76) on the basis of the provisions of article 263 para (2) of the CODE of CRIMINAL PROCEDURE law review effort (PK)/Herziening may be submitted because of the following reasons: 1) when there are new circumstances which give rise to the alleged strong , that if the situation was already known at the time the trial is still in progress, the result will be either free or ruling of any lawsuits or public prosecutor demands unacceptable or against the matter applied lighter criminal provisions; 2) if there is a verdict in the various statements that something has been proven, but the thing or circumstance as the basis and reason for ruling that stated it has been proven that, turns out to have been at odds with one another. 3) When the verdict was clearly shows a kekhilafan judge or confusion is real. Where the reasons for the number 2 and number 3 is it worth filing a review limited only one time, but for 26 number 1 (novum) should be opened the opportunity to Review more than once VI. Petitum 1. Receiving the petition for the Applicant entirely; 2. Declares Article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure reads: "request for Review of a verdict can only be done one time only" contrary to the Constitution if it meant not excluded against new circumstances it finds to reason (novum); 3. Declares Article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure reads: "request for Review of a verdict can only be done one time only" does not have the force of law that bind if not excluded meant against new circumstances it finds to reason (novum); 4. Declares Article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure, more reads: "request for Review of a verdict can only be done one time only, unless new circumstances it finds reasons against (novum) may be submitted more than once". 5. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be; If the Tribunal Judges the Constitution holds other, please seadil-fair Award (ex aequo et bono); [2.2] considering that to prove the evidence, the Applicant submits evidence that writing letters/marked evidence of P-1 to P-24 with evidence, as follows: 1. Proof of P-1: Photocopying Card Sign Residents on behalf of Claimant Antasari Azhar, S.H., m. h.; 2. Proof of P-2: photocopies of Act No. 8 of 1981 on the law of criminal procedure; 3. Proof of P-3: Photocopying, Merdeka.Com Voice News May 7, 2009, titled "Police Examine Other Motives"; 4. Proof of P-4: Photocopying News Vivalog.Com, entitled "the involvement of the Assistant in the case of the Former;

27 5. Proof of P-5: Photocopying business news-Jabar.Com, dated 22 September 2011, entitled "Victim's brother: murder of Nasruddin Brain Not Antasari" 6. Evidence of the P-6: Photocopying News Vivanews, 6 September 2011, titled "Sister Nasruddin Asked Antasari Freed; 7. Proof of P-7: Photocopying Detiknews News, February 14, 2012, entitled "this is the reason MA Rejects PK Antasari Azhar"; 8. Proof of P-8: Photocopying News Okezonenews, titled "the 3 things that make PK Antasari Still rejected" 9. Evidence of the P-9: Photocopying, Wordpress.Com News February 14, 2012, entitled "strange, magical Bin Inconsequential Engineering Case Antasari Ashar"; 10. Proof of P-10: Photocopying News Metrotvnews.Com, entitled "Appeal Accepted Husni Mubarak Much Trial Reset"; 11. Proof of P-11: Photocopying Republika Online, titled "Trial Husni Mubarak will be repeated, why?"; 12. Proof of P-12: Photocopying explanation of Act No. 8 of 1981 on the law of criminal procedure; 13. Proof of P-1: Photocopying Card Sign on behalf of the applicant Population Ida Laksmiwaty S.H. 2. Evidence of the P-14: Photocopying Card Sign Residents on behalf of the applicant Oktarifka Antasariputri Maya; 15. Evidence of the P-15: a photocopy of the applicant's Attorney Ida Laksmiwaty S.H., and Maya Oktarifka Antasariputri; 16 proof of P-16: a photocopy of the verdict of the Supreme Court Review Number 117 PK/PID/2011, dated February 13, 2012; 17. Evidence of the P-5: the Supreme Court of Cassation Verdict Photocopy Number 1429 K/Pid/2010, September 21, 2010; 18. Evidence of the P-18: Photocopying Court ruling the country South Jakarta Number 1532/PID. B/2009/PN. JKT. Tue, 11 Febaruari 2010; 19. Proof of P-19: a photocopy of proof of Report Number Sign TBL/345/VIII/2011/BARESKRIM, dated 25 August 2011; 20. Proof of P-20: a photocopy of the article Wordpress.Com, titled "what kind of Settings Review in the Netherlands";


28 21. Evidence of the P-21: a photocopy of the verdict of the Constitutional Court Number 133/PUU-VII/2009, dated 25 November 2009; 22. Evidence of the P-22: Online.Com Legal News, 6 September 2011, titled "MA Defends Recommendations KY Case Antasari"; 23. Proof of P-23: Tempo.Co, dated April 9, 2013, entitled "Witnesses do not attend, the hearing Postponed Antasari"; 24. Evidence of P-24: Photocopying the verdict of the Constitutional Court No. 46/PUU-VIII/2010, dated February 17, 2012; In addition, the Applicant filed two witnesses and six experts who testified under oath in the trial Court on the date ... ...., as follows: WITNESS the APPLICANT 1. Sri Bintang Pamungkas IR. MSISE, PhD, That the witness would convey three things/three things, namely, first, a review on the charge to witness, in 1995, because of a violation of article 134 of the CRIMINAL CODE and article 136 bis, caused a witness allegedly insulted the President. Second, Subversion charges, violated the PNPS number 11 in 1963. Third, the criminalization of self against witnesses and witnesses were dismissed with no with respect as CIVIL SERVANTS and witnesses for 18 years could not be promoted until now; In 1995 a witness accused of insulting the President in Germany, and witnesses exposed the penalty 2 years 10 months on May 8, 1996. But before the witness went to jail, got the indictment again allegations of subversion. Therefore, the witness was arrested by the Attorney General's Office and the intelligence on hold in there for 2 months. When the witness was detained together with colleague witnesses from Indonesia that democratic Union Party also delivered the Declaration of Indonesia Democratic Union Party in 1996 when some time after the verdict fell; From brother Saleh Abdullah, Secretary General of the Democratic Union Party, namely Indonesia, which witness is incriminating Sri Vasuki who is not the actual name because her real name is Sri Sabudiarti Wedar. He was sent to Bulgaria in 1963 by in SEMARANG. Over the witness asked the arrival from YLBHI, among others Bang Adnan Nasution, the brother of Pitcher Ruhut Pangaribuan, as well as new findings about Assegaf Pack it, and they later prepared a review 29 pending the ruling of the High Court and Supreme Court Verdict Jakarta. The result was the second such verdict rejecting the application for witnesses to be exempt from all charges, and in April 1997, the ruling of the Supreme Court rejected the appeal. as a result, on May 5, the witness went to jail; At the time the witnesses in prison, Bang the jars and coauthors of the YLBHI brought the concept of a review. But at that time it was also conveyed to the witness that it is there, no matter how novum in accordance with brother Saleh Abdullah, then send someone to leave for Germany to find out who exactly the name Sri Vasuki. But the bump to the offices of Berlin's population does not want to provide a description of the passport held by Sri Vasuki or Sri Wedar Sabudiarti. So it's no fun to witness. But that's not the real reason we don't so ask the review but rather, first, because it's happening sort of bickering at YLBHI, where then breaks into YLBHI and PBHI, namely the Association of legal aid and human rights of Indonesia. Then, Bang Pitcher told the witness that it is better not to have asked questions because Mr. Soeharto is still in power, later if asked most is rejected again. Therefore a witness to help file a review; New on 25 May 1998, a few days after Mr. Soeharto resigned the witnesses got amnesty and abolition of President Habibie through the Kepres number 80 in 1998. The amnesty granted to Germany already litigated, are abolition aimed at things subversive who at the time was not yet given up, tatapi on 25 May 1998 the Tribunal Judges PN South Jakarta open hearings and then postponed the trial by reason of the witness get abolition with the description that the hearing will be opened again after there was a further announcement; Continue the matter in 2000, Germany witness submits a review with novum distinction signature of witness Sri Vasuki or Sri Wedar Sabudiarti that because of kekhilafan the judge, witness Sri Vasuki or Sri Sabudiarti Wedar never identified who he actually is? His passport how? Upon review, on 8 May 2000 the Supreme Court made a decision that judge again and claimed the defendant Dr. IR. Sri Bintang Pamungkas is not proven legally and convincingly guilty of committing the crime didakwakan him.


30 If a witness filed a review first, correct as suggested by Bang Pitcher likely was rejected; The second thing is something subversive, where witnesses are free with abolition, so PN South Jakarta postpones trial and will be opened again after further announcements there. The witness then filed a request or application to the Chairman of the South Jakarta District Court and also Prosecutor. After the session reopened on November 30, 2000, was Antisubversif PNPS law number 11 Year 1963 has been revoked by law in 1999 in the Pak Habibie. So on November 30, 2000, PN South Jakarta decided witnesses free from charges of committing subversive acts, whether or not there is a decision the President about abolition, the matter is no longer there because the legislation already repealed Antisubversinya; The third is something that is a bit difficult, namely dismissal over witnesses, that the witness was fired a week after entering the LP Cipinang, in accordance with the laws of civil servants that they are then exposed to criminal and had the force of law should still be fired disrespect; Over this witness filed suit to PTUN PTUN refused to decide the lawsuit and witnesses. But when a witness appeal to PT. TUN, who was led by Mr. Benyamin Mangkudilaga, there's been a presidential decree about the liberation of the witness in the amnesty and abolition, the witness answered the lawsuit. Therefore, the witness thought that dismissal was later removed, and witnesses began teaching again, but salaries don't go down, so the Department of mechanical engineering, Faculty of engineering, University of Indonesia decided to give voluntary honorarium to the witnesses. Then in December the Minister Juwono Sudarsono Decision appears, which gives the Minister or Mendiknas reactivation to the witnesses. However, in diktumnya there is a fallacy, where the activation of it starting in May 1998. But if the dismissal was removed as President, also reinforced by Benjamin Mangkudilaga in PTUN, then should the witness be enabled from May 1997, that at the time of the dismissal of the case. Regarding these witnesses to write to Mr. Juwono but not answered; As time went on it turned out that the decision of Mr. Juwono did not run, salaries not paid witnesses. New in 2002, after 31 witnesses reported the matter to the Inter-Parliamentary Union in Geneva, October 2002, the salaries of the witnesses came out and got the rapel four years; Then associated with the promotion of the witness, the witness filed suit to PTUN, and won a lawsuit witness who subsequently reinforced by PT. TUN and likewise with the ruling of the Supreme Court won the witnesses. But the verdict did not mention about the promotion one year's salary and witnesses who have not been paid, the verdict of the Supreme Court just reactivate the witness; The impending retirement of the witness, that is July 1, 2010, Mr. Muhammad delivered a letter to Noah NATURISTS (Bkn) request technical considerations about the promotion of the witness and the NATURISTS responded that promotion of witnesses since 1992 cannot be considered by reason of, among others, the promotion should be filed in April or October; Over this joint witness Attorney Assegaf responded by suing NATURISTS NATURISTS Ruling held that because the question Mendiknas is a resistance. But the witness was defeated by PTUN, and PT TUN, and is now being filed to the Supreme Court of Cassation; The conclusion is that the effort of seeking justice is indeed a difficult effort in Indonesia. Therefore, according to witnesses, did not seek justice ever have to break up, similarly happens to the other parties; 2. Dr. Jonathan Pakpahan, S.H. in 1998, when the Reformation took place, the witness status as prisoners and inmates at Cipinang Correctional facility in case of a labor rally in Medan in 1994. Whereas at the time of the rally took place, witnesses are in custody in Semarang, but witnesses blamed for structural liability as Chairman of the SBSI. A witness by the State Court of Medan sentenced to three years. Witness appeal and appeal the verdict adds to the punishment a witness to four years in prison. A witness filed a Cassation to the Supreme Court and the Supreme Court's verdict freeing the witness with the rally reason is the responsibility of individual and direct. Upon the verdict of the Supreme Court, the public prosecutor submits a review. Review the public prosecutor made headlines around the world because according to the CODE of CRIMINAL PROCEDURE Prosecutors prohibited conduct


32 review, but it turns out that the prosecutor submits a review. The verdict review punishing witnesses four years in prison; Upon the verdict review asked the Prosecutor to punish such witnesses to four years in prison, the next witness submits a review over the verdict review presented by the Prosecutor. Witness submits a review with the argument that according to the CODE of CRIMINAL PROCEDURE that the party authorized to submit review convicted person or his family, while the Prosecutor does not have the right to apply for review, so that at the time the review took place twice. Witness submits a review because witnesses have yet to use those rights. Examination review hearing filed by the witness are processed by the Supreme Court that the trial around the month of May 2008; Additionally, witnesses also experienced cases with claims subversib on July 27, 1996, event DESIGN, famous for its 27 grey. At the time, the witness was picked up by officers from the Attorney General's Office and witnesses detained with the assertion that subversib coupled to perform actions with the writings of witness with the title "State portrait of Indonesia". The book contains about the proposed existence of reform in Indonesia. The words "reform" that is in the book is considered to be subversib. At the time of the subversib case will be processed by Prosecutor witnessed the events of the Reformation May 1998; The third case ever experienced by the witness is retired-retired soldiers who joined in force 45 do seminars. The seminar invited witnesses were officially implemented using illumination lamps and use permission. Approximately sepulih minutes witnesses speak, the event was halted and witnesses were arrested. The next witness was arrested in Semarang for 21 days with the reason disturbed the Government of Indonesia. The incident occurred in 1998 (going reform movement). The witness was released from Cipinang Penitentiary with Kepres published by President Habibie over the reforms. When the witness was released from prison, then a Subversib criminal charges attributed to witness with accusations against the Government in Semarang stopped; Witnesses are exempt from the three demands rather than for the sake of Justice, but due to the demands of the reform;

33 Witness read the provisions of the CODE of CRIMINAL PROCEDURE provided for in that there is a weakness that is the review is only done once, so that one convicted person who has submitted a review back then had closed to propose a review again. Should any new facts that the review can be filed again. It is thus in line with justice as set forth in article 1 paragraph (3), article 28D Constitution. Families of the victims that his interests have been represented by Attorney cannot ask a review because a review simply is the right of the convicted person or his family, so that the rights of victims ' families to file review covered; EXPERT APPLICANTS 1. Prof. Dr. Yusril Ihza Mahendra. The Applicant submits an application to the Court to examine the norms of article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) that reads "request for Review of a verdict can only be done one time only" against the norms of the Constitution as provided for in article 1 paragraph (3), article 24 paragraph (1), article 28A, article 28C paragraph (1) and section 28D subsection (1) of the Constitution of the State in 1945. The legislation norms as formulated in article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE were also found in two other laws, namely the law on the powers of the judiciary and the law on the Supreme Court. Considering both the final Act contains provisions on the review (PK) that applies to all kinds of things on the Court, according to the petition filed by the Applicant is specific, i.e. PK application specifically to criminal cases only. Therefore, if this application is granted by the Court, then it is permissible to PK appealed more than once, apply only to criminal cases only, not for these kinds of things; Before you go further to explain the constitutionality of norms which appealed to duji, experts like to describe the first, whether the petition is now ne bis in idem or not if it is linked to a previous matter, namely the matter number 16/PUU-VIII/2010. After comparing the second petition, experts conclude that the application for this now in addition to using some of the same article of the norms, but


34 also propose norms different article, namely Article 28A and section 28C subsection (1) that is not done in previous solicitations, as well as proposing the constitutional argument is different from the previous application. In accordance with Article 60 paragraph (2) the Constitutional Court law juncto Rule related constitutional court testing laws, then by considering the existence of norms of different konsititusi as well as different constitutional arguments, then things now this cannot be described as purely ne bis in idem; The norm of article 1 paragraph (3) of the Constitution of 1945 which confirmed that "Indonesia is a country of laws", is the philosophical basis of pouring bemegara us as set forth in the preamble of the Constitution. In the opening, we find the words "humanitarian and perikeadilan", "a fair and prosperous", "just and civilized" as well as the words "social justice" for all the people of Indonesia. An expert on the philosophy of Islamic law from the 13th century, Ibn Hazm said in Al Muhalla that core of Shariah (law) is justice. Therefore, according to him, the legal norms that are contrary to the norms of Justice as a moral and philosophical norms, does not deserve to be considered as a binding legal norms. There are many definitions of fair. In this opportunity, experts cite the words of Muhammad, the Prophet Muhammad Peace and blessings, that answers the question a sahabal about what is fair. The Prophet replied: "it's Fair, berlkan to someone what is the right, and disconnect from someone what not being right"; A question for the experts, if people are convicted by the ruling had the force of law which is fixed based on the evidence presented in the trial buktl at the time of the trial, but later found the new evidence when it has not been revealed, so that if the evidence Was presented in the trial, then the judge will break the corresponding to the verdict, it beats the person punished? Hadith attributed to the Prophet, the person is entitled to be released, because freedom is a right, and the acquittal was justice. Indeed in principle known "litest finiri oportet", i.e., any matter there should be akhlmya. But the question is, will a matter to an end simply because human beings have to end things, whereas 35 we realize and know seriously that end of things it is a lack of a real adrlan? Norms formulated by Article 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE only allow PK only one time, in the context of criminal cases, on my frugal is contrary to the principle of fairness that is so high esteem not only as a consequence of the country's basic law. If it found the existence of the novum who truly convincing, then why do we have to maintain the norm which States that PK is valid only one time in criminal cases. Similarly, if only one PK this time associated with the norm of article 24 paragraph (1) of the Constitution of 1945. Judicial power is an independent power to conduct trials in order to enforce the law and justice; The purpose of the judiciary in the end is to enforce justice itself. Whether the powers of the independent judiciary, should be dipasung by the norm of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE, so that the Court cannot exercise its function of realizing justice? Someone who dijatuhl a life sentence or sentenced to death-before being executed-should dipasung his right to obtain justice, with the discovery of new novum, just because PK can be one time only? So too is the right to improve the quality of life, as provided for in Article 28A nornia Constitution 1945, will terujud if someone was imprisoned by injustice; The norm of article 28D paragraph (1) of the Constitution clearly contains a guarantee of legal certainty the adll for everyone. Throughout history, philosophy of law experts argue ceaselessly about legal certainty and fairness. I would argue that fairness and certainty of the law must be walked linearly, there is no legal certainty without justice, and there will never be justice without legal certainty, in the context of our positive law, legal certainty more dealing with the legal norms of the event. That PK should only be a one time is a legal certainty that is regulated in section 283 subsection (3) of the CODE of CRIMINAL PROCEDURE. While justice, deals with material legal norms, whether a verdict was fair or not if associated with an tools evidence revealed dipersldangan. Material legal norms containing the spirit of Justice, but the legal norms of the show containing legal certainty, but ignore the fundamental justice;


36 expert Then recalled the Constitutional Court Verdict Number 69/PUU-X/2012, when Brother Pariin Riduansyah asked the Court of Justice confirms the legal certainty which is conceived by article 197 paragraph (1) the letter k lists the commands that without the CODE of CRIMINAL PROCEDURE in article 197 paragraph (1) of the CODE of CRIMINAL PROCEDURE that resulted in the ruling annulled by law, is a legal certainty that is (etteriljk referred to in Section 197 CRIMINAL PROCEDURE CODE, but the court assesses legal certainty in article 197 CRIMINAL PROCEDURE CODE were contrary to substantive justice that should be noteworthy in the proceeding criminal, and hence the Court, with its own mengadiii cancel the terms of the letter k in article 197 paragraph (2) of the CODE of CRIMINAL PROCEDURE. The Court seems to want to assert that legal certainty in the law, must be walked linearly with justice in the legal material; Consideration of case law associated with the Number 69/PUU-X/2012, then the question that contains the similarity can ask: Isn't the norm of article 283 subsection (3) of the CODE of CRIMINAL PROCEDURE containing the certainty of the law, should we let it stay, while justice will probably be realized by hear back something that had the force of law that remain will be hampered, only by reason of legal certainty? Experts argue, the material legal norms solely provide the certainty of the law must be disejalankan linearly with the laws of material containing the nature of Justice. Antasari Azhar's brother who became one of the applicants in this matter is present in concrete human tongah us. The Court ruling over him, seen from the angle of legal certainty, it is definitely. He's been imprisoned 18 years by 3 times the Court ruling, and PK 1 time by the Supreme Court. But millions of people outside the Court say that Antasari Azhar was not punished by Justice, but rather with the terrors. Will we let Antasari Azhar Crouch 18 years in prison, even though he had a novum to brought back to trial, but justice has closed the door on behalf of legal certainty? 2. Dr. Irmanputra Sidin, S.H.MH In Indonesia's attempt in the phenomenon that is increasingly informative, this appears to be happening is thus increasingly primitive thinking menghegemoni governance of State life, especially concerning the relationship of the country with 37 freedom of citizens. Increasingly growing perception that woken up increasingly fraught State prison in Indonesia, the Indonesia country sukseslah in the exercise of their functions. In fact, unless a country increasingly full of his prison inmates, the country's gagallah in the exercise of their functions. Therefore, arguing that the deterrent effect of prison and everyone should go to jail dinistakan, even before entering the jail should be humiliated is indeed a form of laziness country improve its citizens. Real country taking shortcuts with capitalization absorption of anger (General) and on behalf of penjeraan. Like a mother on the market that invites her still a toddler and his son always fuss and "ngerecokin", to stop the child to be cranky and ngerecokin, then the mencubitnya of the mother, even if it needs to be hit with the rough up to cry. Hope is awakened, let the child wary and scared to repeat his actions. The result that happened instead of fear, but that happened to show up the seeds of resistance and the nature of the violence on the child, can even so pops up a grudge; Appeared also the perception that when someone becomes a correctional inmates in the status of the convicted person, then it seems the real protection of the Constitution in 1945 to the citizens of the country. Whereas the fundamental agreement in the nation and state that the purpose of establishing the State unity of Indonesia is for the State to protect all the Nations and all the spilled blood of Indonesia. Therefore, an already terminated the verdict of guilty and already has the force of law and terpidananya are already behind bars, then the protection of the Constitution will not be apart of him. That's our commitment, that is the commitment of the whole citizens when we agreed to form a unitary State of the Republic of Indonesia. Therefore, the law which resulted in revoking freedom, even deprive citizens of real life is in a sense remedium ultimium if State already unable to or even desperate, lazy repair or restoring the equilibrium of their citizens. Departing from the thought, that countries that ardently accommodate penjeraan anger and then enforcing the law as it truly is a form of laziness of a country to improve the lives of its citizens;


38 the real Power should not be facilitated to use legal institution which resulted in tercabutnya the freedom of citizens is the most fundamental rights. The principle of konstitusionalnya is when the State or power wants to deprive the freedom of the citizen, then it should be strictly limited. However, if a citizen wanted to fight for his freedom back, then the State should not be restrictive. This is one implementation of that State for the people, not people for the country; In the context of this country should not be left alone with his tiredness to late or idled, opening the proposal changes or review a product of his reign. Not enough arguing that for the sake of legal certainty, in order not to continuing litigation, or for the sake of prudence to take the verdict so the product of power that was made by the State cannot be requested for review again, even if it can, the proposed review just for once. This problem is indeed not strictly related to the principle of legal certainty, but rather to the distortif principle of passive stelsel, namely country became lazy, don't want to busy to take care of something because of his business or maybe a pile of things that many, tired or maybe otoritarian to brooding or correct her product, much less in fact simply reflect new circumstances or reasons would be from a verdict that's been made. State masked as that country must be right and will continue to be true because this is legal certainty. Of course, it is this construction that opposed the principle of the constitutionality of real slowly has been developed by the forum Court more of the last decade; The principle of lites finiri oportet that every lawsuit that there should be an end. The principle when attached on the Constitution, then that principle of legal fiction as all decision making, the making of regulations as other power products, there is also the end. But in fact, everything can be reviewed or requested changes again. Therefore, this principle should not be making beds or countries reluctant to communicate product will power it generates. When in the process of criminal law, the ruling of the Supreme Court of Cassation was out, then the principle of legal certainty is already owned by the State. The verdict was already turned into gewijsde, i.e. have the force remains therefore already 39 can be executed and that person already lawfully convicted and perfected the principle of presumption of innocence, and this is where the end of the matter. However, it does not mean when it appears the petition for review more than once on the basis of a rationale, or the new circumstances, or other reasons that agreed in the legislation to review the verdict, could be eroded legal certainty. It does not relate to the process of review does not make the innocent people who have become to be considered innocent and the corresponding execution cannot be started or continued and that person should get out of prisons; Indonesia's attempt in the system that the holders of power was created to run its functions in the framework of the achievement of the objectives of the State, namely protecting all Nations and all the spilled blood. The Constitution of 1945 have State agencies the President as the holder of the instrument of government power or the product of his power is his decision and regulation. The Constitution of 1945 also have the HOUSE that holds the power of the formation of laws that instrument or product of his rule binds all the people, that is the law, even produced together with other State institutions, namely the President and DPD. Similarly, we have the power of Justice, namely the MK and MA that instrument or product of his power in the form of the verdict; All products of power, i.e., decisions, regulations, and a verdicts solely serve to protect all the Nations and all the spilled blood, promote the general welfare. In the framework of the achievement of that goal, then when a product is out of power, then the product is not immortal by holding fast to the principle of all things there must be the end. All products of power it is open for changes requested for the House and the President or a review to the Supreme Court for a criminal cases, including the testing back to the Constitutional Court. Therefore, the verdict, decision, and the rules are all the same species of the genus named products or instruments of the holders of power. The review has the same species, i.e. testing again or change from a genus named State correction of an


40 the verdict, decision, and laws, even the Constitution of 1945; Article 24C paragraph (1) of the 1945 Constitution states that the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution of 1945, severing of disputes the State agencies the Authority those powers provided by the Constitution of 1945, disconnect the dissolution of political parties, and hang up disputes about election results. The phrase in first instance judgment and final award is final expressive means that the ruling of the Constitutional Court cannot be appealed the test back for any reason. One of the underlying theory when the phrase is made is for the sake of legal certainty over the Court ruling not to do the test over and over again with no end and that will surely be very boring. By karenanyalah, Act No. 24 of 2003 about the Constitutional Court affirmed in section 60 that the charge against the material, paragraph, chapter and/or section in the legislation that has been tested cannot be appealed the test again. This article expresses the logic of legal certainty will be the ruling of the Constitutional Court. That to the materials, charge, verse, chapter and/or section in the legislation that has been tested cannot be petitioned re-testing given the ruling of the Constitutional Court according to the Constitution of 1945 was the first and last court that an award is final. However, the reality of the doctrine of Constitutional Court cannot make locked themselves to not open the application back up material, charge, verse, chapter and/or section in the legislation that has been diujinya. That there are different reasons or there are circumstances different from the process of taking the previous verdict. Therefore, the provisions of the Constitution of 1945 and law the Constitutional Court interpreted again in the regulations of the Constitutional Court number 6 FMD in 2005 about the guidelines of Beracara in the case of testing the law mentions that in spite of the foregoing, the application for testing the charge against legislation, subsection, article, and/or the same section with something that is never disconnected by the Court can be petitioned testing back with terms of constitutionality is the reason of the petition in question is different.

41 Attempts the Constitutional Court open space to revisit the truth which he had made of an object named test of case law, it was opened on and later became an accepted practice. The HOUSE of REPRESENTATIVES and the President agreed to include it in the law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court. Thus the Constitutional Court law changes, in article 60 lists that the provision against material, charge, verse, chapter and/or section in the legislation that has been tested, the test cannot be appealed again. Can be excluded if material charge in the Constitution of the Republic of Indonesia in 1945, which provided the basis of the test is different. Test conditions back over a bill that had already been decided upon the Constitutional Court can be lodged again without restriction only once, but as long as there is a reason, the State or the basic testing. This has become an accepted constitutional law that the powers of the judiciary must not lock the door meetings to reflect the truth that has been created in an award. This is not violating the principle of certainty of law, but merely that the principle of the constitutionality of the State will continue to be open dialectic truth to correct product to power itself, not other than purely because in order to protect the whole nation of Indonesia, and all the blood spilled Indonesia become a destination country in the preamble of the Constitution of 1945; Armed with the above constitutional law, when a country must be always open to provide space to citizens to review a product, then the system's attempt in principle all products can be appealed powers change or review more than once. All perpetrators of power gives birth to a product called the verdict, decision, Act, even the Constitution of 1945. The President issued a decree or a regulation, citizens can bermohon change proposal, decision, or rule it more than once, either directly or through elected representatives in the HOUSE'S constitutional rights. There are no rules that hinder the constitutional rights of the citizens of the country. That citizens or members of the HOUSE of REPRESENTATIVES can only ask for 1 time to the President to review his product in fact binds all citizens.


42 the HOUSE holder power formation of legislation that is a representation of the whole people of Indonesia is producing legislation, even alongside the President and the DPD, and binds all citizens also have never barred or a group of citizens or restrict the constitutional rights of individual members of Parliament or DPD to file rights draft law suggested changes to the legislation only once. Whereas the legislation already binds all citizens, even not necessarily a majority reject the enforceability of the legislation. Not to mention the MPR is the incarnation of keparipurnaan people and an area producing a Constitution, never limited that suggested changes to the Constitution by the citizens or members of the MPR only once, even though the Constitution is the Supreme Law of the country and become citizens in a country's social contract. That is, the entire pemengang authority or the perpetrator is never locked citizen rejected a request to revisit his power products ranging from a decision, ruling, legislation, to the Constitution of 1945 though only once. If all of that in retrospect, why the organs of power such as the DPR, DPD, President, Constitutional Court, even the ASSEMBLY never be restricted so that citizens or his Deputy may only once file a proposal back testing changes or product review, because his philosophy that the holder of or perpetrators of that power is present to the achievement of the objectives of the State, namely protecting all Nations and all the spilled blood, promote the general welfare; The institution of the Supreme Court actually present within the framework of protecting all nations of Indonesia and all the spilled blood of Indonesia. The debate opened the space review the Supreme Court's ruling in the field of criminal law more than once is not mendestruksi legal certainty or to make the perpetrators of that power being careless in carrying out his powers. It became too much because it will be alleged that the President, HOUSE of REPRESENTATIVES, DPD, MK, even more careless than MPR MA, and they do not provide legal certainty because citizens or their representatives can apply changes to the product of its power more than once; In criminal law, produced the Supreme Court can revoke the most fundamental rights of the citizen are restricted to petition a review of 43 her back just for once as stated in article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure, it will create an anomaly, because among other powers, the products can be requested changes, can be requested testing or review more than once. This is logically put that the verdict of the Supreme Court in the field of criminal law more "exceptional" even above than the Constitution, considering all the institution's Constitution applies in the holders of power, including the CONSTITUTIONAL COURT and the MPR, everything opened up citizens for change bermohon revisiting top or changes to the product more than once; The concern is if the country itself does not guarantee equal treatment between the product State institutions, fellow then citizens also worried that countries would not necessarily guarantee equal treatment for its citizens because it is among the State agencies that are products of powers of the PARLIAMENT, President, DPD, even the Constitutional Court, and the MPR can be reviewed, but MA get different treatment or privilege will be of its products. As a side note, even the scope of the Supreme Court's ruling in the field of criminal law is precisely part of micro implementation legislation the HOUSE results, much less the Constitution produced by the Constitutional Court or the MPR that just the opposite may be submitted or hindsight changes more than once. When Article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE were declared not binding then should review more than once, this is not a mendestruksi legal certainty because of legal certainty in fact belongs to the citizens, not his power. When the ruling of the Supreme Court is already inkracht, then legal certainty already terlekatkan. Similarly, with products from the HOUSE of REPRESENTATIVES and the President of such a legislation, then when it was enacted, then that legislation already in force and terlekatkan legal certainty would be keberlakuannya, but still can be requested changes more than once. Similarly, the product of decisions or regulations, when the President already declared valid, then the legal certainty that is already attached to the logic do not lose all of his legal certainty when citizens can request changes to the test again or review on products that power more than once. Article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE limits the demand for review only once, while other power products such as the entire verdict, judgment, law, even


44 of the Constitution, the President of production, DPR, DPD, the Constitutional Court, to the ASSEMBLY there are no restrictions for application testing changes back aka review top products, indeed mendestruksi the principle of constitutionality; Restrictions on the application for reconsideration only once at odds with the opening of the Constitution states that the State protect Nations Indonesia and all the spilled blood of Indonesia because the whole power with all the products of his power comes to the achievement of these goals, that any time the country should open themselves to proofread all the products of his power; 3. Dr. Chudry Sitompul, S.H., MH the purpose of the law of criminal procedure is to seek the truth of material (objective truth). Departing from the purpose of the criminal procedure law and all legal provisions of criminal procedure is, of course, in order to find the truth of the material and gives justice to the suspects, or the defendant, as well as to the victims. Associated with article 24 Constitution already amended the judicial power that the goal was to uphold truth and justice. So, the second the norm associated then the truth of the material was in order to find the certainty of law and justice; In that regard, article 263 CODE of CRIMINAL PROCEDURE requires that proposed for review against the ruling had the force of law which have the remain, there are three, namely, first, the existence of the novum (new evidence) during in the trial never disclosed; Second, it is because there are some decisions have the force of law, are contrary to each other because of the excuse of the Court; and third, it is because there is a kekhilafan, or a real fallacy of judges; In this context, what is required is not to be filed the petition for review more than once? Is it because the terms or third third one of these terms? That before the promulgation of CODE of CRIMINAL PROCEDURE, the legislation is essentially the Power of Justice, law number 14 of 1970 which in law number 14 of 1970 that the requirement for a review is not required, is it syarat-syaratnya to be submitted? and 45 do PK it is awarded only once or twice, and so on? However, Act No. 14 of 1970 only determined to act, that means the implementation of legislation; In this context, according to experts who mean PK cannot be appealed more than once, if the requirement was due to the conflict between the ruling against each other or kekhilafan judges. While the novum, depending on the circumstances, namely in his novum newly discovered later in the day after a ruling of the PK PK Verdict, for example the first proposed because not a novum, that is because there is real confusion then it really unfair if the new novum can not be used as legal documents in order to search for objective truth; In this context, the Supreme Court Circulars No. 10 of 2009 allow review filed back when there were two verdicts PK conflicting with one another. According to experts, the Supreme Court Circulars No. 10 of 2009 are not appropriate or not in line with the CODE of CRIMINAL PROCEDURE Article 268, as well as with the Judicial Authority Law Number 48 in 2009 or the Supreme Court Act No. 3 of 2009 of which stated: only allowed only one time. Thus meaning that the Supreme Court had a breakthrough that when in reality there are two review verdict in opposition to each other, either in a fellow criminal, or civil litigation with a criminal, or vice versa, as well as with TUN. Based on the foregoing, the expert argued a review may be submitted more than once because there was already a groundbreaking Supreme Court provided for in no. 10 of 2009 SEMA; So in conclusion, in order to achieve the objective truth and uphold justice, according to experts in criminal cases in novum was found later in the day or after a ruling of the PK then then can be given; 4. Prof. Em. Romli Atmasasmita, S.H., LL. M. Request review (PK) is not aimed at finding legal certainty but rather a legal means to obtain justice. The creation of the law on criminal procedure law is not without reason putting PK as an extraordinary remedy under title (chapter


46 XVIII) an EXTRAORDINARY REMEDY and the Council's examination of the judiciary rather than the true fourth PK; Experts confirmed that the petition is not an obligation, but rather at the rights of the convicted person throughout his life undergoing criminal correctional facility even if convicted person is at the end of the live pidananya. The extraordinary nature of the PK implied on three reasons: request as contained in Section 263 subsection (2) of LAW No. 8 of 1981 on the law of criminal procedure. The third reason PK contains factual reasons solely the point if found the fact of the existence of novum, or there are facts there are conflicting verdicts, or there are facts there is real confusion from the Tribunal judges. The third reason is not factual reasons to achieve legal certainty but rather to achieve the goals of Justice, because with the objective of legal certainty been fulfilled (completed) instantly fall of court rulings that have acquired legal force anyway. The Court ruling which has acquired permanent legal force are ipso iure legal certainty; Experts suggested that the third reason request PK as noted in provision of article 263 para (2) of the law of criminal procedure of Indonesia can be reviewed aspects of philosophical, juridical and sociological aspects aspect. Three reasons to apply for PK, PK reason first, third in section 263 subsection (1) letter a, letter b and the letter c, indicating that the third reason mentioned should not be seen or interpreted from legalistic optical solely sourced on the teaching of legal positivism but rather should be understood from the aspects of sociological jurisprudence (Pounds) and pragmatic legal realism (Ehrlich) so that the existence of provisions of article 263 of ACT 8/1981 reflect values that are alive and thriving in the community based on the Pancasila Indonesia. The third reason PK is a means of law to change the fate of the convicted person and is an attempt to "glorify" the dignity the dignity of each other though in the status of the convicted person. The existence of the PK in the criminal justice system matches the value of Justice embraced Pancasila and the 1945 CONSTITUTION. Second, the third reason request PK in section 263 subsection (1) letter a, letter b, letter c of law and criminal procedure, reflect that an individual in the view of philosophy of life Pancasila is an integral part of the community so as to put a convicted person separately from his life with the surrounding communities including 47 keluargannya isn't the only penance which should be very involved. but there are still other ways of administering penance without having to cause alienation of a convicted person both physically and psychological and social; Listen to the deeper meaning of the provisions of article 263 subsection (1) of the law of criminal procedure sebagaimasna that the existence of the third reason aforesaid PK request is appropriate and suitable if legal experts looked at each of the provisions of the legislation which was formed and was born in the life of the nation Indonesia more to glorify the values (values) any provision of the Act rather than just resting on just one aspect that is purely normative aspects. There are aspects of the normative aspects behind the values (values) view of human life that is imbued by Pancasila Indonesia as a nation's life philosophy of Indonesia. The values in question are contained in a norm is more mainstream than with a purely grammatical interpretation without understanding it through historical interpretation or teleologis. To interpret the provisions of a statute should also be understood in the context of tempus and "gebundeheit situation" affecting the legislation have intended. The background of the set ACT 8/1981 is to change the way the nation's point of view this against someone who has been placed in the criminal justice system both as a suspect, the accused or convicted person, no longer as objects of law enforcement apparatus treatment but should have as a subject of the criminal justice system. According to experts, should change the way of view against the convicted person must be kept consistent since the investigation up to the overthrow of the Court ruling which has acquired permanent legal force even for a convicted person undergoing criminal correctional facility; Understanding the values that animates the provisions of the legislation in the implementation of legislation in Indonesia including and not limited to the provisions of the criminal procedure law of Indonesia, that's what experts call Integrative Theory of law with which is a reconstruction of the view of theory of law and Legal theory of Progressive Development of the law in the works of the reality of life of the community; In understanding the meaning of the third reason request PK needed a new view of ber-State (Satjipto, 2009). The Meaning Of State Law


48 (RECHT STAAT) may not again be seen solely from the teachings of Pure Law (REINE RECHTSLEHRE) because the words RECHT, political structure be terakomodasi into State law, so there are no longer "absolute separation" between law and politics. The position of the fittings in the State Constitution and Changes in the field of law is increasingly clear in the Law reflects that Indonesia is not free from political influence even "ketidakbebasannya" exceed the developed countries though. Ketidakbebasan of the influence of politics in Indonesia have proven recruitment process to fill the position and the Office of the Attorney General of the Office of Minister-level, and the recruitment of Judges and the Office Assistant through the fit and proper test agency representatives; Events happening at Antasari Azhar, and probably many more things; so was a result of "lack of bebasannya" law of political influence (read, power). In this context, Experts cite view Satjipto Rahardjo (RIP.) as follows: "the State of the law of the Republic of Indonesia is a country with a conscience or a country that has a concern (a state with conscience and compassion). State law of Indonesia is not a State that just stop at a public function organise various task, not a country "by job description", but rather a country that wants to embody the moral contained in it. State law of Indonesia is more of a country "by moral design". Furthermore, Satjipto, describes the meaning of concern such as the conscience which is based on the essence of the work that animates its implementation, namely the passion (compassion), empathy, dedication, commitment, honesty and courage; In the context of the meaning of caring in a Legal State of RI event then the case of Antasari Azhar, is supposed to be seen and understood that those concerned were the view of the formal legal State, not in the context of the concept of State of Law Bernurani. The core concern and conscience, has long been forgotten or ignored by the elite national leadership including the State apparatus and the apparatus of law; In this context, as a comparison, the Experts cited opinions, Jeffrey Sachs, a Special Advisor to the Secretary-General of the United Nations, Ban Ki-Moon, about the moral values of American society. Sachs says as follows: 49 "at the root of America's economic crisis lies a moral crisis: the decline of civic virtue among America's political and economic elite." Next Sachs says that "Too many, America's elite ... have abandoned a commitment to social responsibility. They chase wealth and power, the rest of society be damned ". In the context of the statement regarding the crisis of morality Sachs American society, associated with the relationship between Law and power in the Country the law of Indonesia, has many laws that prove that, in the process of law enforcement have occurred a crisis just and humanitarian values of civilised so that many of the victims had been wrong to seize and hold it even became a victim of wrong judgment, as the case of Sengkon and Karta, Jonathan Pakpahan case , Prita Mulyasari, Sri Bintang Pamungkas and included the case of Antasari Azhar who is now as the applicant. Errors are not a fallacy, which is deliberately done legal apparatus including judges in judicial practice in Indonesia proves that a crisis of conscience and concern (Satjipto) as the Indonesia human Pancasilais has occurred even in systemic and widespread among the elite of the Executive, legislative and judicial branches. The crisis-a crisis occurs also due to elite-elite in question has not been fully understanding that the State law should by the founder of the State of INDONESIA, formed on the basis of "moral design". In addition, the first priority for Indonesia elite gained the power above the suffering of victims either individually or bulk. Even the deepest feeling of piercing on the conscience as a man conditioned Pancasila is because most of them contended, is not part of the people and forget the place where they are based; In the context of the petition before the Tribunal: Justice of the Constitution this is presumably the view of the Expert as described above can be a consideration of the Assembly of experts glorifies. Experts believe that the Constitution is a Judge of the Tribunal in addition to jurist, statesman also tied to not just the torso Constitution but is also the most important values (VALUES) that are embedded, implicit and explicit in the Pancasila as stated in the Preamble of 1945; Expert's view that the core of the filing in the case at Number 34/PUU-XI/2013 and number 21/PUU-XI/2013 is not a remedy for


50 find legal certainty but rather a legal attempt to find justice. Legal efforts to find out the truth with the objective of fulfilling anti-materiel legal certainty has been completed with the Court ruling which has acquired permanent legal force and the placement of the legal status of the accused being convicted person. Expert statements in the above command with a reinforced Legal criminal procedure ACT which asserts that, demand for PK do not suspend or terminate the execution of the verdict (article 268 paragraph 1 of LAW 8/1981 clear in it is contained the meaning of legal certainty; In this case, the legal efforts to find justice thus is not finished and rested on the Court ruling which has had legal force anyway because justice is eternal and not dark by time and place; very different fundamentally with the legal certainty which can be limited by a certain time and place. The efforts of common LAW 8/1981, placing the PK as an extraordinary remedy, is appropriate and relevant to the purpose of finding justice would not be exact but if meant to achieve legal certainty. Even the experts say that, there is "a contradictio in terminis" between objectives and how to achieve that goal, so ipso iure provisions of article 268 subsection (3) that is contrary to the values that are contained in the provisions of article 263 as an extraordinary Remedy. Contrast on the difference meaning of PK as an attempt to find justice is not a legal certainty, it can be concluded that the provisions of article 268, paragraph (3) of the criminal procedure law of Indonesia, the post-war Constitution, contrary to the Changes with the provision of article 28 Article 28 A, D subsection (1), article 28I UUD 1945; The position of the provisions of article 268 paragraph (3) of the law of criminal procedure from the viewpoint of Integrative Theory of law, are clearly contrary to the moral values of Pancasila such that raises keragu—raguan about the legitimacy of the sound of the provisions of article 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE confirms that the "request for review of a verdict can only be done one time only". View of integrative theory of law further assert that, legal certainty is not synonymous with justice and fairness not only retrieved and found to be in the Court ruling but rather on the parties to the dispute or to the victim and the perpetrator of a criminal offence;

True 51 in view of Integrative Theory of law, there is a lack of fairness in the concrete an event based on the applicable law is not a "monopoly" of the country and its furnishings, but there are also the RIGHTS of the victim and Perpetrator to determine; The legal position of the defendant and the Prosecutor representing the State in the system of criminal justice post-Enlightenment (Enlightment) after the mid-19th century, is a "tripartite" recognized universally have the same legal position in advance of the law. In this context, then the Justice who became one of the purposes in the criminal justice process is not only determined by the Prosecutor and the judge, but also the rights of the victim and perpetrator to determine; Application of case number: PK 21/PUU-XI/2013, in which Nasruddin Zulkarnaen as Andi sdr Applicant I, is a new and specific because the Applicant was the victim's family, and presumably can be used as a "novum". The statement can be viewed as the Novum expressly stated in reasons demand PK as follows: "that the applicant was a criminal act of murder victims ' families plan against alm. Andi Nasrudidin Zulkarnain and Appellant II is a member of the family of the victim Advocacy Team. The Claimant Antasari Azhar was unsure as the perpetrator of a criminal act involved didakwakan ". A State in which the applicant is I PK in the case Number 21/PUU-XI/2013, as representative victim of the crime of murder and also the submission of the request made by the applicant: I, Antasari Azhar in Number 34/PUU-XI/2013, a new State if delivered as a third-party intervention, at the beginning of the trial the defendants with murder docket the claimant Antasari Azhar, then the Court ruling against the murder verdict would constitute things free or released from prosecution; The position of the law (legal standing) I in the case of the applicant Number 21/PUU-XI/2013 and the applicant I in Number 34/PUU-XI/2013 with the same thing, and the same purpose is a SPECIAL exception that is SPECIFIC and particularly if dihubungjan with the statement of the reasons of the applicant I (families) in the number 21/PUU-XI/2013, "the sentence" not confident that Antasari Azhar as Perpetrators. .. ";


52 the applicant's Statement I (family) against the perpetrator, Antasari Azhar, was indeed a fact that was not affordable by both the theory of criminal law and Criminology and victimology and criminal justice practices. The theory of the criminal law and the basic law, embraced a "no criminal without mistakes" and aims of punishment as a penjeraan instant lost the meaning of both juridical and sociological and philosophical basis is shifting views of moral values from the victims of criminal acts against the role of the perpetrator and not uncommon even may not have occurred in the judicial process in any country. The third aspect which experts mentioned prove that in filing a request at by the applicant can be the expert pointed out that the special circumstances and the specific above reflect (a novum) learned helplessness theory/doctrine of criminal law and Criminology and victimology that had embraced in answering how Applicant I (sacrifice) and Applicant I (Doer) has the position of law (legal standing) to the same object in the same lawsuit that became the background , and at once has had the same interests and the same purpose; Based on new facts that there is no parallel in both the theory and practice of criminal justice in Indonesia, experts argued that the filing of a request by the applicant including second PK particular and specific so that it can be viewed as a "NOVUM", which is the "entrance" (entry point) to obtain JUSTICE through the testing provisions of article 268 (3) paragraph against UUD1945; Second, was the novum, that goal to obtain justice in casu Article 263 ayata (1) of LAW No. 8 of 1981 on the law of criminal procedure through testing the Constitution lead to the existence of provisions which only allow PK filed one time [article 268 paragraph (3)], doubted the legitimacy of the legal provisions as pro-protection of human rights as already contained in the Constitution and the changes, especially those attached to the Applicant in the case of I Number 34/PUU-XI/2013; Shove off on a statement of the applicant's reasons above then I, Antasari Azhar, in Docket Number 34/PUU-XI/2013, about not found facts SMS/discussion in the mobile phone belonging to the applicant and the deceased I Nazaruddin, while those facts are the only hope for Justice is concerned, is the fact who has 53 new excluded by the Tribunal Judges in a quo. Waiver of that fact by Tribunal Judges at each level examination without going through in-depth examination of case in relationship murder (though against Mobile although defective, can still be taken and cloning data as happens in the case of terrorism), is the new facts that should be reconsidered in the filing at a second time but was hampered then by the provisions of article 268 paragraph (3) of the law of criminal procedure. Refer to a State, then it can be concluded that the provisions of article 268, paragraph (3) of the law of criminal procedure have been holding the applicant to obtain Justice ipso iure is contrary to the provisions of article 28C paragraph (1) the Constitution and changes; In addition to evidence of deepening neglect SMS and mobile phones are broken, the Tribunal judges matter a quo is also not doing ballistic evidence of deepening the bullet because there are differences in indictments consisted two bullet holes while in a photo of the victim certainly looks three (3) holes of bullets; The more fatal in the case Antasari Azhar is the presence of clothes the victim Nasrudin did not made the exhibits and not presented in the trial. The victim's dress properly there are blood spots are very useful for DNA testing as the development of science, in which the function of DNA and scanning can search the bloodstream comes from the bullet holes came from, whether blood flow coming from the hole in the front of the head or parts left/right side of the head. In the indictment, the victim Nasrudin Zulkarnaen died of 2 shots aside, while there are photo based former translucent front shot of the back. With facts like this it should be made possible can be found the victim died from a bullet shot from the front of the translucent back of the head, while the perpetrators in the indictment and the verdict of the District Court of Tangerang shooting from the side. In the system of investigation of murder docket in any country of the existence of the victim's clothes are the main evidence, with no details of the existence of the victim's shirt then reduce the essence of proof while simultaneously allowing judicial heresy; Based on concrete evidence of waiver fact as set forth above, then the considerations which underlie the Supreme Tribunal's ruling in the case by the claimant Antasari Azhar, mutatis mutandis,


54 Award, was contrary to the norms of the provision norms the provisions of article 28D paragraph (1) of the CONSTITUTION of 1945; In addition to the legal base which has been described above, to strengthen the issue of legitimacy of provisions of article 268 paragraph (3) of the law of criminal procedure in the case of filing PK, there is no harm if we together look back to the events of the killing of the victim Alm. Nazarudin diramaikan, which many people mainly because the culprit is the Chairman of KPK Vol II who had dared to hammer out matters of corruption involving High officials of the BI and one of them is the current President of the Relatives; Neither of us had heard that Antasari Azhar statement as Chairman of the KPK's. and the head of KPK other computerized devices will investigate on the holding of elections in 2009; Then also there's expert statement as Antasari Azhar and the ranks of the KPK Leader will take the case of Attorney General of BLBI RI after I and others NGOS coalition of Anti corruption facing the leadership of the KPK in which the sdr. KPK Chairman antasari Azhar as when it. Experts including a persistent fight for disclosure of the BLBI Case BI and cases by the KPK and together, we know how the Experts have become martyrs for the struggle; The obligation of all of us to improve the situation and to prevent repeated again Err judicial cases. Although the later filing free after the verdict with PK, will not be able to restore losses to convict in anti-materiel Moreover immaterial. Government Regulation Number 28 in 1988 only gives compensation of Rp. 2,500,000.0 (two and a half million dollars) against the decision of a freely even though the accused/convicted person has undergone six months of incarceration or imprisonment of 20 years. Although free Antasari Azhar later will not restore the position of Chairman of the KPK has become the pride and honor him, his freedom only sheer will restore the dignity and the dignity of the citizen as a man on him sticking to human rights (human rights); 5. Dr. IR. Supreme Harsoyo, m.SC., m. Eng Short Message Service (SMS) is a service that is widely applied in wireless communication systems (wireless), it does allow sending messages in the form of alphanumeric terminal or terminal customers 55 customers with external systems such as e-mail, paging, voice mail and others; SMS first appeared in parts of Europe in 1991 along with a wireless communication technology that is currently quite a lot of users, namely the Global System for Mobile Communication (GSM). The first message sent using SMS dialakukan in December 1992, sent from a Personal Computer (PC) to a mobile phone in GSM networks belonging to Vodafone United Kingdom; The mechanism of the workings of the SMS system is doing the sending short message from one terminal to another terminal to the customers. This can be done thanks to the existence of an entity in the system called SMS Short Message Service Centre (SMSC), also called Message Center (MC). SMSC is a device that performs tugasstore and forward short message traffic. It includes the determination or final destination of the route search sort message; SMSC has interkonektivitas with SME (Short Messeging Entity) which can be either a network e-mail, the web, and voice mail. SMSC is what will do the management SMS messages, either for the delivery queue settings, SMS, or receipt of SMS. The SMS service is a service that is non-real time where a short message can be disubmit to a destination, no matter whether that goal is active or not. When the detected destination is inactive, then the system will delay shipment to the destination until a goal is active again. Basically SMS system will guarantee delivery of a short message to get to the destination. The temporary delivery failures such as a goal that is not enabled is always identified so that repeated short message delivery will always be carried out unless imposed the rule that the short message has exceeded the specified time limit should be removed and is declared failed; Components that allow the transmission of SMS include: 1. Air Station (Cell Tower) is a cellular transmitter station that controls the entire cellular transmission in a communications network. Cell tower has the ability to give the initials response or answer in the form of voice or data traffic;

56 2. Mobille Switching Centre (MSC) is an electronic office that brings mobile. Computer system control system switches to network operations automatically; 3. Sort message service centre (SMSC) where there are in SMSC system store and forward in the delivery of SMS. SMS are stored in the network to mobile phone ready to accept then a pamakai can send or receive makas a user can send or receive SMS, each time where an ordinary voice calls in the on or off position; 4. the GSMC can communicate network via TCP/IP through the GSMC. GSMC is a MSC that is capable of receiving sms routing from customers and send sms to MSC or penginformasi about the exploration of the MSC of the phone company; Digital Evidence Against The Practice. Digital evidence can be secured by means of copying the whole entire data contained in the memory (dumb copy) so that when the original evidence is broken/changed from when the exhibits were seized. The science of digital evidence handling called digital forensic specialists. The mobile phone is a digital evidence. Based on the above description, it can be summed up as follows: • delivery of SMS can be done with a certain number without the knowledge of the owner of the number; • Of the six possible ways such as SMS sending in our descriptions, common and easy to do is to use a web server; • Use of web servers for SMS delivery has been practiced in front of a court hearing Negri South Jakarta; 6. Dr. Jamin Ginting, S.H., Indonesia is a country State MH law based on the Constitution of 1945. The law is one institution that needed to anticipate the rapid development of human life. Law enforcement efforts seeking justice is one which championed human rights until the deadline, although Justice itself is actually still felt faint; Some people argue that in the verdict of the Tribunal already is the end result must be received from a lawsuit. However


57 in the discourse of development and achieving a higher level of kejelihan, the verdict of the Court ceased to be an award that must be taken for granted. A paradigm change on a particular time and place to make justice it may change according to a specific time and place. So give the opportunity to everyone to put forth the effort that the name review as mentioned in section 263 subsection (1) of the CODE of CRIMINAL PROCEDURE; The review is not a new institution for the development of the law in Indonesia. The agency review of philosophy has similarities with herzeiene which is derived from the French legal system rooted in legal events in the Netherlands. Based on the principle of concordance, the application of the provisions of the law of the country of the colonizers to colonize the country, then the legal system applied in the Netherlands and also in Indonesia; Peninjuan back as a way to improve an adverse penal Judge of forgetfulness. The judge is a weak man, who can not avoid confusion or error. In addition, it may also happen to things that are beyond the capabilities of the new judges, then comes something new that can be used as evidence. The birth of the ruling of the Supreme Mahmakah regulations regarding the review cannot be separated with the case of Sengkon and Karta. Such cases concern because seen as judicial error in Bekasi District Court. For more than seven years, Sengkon and kemerdekaanya by the State deprived Karta which later proved that he was not guilty. The causes are less scrutinized more in depth, eventually through the means of his law can be resolved the way out by Supreme Court rule no. 1 in 1980; The judiciary is perverted as the case Sengkon and Karta happen again in 2008 against David Eko Priyanto and Imam Hambali alias Kemat, hereinafter called David and the priest. Starting from the recognition that it was he who killed Ryan Asrori, namely the victims who are accused of the murder of David case and priests; Others with Jonathan Pakpahan's case, the prosecutor submits a review. When a review is only given to the beneficiary and/or convicted person as specified in the Act No. 8 of 1981;

58 similarly to the case of Pollycarpus Priyanto, the prosecutor submits a review kemlai. Whereas it is clearly contrary to Section 263 subsection (1) of the CODE of CRIMINAL PROCEDURE that the review is the right of the convicted person or his heir, but in such cases, the prosecutor submits a review; Throughout these cases because there is new evidence (novum) that appeared then that can change the views of the judge or the State to change the ruling that has been decided before that have the force of law; Experts in this Council will give a description of the title Novum for the sake of Justice; Of proof in the criminal justice system aims to find the truth. It's just an awful lot of Indonesia's witness lied when giving description, thus causing a righteous man convicted and languishing in jail, while a wrong expressed freely. In addition to the testimony, many also wrong in assessing the evidence or did not provide strong evidence in court and the making of a convicted because prosecutors want the suspect to manipulate its own objectives; At the trial, the interests of the defendant's proof should be treated in a fair manner, so that no one is guilty or punished the guilty be punished are balanced, and the punishment should be balanced with a gaffe. A witness quoted the statements of Socrates who said, "the better to release a thousand criminals than punishing an innocent." In accordance with the provisions in Article 264 paragraph (3) of the CODE of CRIMINAL PROCEDURE, then a review application can only be submitted once. About the grace period the application for review is not restricted. Applicant review can also revoke the application review for has not been disconnected. It's just that if the application for review was revoked then there can ask a review again. Such provisions are regulated in Article 266 of the Act No. 14 of 1985 on the Supreme Court;

59 things that describe a new State known as novum. Novum or novi comes from the latin meaning something new, new facts, including also the new law. The latin novum, had the full term as verventra noviter German United Kingdom means newly discover fact with are usually a law to be introduced in case, even after reading are closed. So, even though the proceedings have been closed, but new facts can still be featured. Section 263 subsection (2) of Act No. 8 of 1981 on the law of criminal procedure mentioned the terms novum with new circumstances as a reason to apply for a review. Understanding the new circumstances or as a basis for the filing of novum review is not stated expressly in the CODE of CRIMINAL PROCEDURE, but only provide constraints when there is a new State or; In this, experts classify four types of novum, namely: 1. Novum that leads to the terms of the verdict are free or referred to as vrijspraak. The novum associated with elements of a criminal offence is proven and is revealed in the trial have been met before. It is based on the opinion of the said appointment of Sidabutar Mangasa novum relevant this should really focus on not proven all elements, some elements of criminal offence are didakwakan, which surely will bring legal consequences in the form of the verdict; Associated with the ruling of non regulated in article 191 paragraph (1) of the CODE of CRIMINAL PROCEDURE specifies that the verdict is free the results obtained from the examination of the trial, where the accused's fault or that didakwakan him not legally proven. For example, if a convicted person, the criminal offence of murder who are convicted under article 338 of the book criminal law legislation, submits the form the results of the visum novum explained that the victims died before the first convict killed him, then these elements can make novum removing other people's lives are not met; 2. Novum that leads to the terms of the verdict from all lawsuits or are known as onslag. The special circumstance is a novum, which resulted in the accused cannot be convicted criminal as it proved, but it is not a criminal offence, there is reason for forgiving, pembenar, or emergencies. But because of laws that


60 set the criminal act that didakwakan at the time of the occurrence of any act of the defendant, was no longer valid or revoked. If found novum, then it should be totally misguided that acts that proved correct, but didakwakan is not a criminal act, or are convicted but cannot be proven because there is a reason for forgiving and pembenar; 3. Novum that lead to the decision of a public prosecutor's demands unacceptable. The verdict demands public prosecutor is not acceptable is a statement from the judge stating that the public prosecutor demands were rejected on the basis of no cukupnya reason for continued examination. The difference with the other free verdict is that the demands of the public prosecutor is not acceptable, the refusal by a statute was done at the beginning of the trial, while other free verdict is carried out at the end of the trial; The existence of the ruling of the Prosecutor is not acceptable due to the existence of a difference of opinion between the public prosecutor with the judge on the basis of the prosecution. According to this provision, it is not right and excess veins because of the supposed shape determination. For example, that the facts be novum stated that a letter of complaint in the event that the matter is a complaint, apparently delik is made by a person who is not entitled. When the facts are known to the judge prior to the award of fixed magnitude, then according to estimates are reasonable, the judge should be stating the demands of the public prosecutor is not acceptable; 4. Novum that leads to the verdict with a lighter criminal provisions. Not every application of the law caused the novum lighter is sufficient to obtain a review. There must be a basic law in legislation to reduce the maximum pemidanaan that causes criminal who threatened in legislation reduced; Novum that leads to the relaxation of the law relating to the form of the assertion that didakwakan to the convicted person. The judge may grant the petition for review convict and hang up with a lighter sentence in a previous trial convicted person indicted with charges of alternative and are convicted on the charge of primary, 61 then novum found turned out to prove to convict on the charge of subsider or secondary; That number is the type of the novum, seyogianya the efforts of Justice to ask novum can also be given to certain parties who try to get justice. If, novum found after filing a first review and terminated by the Supreme Court, are we going to remove or obliterate all novum-novum that te; ah experts explain; All novum for the sake of Justice and limited to give effect to the novum justice for the convicted person, then it is appropriate that novum submitted more than once for the sake of Justice. Sebagamana opinion of Socrates that "better release a thousand criminals rather than punish an innocent." [2.3] considering that the petition against the applicant, the Government has provided information in proceedings 15th Maei 2013 and gave the affidavits are received at the Registrar of the Court on 12 June 2013, substantially as follows: i. on the SUBJECT MATTER of the PETITION of the APPLICANT 1. That according to the Applicant, the provisions of article 263 subsection (3) of the CODE of CRIMINAL PROCEDURE which limits Requests review of a verdict can only be done one time only have ignored the principles and values of Justice, the principle of substantial material/state law which guarantees the rights of citizens to fight for Justice and contrary to the law of responsive and progressive, so that the search for Justice should not be any restrictions. 2. That, according to the Applicant, as a result of article 268 paragraph (3) the CRIMINAL PROCEDURE CODE, if there is a technology or software-specific software that can detect the flow of sms received late. Nasrudin Zulkarnaen, who the applicant is I (and based on information expert at the trial in the State Court Jakarta Selatan) is not proven to be sent by using the number of applicant I, then the applicant is I keep losing the chance or the opportunity for legal efforts in order to be exempt from punishment. 3. That review in criminal cases is already 62 may be submitted to the proper Iebih from one time to the provisions based on new evidence based on the reason the utilization of science and technology which can be accounted for. The Applicant pleaded Article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE declared unconstitutional conditional so it reads "request for Review of a verdict can only be done one time only, unless it is against reason finds new evidence based on the utilization of science and technology may be submitted more than once". II. about the POSITION of the LAW (LEGAL STANDING) of the APPLICANT in accordance with the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011, stating that the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions. The above provision is emphasized in the explanation, that the definition of "constitutional rights" are the rights set forth in the Constitution of the Republic of Indonesia in 1945, then the first must explain and prove: a. credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011; b. rights and/or authority konstitusionalnya in the qualification which is considered to have been harmed by the enactment of the legislation being tested; c. loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. Further the Constitutional Court has given understanding and limitation of cumulative losses of rights and/or constitutional authority


63 arising from the enactment of legislation under article 51 paragraph (1) of Act No. 24 of 2003 On the Constitutional Court (vide verdict Number 006/PUU-111/2005 and subsequent Awards), must meet the five terms, namely: a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. the applicant's constitutional rights that are considered by the applicant have been wronged by an act that was tested; c. Constitutional losses that the claimant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. Over things, let the unquestionable importance the Applicant does is just right as the party considers the rights and/or authority konstitusionalnya harmed over the enactment of the provisions of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE. Against the position of the law (legal standing) of the applicant. The Government handed over entirely to the Venerable Chairman/Assembly Constitution judges to consider and judge whether the applicant has the legal position (legal standing) or not, as specified by article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011 as well as based on the rulings of the Constitutional Court earlier (vide verdict Number 006/PUU-111/2005 and decision number 1 1/PUU-V/2007). III. GOVERNMENT EXPLANATION OVER the TESTING APPLICATION UNDANGUNDANG which APPEALED by the APPLICANT That before the Government elaborates more on the material in mohonkan by the Applicant, the Government may provide that the provisions of article 268 against paragraph (3) of the ACT on the CODE of CRIMINAL PROCEDURE has ever done to ask a Constitutional Court with the register matter 16/PUU-64 VIII/2010 dated 15 December 2010 the amar award stating "plea the applicant can not be received" the ruling cited back in consideration of the Court in testing the return provisions of article 268 paragraph (3) of LAW 8/1981 on the register of case 64/PUU-VIII/2010 dated February 23, 2011 which also States "the petition of the applicant can not be received" that material charge against paragraph, chapter, or section in the legislation that has been tested, the test cannot be appealed again, except with another reason or different (vide Section 60 of the ACT the COURT, article 42 of the regulation the Constitutional Court number 06/FMD/2005 of Beracara Guidelines In Testing law); That, although the Applicant in their petition postulated that testing a quo contrasts with previous rulings. The Government does not see any other reason or different between a plea in the case number 16/PUU-VIII/2010 and 64/PUU-VIII/2010 with the reasons put forward by The Applicant in the application for a quo which in anyway requested a review may be submitted more than once. First, the articles of the Constitution in the same trials as submitted with the petition earlier. namely, article 1 paragraph (3), article 27 paragraph (1), article 28D, paragraph (1) of article 28 h subsection (2), and article 28I paragraph (2) of the Constitution nevertheless Government highly appreciate the efforts of (the law) made by the applicant, including applying for a testing legislation a quo, so that the process of law enforcement can be run in a professional, egalitarian, transparent, accountable and upholding the principles of the legal State Justice Against conditions in mohonkan the applicant. The Government could give an explanation as follows: 1. That article 1 paragraph (3) of the Constitution confirms that Indonesia is a State of law. The principle of State of law is the general principle embraced in the country among others, the principles of supremacy of law, equality before the law, and due process of law guaranteed constitutionally. In line with the provisions of the law of the country of one of the principles is the recognition, guarantees, protection and legal certainty of fair and equal treatment before the law.

65 2. That the principle of due process of law as a manifestation of the recognition of human rights in the criminal justice process became the basis of the need to uphold high by all parties, especially for law enforcement agencies. The embodiment of the human rights award to be implemented by providing a balanced position, including in the process of criminal justice, including in this case is for the suspect, the accused or convicted person in defending his rights in a balanced way. 3. the CODE of CRIMINAL PROCEDURE as a law of the criminal justice process in formyl in Indonesia has formulated a number of the rights of the defendant as a protector against the possibility of the violation of human rights. In the event that the filing of a remedy against a ruling of the Court, the accused or the convicted person by the CODE of CRIMINAL PROCEDURE are still given the space to defend his rights do a review through the efforts of appeal, cassation and even filing a review against the verdict which has acquired permanent legal force. 4. That the remedy "Review" is a form of legal efforts are extraordinary, referred to as the remedy Iuar good, because a verdict that has had the force of law that remain (eksekutorial) that may already be (completed) were executed, could still be proposed remedy, that its use is ever done selectively and only used in special situations, because there will be no other remedy. Therefore, its use is limited by any special conditions, namely "(if) the discovery of new evidence (novum) and/or the presence of kekhilafan or fallacy of judges in applying the law" [vide explanation to article 24 paragraph (1) of Act No. 48 in 2009 about the Power of Justice]. 5. That submission of the review should be based on a sufficient reason. Doctrinal basis there are two important reasons in the submission review, namely the existence of a "conflict van rechtspraak ' and the existence of a" novum ". What is meant by van rechtspraak conflict is there separate Awards with the stated circumstances proven, but it turned out to be the one with the Iainnya contradictory. While the novum is the existence of a new State which raises strong suspicion, if it is known that at the time of the alleged trial still


66 progress result will be a verdict of non or escape from lawsuits or prosecution demands unacceptable and also on the matter of criminal provisions which applied a light Iebih. 6. That new circumstances (novum) that can be used as a foundation request for review is the State which has the nature and quality of the raises strong suspicion, that: a. If the new State was known or invented and presented at the time of the trial takes place, can be a factor and the reason for dropping the verdict or ruling of any legal proceedings; or b. the new State if found and known at the time of the hearing taking place, could be the reason and to drop the verdict stating the demands of the public prosecutor is not acceptable; or c. the excuse and to drop the verdict by implementing the provisions of the criminal a lighter. 7. That the basic parameters that influence the new circumstances very strong are: a. Supported by at least a minimum of two valid instrument of evidence as referred to in article 183 CODE of CRIMINAL PROCEDURE. b. based on legal proof "new circumstances" had a direct influence, relationships and therefore can be used as a basis to overturn the ruling of pemidanaan consideration, due to the efforts of the law review. c. form of the conditions necessary to be able to overthrow amar liberation, apart from any legal proceedings, the public prosecutor demands unacceptable, or implementing regulatory criminal a lighter. 8. According to the Government, the provisions of article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the Supreme Court ACT and section 268 paragraph (3) of the law of criminal procedure LAW has consistently set up provisions regarding the review, as such provisions contained in several of the laws mentioned above, especially the set of review (PK) has provided a guarantee, 67 protection and legal certainty the fair as guaranteed in article 28D paragraph (1) of the Constitution. A quo provisions also do not limit the right to hinder setidaktidaknya/benefit from science and technology, art and culture in order to improve the quality of life as set in article 28C paragraph (1) of the Constitution. Jikalaupun there are restrictions established by law are solely within the framework of respect for the implementation of the human rights of others [vide Article 28J subsection (1) and paragraph (2) of the Constitution of the Republic of Indonesia in 1945]. Further, according to the Government, if it does not set restrictions on how many times the effort of the law (in this Review) can be done it will be legal uncertainty and obscurity happened to how many times a review can be carried out which resulted in the handling of the matter was never completed, it also can make delay the search for Justice tegaknya Justice itself up to a period of time can not be determined bearing in mind the potential will be the incidence of new legal facts (novum) which can change the decision of a Review that has been there before. In addition to this criminal justice system (criminal justice system) that the fair will be a prolonged criminal justice system, exhausting as well as legal certainty and justice the law nor will never obtain. 9. According to the Government, these restrictions are intended to provide legal certainty over the settlement of a lawsuit, so one cannot easily perform legal review efforts repeatedly. Moreover this limitation in line with the judicial process which requires implementing the principle of simple, fast, and lightweight. With restrictions that will inevitable presence of prolonged litigation and lead to go on larutnya did the justice effort ultimately could pose a challenge to justice itself, as represented in adagiurn "justice delayed justice denied";

68 IV. Explanations and conclusions based on the above arguments, the Government appealed to the Chairman of the Constitutional Court Judges of the Tribunal/the check and disconnected application testing (constitutional review) the provisions of article 268 paragraph (3) of the ACT CODE of CRIMINAL PROCEDURE of the State Constitution of the Republic of Indonesia in 1945, can deliver a wise verdict and seadil-fair (ex aequo et bono.) [2.4] considering that the petition against the applicant, the House of representatives (DPR) provides information in the trial on May 15, 2013 and gave the affidavits are received at the Registrar of the Court on 5 July 2013, substantially as follows: i. the position of the law (Legal Standing) against the position of the law (legal standing) of the applicant, the HOUSE handed over entirely to the Chairman of the Constitutional Court Judges Assembly/mulya to consider and assess whether the applicant has the legal position (legal standing) or not, as regulated by article 51 paragraph (1) of the Act of the Constitutional Court and on the basis of the ruling of the Constitutional Court the number 006/PUU-III/2005 and no. 011/PUU-V/2007. II. Testing of the CODE of CRIMINAL PROCEDURE, the Act Supreme Court ACT, and the powers of the Judiciary that the issues of principal or principal problems in Number 34/PUU-XI/2013 is filing a petition for a review of restrictions that can only be done one time only as set forth in the provisions of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE. According to the applicant the terms should be modified by allowing the filing of a petition for review more than once for the sake of Justice and righteousness specifically delegated substantive or material loss. The HOUSE of REPRESENTATIVES to give the following information: 1. That the appropriate principle of State of law as set forth in article 1 paragraph (3) of the Constitution, then the State of Indonesia embraced, among others, the principles of supremacy of law, equality before the law, and due process of law guaranteed constitutionally. The principle of State of law is the general principle embraced in Republic of Indonesia


69 while in its implementation should be linked to the other ketetuan provisions in the Constitution. 2. That the State law as a aims to realize a prosperous nation life governance, secure, peaceful, and orderly effort is required to enforce the order, justice, truth and certainty of the law led to the shelter community. One of the efforts to enforce the order, justice, truth and legal certainty can be through the submission of a review which is an extraordinary remedy. Filing the review submitted to the Supreme Court as the highest court of the country based on Act No. 48 in 2009 about the powers of the Judiciary. Request for a review must be supported by evidence to determine, thus the inclusion of evidence that not only as a condition but rather as a matter or circumstances include the discovery of new evidence (novum); 3. That in the judicial system, in order to realize the protection of granting a guarantee of legal certainty, among others, as set forth in article 1 paragraph (3), article 28A, article 28D paragraph (1) of the Constitution, there is a very basic principle i.e. as provided for in article 2 paragraph (4) juncto article 4 paragraph (2) of the ACT that the Power of Justice, "Justice is done with a simple, fast, and lightweight". Next in the explanation of article 2 paragraph (4) of the ACT a quo said that "simple" is the examination and settlement of the matter carried out by way of efficiently and effectively. While the definition of "small fee" means the fees that can be reached by the community. However, the principle is simple, fast, and lightweight in the examination and settlement of the matter in the courts did not rule out the thoroughness and accuracy in the search for truth and justice; 4. That by basing on the principle of the implementation of the judiciary, determining that the submission review is limited to only 1 (one) time is a proof that there is intention forming legislation to give motifasi to the Chief Justice who break things 70 review to act with great caution and accuracy in decision making because of an award will determine the fate of a person. In accordance also with the provisions of article 6A Act No. 3 of 2009 about the second amendment in the law No. 14 of 1985 on the Supreme Court, the Chief Justice determines that have integrity and personality is not reprehensible, fair, professional, and experienced in the field of law. With the requirements for such a strict Judges are expected in any decision making has been done carefully, meticulously, and professional so that the inevitable confusion that should not have happened; 5. That the provisions of article 263 para (2) of the CODE of CRIMINAL PROCEDURE States: "the request for a review is conducted on the basis of: a. If there are circumstances which give rise to the alleged new powerful form, that if it had been known at the time the trial is still in progress, the result will be either free or ruling of any lawsuits or public prosecutor demands unacceptable or against the matter applied criminal provisions lighter; b. If there is a verdict in the various statements that something has been proven, but the thing or circumstance as the basis and reason for ruling that has proven it, it has been at odds with one another; c. when the verdict was clearly shows a kekhilafan judge or confusion is real. The provisions of the basic settings to apply for such a review, has given guidelines for seekers of Justice to have his rights. As stated in article 266 paragraph (2) letter b CODE of CRIMINAL PROCEDURE which States: "in case the Supreme Court held that the review request is acceptable for review, applies the following conditions: b 71. If the Supreme Court confirming the applicant's reasons, the Supreme Court cancelled the verdict that requested a review of it and dropping a verdict that can be either: 1. the award shall be free; 2. the award shall be separated from any legal proceedings; 3. the verdict cannot accept the demands of the public prosecutor; 4. the verdict of the criminal provision by applying the lighter ". 6. That Article 28D paragraph (1) of the Constitution states that "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". The emphasis on legal certainty that is fair to everyone before this law became the basis of philosophical laws regulate the submission review. 7. That the third act of the judicial wing a quo has consistently set the submission review in Article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the Supreme Court ACT, and section 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE. Thus the search effort in order to obtain justice in a fair legal certainty has been provided for in legislation a quo and there is no contradiction between the third act of a quo 8. That by filing the review which is not bounded, it can cause harm to the process of Justice in search of Justice, because when it opened opportunities for the submission of a review more than one time in addition to breaching the Act also led to the resolution of the matter becomes long that does not expire without endless, that may give rise to legal uncertainty for the seekers of Justice; 9. That restrictions on the rights of the justice seekers in filing a petition for review as set forth in the articles of the Statute a quo which petitioned testing, constitutionally justifiable based on the provisions of article 28J paragraph (2) of the CONSTITUTION of 1945, this restriction is precisely to provide commonality of position in law and equality in obtaining justice for all citizens to ensure the equitable and legal certainty


72 legal protection based on the legislation in force, therefore is in compliance with article 1 paragraph (3), article 24 paragraph (1) of article 28D, paragraph (1), and the CONSTITUTION of 1945; 10. That the restriction related to the filing of the petition for review as outlined by the House above, in line with the legal opinion of the Constitutional Court in Ruling for case number 16/PUU-VIII/2010 on page 66 – 68 are among others mentioned as follows: "That, according to the Court, State law is the State, among other things, the principles of supremacy of law, equality before the law, and due process of law guaranteed constitutionally. The principle of State of law is the general principle embraced in the Organization of the Republic of Indonesia while in its implementation should be linked to the other ketetuan provisions in the Constitution "" peninjuan application Restriction back as petitioned the applicant is within the framework of due process of law that is reasonable in the formulation of the Act provided that the restrictions were treated equally to all people to enforce the laws of material, as well as restrictions upon the freedom of a person due to the Act of detention by law enforcement authorities that apply to all persons who do "crimes" according to the Court if terms of the petition for reconsideration as extraordinary remedy is not constrained then it will happen the legal uncertainty and vagueness to the number of times a review can be done. Such circumstances will give rise to legal uncertainty for a just a matter of when it will end that is precisely contrary to the provisions of the Constitution should give recognition, guarantees, protection and legal certainty are fair to everyone, "" it is true that the right of everyone to seek and receive justice is guaranteed by the Constitution. These rights are not absolute but can be limited according to the provisions of article 28J paragraph (2) of the Constitution determines that in the exercise of rights and freedom, everyone is obliged to submit to the limitations set forth by Law 73, meant solely to ensure recognition and respect upon the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values , security and public order in a democratic society ". That based on the descriptions-descriptions, then the provisions of article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the Supreme Court ACT, and section 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE are in no way contrary to the provisions of article 1 paragraph (3), article 24 paragraph (1), article 28A paragraph (1) of article 28C, paragraph (1), and 28D paragraph (1) the Constitution thus PARLIAMENT may invoke the Chairman/the glorious Constitution Judges of the Tribunal gave the following verdict amar : 1. Refuse the application for the Applicant or at least appeal the Applicant cannot be accepted. 2. Declare the HOUSE accepted Description for entirely; 3. Declaring the provisions of article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the ACT Supreme Court and article 268, paragraph (1) and paragraph (3) of the CODE of CRIMINAL PROCEDURE are in no way contrary to the provisions of article 1 paragraph (3), article 24 paragraph (1), article 28A paragraph (1) of article 28C, paragraph (1), and paragraph (1) 28D UUD 1945 4. Declaring the provisions of article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the ACT Supreme Court and article 268, paragraph (1) and paragraph (3) of the CODE of CRIMINAL PROCEDURE still have the force of law. [2.5] considering that the appellant delivered the written conclusions are received at the Registrar of the Court on June 27, 2013 which substantially remained with its founding; [2.6] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the news events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the main problems of the application of the Applicant is the application for testing the constitutionality of article 268 paragraph (3) of the 74 Law No. 8 of 1981 on the law of criminal procedure [Gazette of the Republic of Indonesia Number 76 of 1981, additional sheets of the Republic of Indonesia Number 3209, hereinafter LAW 8/1981 (CODE of CRIMINAL PROCEDURE)] which States, "request for Review of a verdict can only be done one time only" against the Constitution of the Republic of Indonesia in 1945 , hereinafter the Constitution, specifically article 1 paragraph (3), article 24 paragraph (1), article 28C, paragraph (1) and section 28D subsection (1) which States: article 1 paragraph (3): "the State of Indonesia is a country of laws"; Article 24 paragraph (1): "the powers of the judiciary is an independent power to conduct trials in order to enforce the law and justice"; Article 28C paragraph (1): "everyone has the right to develop themselves through fulfillment of the needs of nature, is entitled to education and benefit from science and technology, art and culture in order to improve the quality of life and well-being of the human race"; Article 28D paragraph (1): "everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) in advance will take into account: a. the authority of the Court to adjudicate a petition for quo; b. the position of the law (legal standing) of the applicant to apply for a quo; Against both, the Court held as follows: the authority of the Court [3.3] considering that on the basis of the provisions of article 24C paragraph (1) Constitution, article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court as amended by Act No.


75 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia number 70 in 2011, an additional Sheet of the Republic of Indonesia Number 5226, hereinafter abbreviated to MK ACT), and section 29 subsection (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076) , one of the Court's authority is authorized to adjudicate on the first and last level that an award is final to examine legislation against the CONSTITUTION of 1945; [3.4] considering that, due to the applicant is petitioned by testing legislation in casu CODE of CRIMINAL PROCEDURE against the Constitution, which became one of the powers of the Court then the Court is authorized to adjudicate a petition for quo; The position of the law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who consider the rights and/or konstitusionalnya the authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the individual citizen of Indonesia (including groups of people having the same interests); b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: a. the applicant as referred to in Article 51 paragraph (1) of the ACT the COURT;

76 b. loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that the Court Verdict since the number 006/PUU-III/2005, dated 31 May 2005 and decision number 11/PUU-V/2007, dated September 20, 2007 and subsequent rulings have held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five criteria, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. loss of rights and/or the constitutional authority must be specific and actual or potential according to the reasoning at least reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the loss of rights and/or constitutional authority is the enactment of law petitioned testing; e. of the possibility that by dikabulkannya the petition, then the loss of rights and/or constitutional authority as postulated would not or no longer occur; [3.7] considering that the applicant's legal position regarding the Court consider the following: 1. The claimant Antasari Azhar, S.H., M.H.  Peseorangan citizen of Indonesia as a convict in criminal cases in the State Court Jakarta Selatan Number 1532/Pid. B/2009/PN. Jkt. Cells that had been terminated on February 11, 2010. The verdict against the claimant Antasari Azhar, S.H., M.H., filing regular remedy, namely a cassation petition is terminated by the Supreme Court with Ruling Number 1429K/Pid/2010, dated 21 September 2010 and against the verdict, the claimant Antasari Azhar, S.H., M.H., filed an extraordinary remedy Review (PK) and has been terminated by the Court 77 the great Number 117PK/Pid/2011 , dated February 13, 2012, which amarnya States reject the petition for Review filed the claimant Antasari Azhar, S.H., M.H. Applicant intends to file a lawsuit against the PK, but due to the entry into force of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE, the claimant Antasari Azhar, S.H., M.H., can't propose a remedy at longer to clear his name, if one day there is a new State which can give a different verdict with the verdict of the South Jakarta District Court Number 1532/Pid. B/2009/PN. Jkt. Tues, February 11, 2010 the Supreme Court verdict juncto Number 1429K/Pid/2010, September 21, 2010;  on the basis of the evidence connected with the constitutional rights specified in the Constitution, especially Section 28D subsection (1), according to the Court, the applicant had suffered losses are specific constitutional and actual or potential according to the reasoning at least reasonably certain will happen and there is a causal relationship (causal verband) between the loss of rights and/or constitutional authority is the enactment of laws that petitioned the testing when it was granted then loss of rights and/or constitutional authority as postulated would not or no longer occur; Based on the above considerations, according to the Court, the claimant Antasari Azhar, S.H., M.H., has a position of law (legal standing) to apply for a quo; 2. Applicant Ida Laksmiwaty S.H., and Maya Oktarifka Antasariputri  Applicant Ida Laksmiwaty S.H., and Maya Oktarifka Antasariputri is an individual citizen of Indonesia which is the wife and child of the claimant Antasari Azhar, S.H., M.H., therefore have a relationship as a family can ask a review as specified in article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE. Thus, potentially harmed by the enactment of the provisions of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE so that there is a causal relationship (causal verband) between the loss of rights and/or constitutional authority is the enactment of laws that petitioned the testing when it was granted then


78 the loss of rights and/or constitutional authority as postulated would not or no longer occur;  Based on the above considerations, according to the Court, the applicant Ida Laksmiwaty S.H., and Maya Oktarifka Antasariputri has the position of law (legal standing) to apply for a quo; [3.8] considering that because of the Court is authorized to adjudicate a petition for quo and the applicant has the legal position (legal standing) to apply for a quo, the Court will consider the subject matter of the petition; The subject matter of the petition [2.4] considering that the Applicants argued that Article 268 subsection (3) is contrary to the CODE of CRIMINAL PROCEDURE article 1 paragraph (3), article 24 paragraph (1), article 28C, paragraph (1) and section 28D subsection (1) of the Constitution, arguing as follows: 1. That in order to seek the truth of Justice then any citizen is entitled to the benefit of science and technology such as DNA testing the lies, the test included technology in the field of telecommunications, as well as every citizen has the right to promote himself to get justice; 2. That article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the Constitution declare Indonesia as a State law, provide recognition, guarantees, protection and legal certainty are fair to every citizen on the law and justice. Press the point of the norm in article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the Constitution is the attainment of a just legal certainty, not simply a legal certainty that throw over a sense of Justice; 3. That the right to justice is the right of every citizen without exception especially citizens who are fighting for Justice and anyone should not impede justice seekers or citizens to obtain justice; 4. That the legal certainty must be placed within the framework of enforcement of Justice (justice enforcement), so if they are not in line 79 then keadilanlah to be won, because the law is a tool to enforce justice substantial (material) within the community, not a tool to find formal victory; 5. That criminal law enforcement process have yet to make the most of science and technology in particular DNA testing, ballistics tests and found the truth so lets lie in a downright utilize science and technology in the future; 6. That the similarities in the law (equality before the law) and the principle of fairness has been eliminated by the provisions that restrict the filing of Review more than once as set forth in the provisions of the legislation that petitioned to be tested, so that the Applicant could not enjoy the justice before the law as citizens of Indonesia (vide Section 28D subsection (1) of the Constitution); Considering that to prove the evidence the Applicant submits evidence that writing letters/marked evidence of P-1 to P-24, the evidence of two witnesses, namely Sri Bintang Pamungkas IR., M.Si, Ph.d., SE., and Dr. Jonathan Pakpahan, S.H., as well as six experts, namely Prof. Dr. Yusril Ihza Mahendra., S.H., M.Si, Dr. Siddin Son Irman, S.H., M.H. Dr. Chudry Sitompul, S.H., M.H., Emeritus Professor Romli Atmasasmita, S.H., LL. M., Dr. IR. Supreme Harsoyo, m.SC., m. Eng., and Dr. Jamin Ginting, S.H., M.H., the more information the witnesses and the experts, contained in section sat the matter; [3.10] considering that the Court has heard the oral information and read the affidavits of the President who in anyway: 1. That the provisions of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE ACT never asked done to Constitutional Court and disconnected with the verdict of the number 16/PUUVIII/2010, dated December 15, 2010, but the Government does not see any other reason or different between a plea in the case number 16/PUU-VIII/2010 with the reasons put forward by the Applicant in the application for a quo. First, the articles of the proposed Constitution as a rock the same test with the previous application. namely, article 1 paragraph (3), article 27 paragraph (1), article 28D, paragraph (1) of article 28 h subsection (2), and 80 Article 28I paragraph (2) of the CONSTITUTION of 1945; 2. The provisions of article 24 paragraph (2) of the Act the power of Justice, article 66 paragraph (1) of the Supreme Court Act, and section 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE has consistently set up provisions regarding the review. Thus the provisions contained in several of the laws mentioned above, especially the set about the review has provided a guarantee, protection and legal certainty the fair as guaranteed in article 28D paragraph (1) of the Constitution. Provision of a quo also does not limit or at least hinder the right to benefit from science and technology, art and culture in order to improve the quality of life as set in article 28C paragraph (1) of the Constitution. If there are any restrictions established by the law are solely within the framework of respect for the implementation of the human rights of others [vide Article 28J subsection (1) and paragraph (2) of the Constitution of the Republic of Indonesia in 1945]; 3. When not set restrictions regarding the number of times the legal effort (in this case review) can be done it will be legal uncertainty and obscurity happened to how many times a review can be carried out which resulted in the handling of the matter was never completed. It also can create a delay tegaknya justice for seekers of Justice itself up to a period of time can not be determined bearing in mind the potential will be the incidence of new legal facts (novum) that could change the decision of a Review that has been there before. In addition, the criminal justice system (criminal justice system) a fair criminal justice system would be prolonged, laborious, as well as legal certainty and justice the law also will not visit retrieved; 4. these restrictions are intended to provide legal certainty over the settlement of a lawsuit, so one cannot easily perform legal review efforts repeatedly. Moreover, the restrictions are in line with the judicial process which requires implementing the principle of simple, fast, and lightweight. With restrictions that will inevitable presence of prolonged litigation and lead to go on larutnya also an effort gain


81 justice ultimately could pose a challenge to justice itself as depicted in adagium "justice delayed justice denied"; [3.11] considering that the Court has heard the oral information and read the affidavits of REPRESENTATIVES who in anyway: 1. That Article 28D paragraph (1) of the Constitution states, "every person has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". The emphasis on legal certainty that is fair to everyone before the law which formed the basis of philosophical laws regulate the submission review; 2. That the third act of the judicial wing a quo has consistently set the submission review in Article 24 paragraph (2) of the ACT the power of Justice, article 66 paragraph (1) of the Supreme Court ACT, and section 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE. Thus the search effort in order to obtain justice in a fair legal certainty has been provided for in legislation a quo and there is no contradiction between the third act of a quo; 3. That by filing the review which is not bounded, it can cause harm to the process of Justice in search of Justice, because when it opened opportunities for the submission of a review more than one time in addition to breaching the Act also led to the resolution of the matter becomes long that does not expire without endless, that may give rise to legal uncertainty for the seekers of Justice; 4. That the limitation of the right of submission of petition for Justice in search review as set forth in article Act a quo which petitioned testing, constitutionally justifiable based on the provisions of article 28J paragraph (2) of the CONSTITUTION of 1945. This restriction is precisely to provide commonality of position in law and equality in obtaining justice for all citizens to ensure the legal certainty that is fair and legal protection based on the prevailing statutory regulations 82, therefore is in compliance with article 1 paragraph (3), article 24 paragraph (1), and article 28D paragraph (1) of the CONSTITUTION of 1945; 5. That the restriction related to the filing of the petition for review as outlined by the House above, in line with the legal opinion of the Constitutional Court in its ruling of 16 Numbers/PUU-VIII/2010, page 66 – 68; [3.12] considering that the Court has received a written conclusion the Applicant, while the President and the PARLIAMENT did not propose the conclusion; The Court's opinion about the Ne bis in idem [3.13] considering that Article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE, had appealed the test konstitusionalitasnya and has been terminated with the ruling of the Constitutional Court the number 16/PUU-VIII/2010, dated 15 December 2010 (vide affidavits President and HOUSE of REPRESENTATIVES). Therefore, the Court will consider first whether the applicants petition the ne bis in idem? To consider the matter, the Court will need to refer to Article 60 paragraph (2) of the ACT the COURT stating, "a provision referred to in subsection (1) may be excluded if the charge material in the Constitution of the Republic of Indonesia in 1945, which provided the basis of the different test". Based on the provisions of the article have been filed against testing konstitusionalitasnya and has been terminated by the Court could be tested again when there is basic testing. According to the Court, after carefully paying attention to the application of the Applicant, the basic test used in the solicitation number 16/PUU-VIII/2010 the Constitutional Court terminated on December 15, 2010, is the article 1 paragraph (3), article 27 paragraph (1), article 28D, paragraph (1) of article 28 h subsection (2) and article 28I paragraph (2) of the Constitution. In addition, the applicant in the solicitation number 16/PUU-VIII/2010 is a private law entity (PT. Harangganjang), whereas in a quo there is another article of the Constitution which became the basis of the different test, namely Article 24 paragraph (1): "the powers of the judiciary is an independent power to conduct trials in order to enforce the law and justice" as well as Article 28C paragraph (1), in particular regarding the right to acquire the 83 the benefits of science and technology in relation to the new circumstances in order to propose a review over the matter that has been terminated by the Supreme Court. Therefore, according to the Court, the application for the Applicant not to ne bis in idem, so that the Court would consider the subject matter of the petition; [3.14] considering that the next Justice will consider about constitutional issues in question by the Applicant i.e. whether restrictions on the submission review as specified in article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE is contrary to the Constitution? [3.15] considering that before the Court considers the constitutional issue, the Court must first consider the following things: 1. The reason for can apply PK as specified in section 263 subsection (2) of the CODE of CRIMINAL PROCEDURE States, "Request a review carried out on the basis of: a. If there are new circumstances which give rise to strong suspicion, that if the situation was already known at the time the trial is still in progress, the result will be either free or ruling of any lawsuits or public prosecutor demands unacceptable or against a things it applied the provisions of the criminal a lighter; b. If there is a verdict in the various statements that something has been proven, but the thing or circumstance as the basis and reason for ruling that stated it has been proven that, turns out to have been at odds with one another; c. when the verdict was clearly shows a kekhilafan judge or confusion is real. Those reasons are generally associated with the nature of judicial proceedings in criminal cases that actually pembuktiannya must convince the judge regarding the truth of the occurrence of an event (the truth of material), that is a truth that there is no longer any doubt. Searching the truth that such willingness by the nature of the criminal law as in the phrase, "bak a double-edged sword". That is, the criminal law


84 are intended to protect people, but by way of wearing criminal in fact invade what is protected from man; 2. Principles of State law which has been adopted in the Constitution lays a principle that everyone has human rights (human rights), which thus requires that others, including the State, in his honor. Even in constitutional, constitutional provisions on HUMAN RIGHTS in the perspective of the historical-philosophical in the formation of the country meant to protect Nations Indonesia and based on a just and civilized humanity (vide Preamble of 1945). Therefore, the State is obliged to provide the protection, promotion, enforcement, and compliance against human rights. [vide Article 28I paragraph (4) of the Constitution]. Principles as outlined above, particularly the latter, giving birth to a principle that judicial proceedings in criminal cases should be up on the truth, a truth which is materially in it there is no longer any doubt. Of such a principle was born also the principle in the process of criminal justice, namely "better set the guilty than to drop the criminal to someone who is not guilty". In the phrase there is deeper meaning within, that when the Court dropped the verdict stating someone is guilty and therefore imposed a criminal must be totally based on a fact of law that is believed to be a truth. Otherwise it will happen that the State through the Criminal Court had violated human rights, though constitutionally the State through the judicial process must instead protect HUMAN RIGHTS [vide Article 24 paragraph (1) of the Constitution]; 3. The obligation of the State to enforce and protect HUMAN RIGHTS in accordance to principles of democratic law State requires the implementation of HUMAN RIGHTS is guaranteed, set up, and poured in the regulations [vide Article 28I paragraph (5) of the Constitution]. The law of criminal procedure is the implementation of the enforcement and protection of HUMAN RIGHTS as constitutional provisions in the Constitution. It is thus in accordance with the principles of a democratic State of law, that due process of law; 4. Related to the enforcement and protection of HUMAN RIGHTS which is also a constitutional right based on Constitution then in the process of criminal justice 85 experienced someone must get a fair legal certainty [vide Article 28D paragraph (1) of the Constitution]. In this case emphasized that legal certainty that often dominate a judicial process given the fundamental conditions, namely the Justice became a basic need for every employee, including when undergoing judicial process. That's why the importance of organized a review so that everyone in the criminal justice process suffered can still gain justice, even when the verdict has acquired the force of law that remain with some reason that it is generally associated with justice; The third reason based on the PK as described above, there is a reason related to a convicted person, while the two other reasons related to the judge as the implementing powers of the judiciary. The only reason related to a convicted person i.e. concerns the events that benefit the convicted person in the form of a new State (novum) that while the judicial process takes place when found the verdict the judge believed to be other [vide Article 263 paragraph (2) letter a CRIMINAL PROCEDURE CODE]. Therefore and because justice is related to constitutional rights or HAM for someone who was a criminal, in addition to new circumstances likely anyway because (novum) can be found at any time, can not be determined exactly when it's time then adilkah when PK is restricted only one time as specified in article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE. What is the real meaning of Justice as a constitutional right for someone who satisfy an obligation of the State, if the State shut it down precisely with the provisions of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE; [3.16] considering that on the basis of the above considerations, the Court shall consider whether the applicant's proposition that Article 268 paragraph (3) of the CODE of CRIMINAL PROCEDURE States, "request for review of a verdict can only be done one time only" contrary to the Constitution. Against this Court consider as follows: [3.16.1] that the extraordinary remedy PK historically philosophical-legal effort is born in order to protect the interests of the convicted person. According to the Court, the legal effort contrasts with the appeal or at Cassation as a remedy. The usual remedy must be linked to the principle of legal certainty


86 because without legal certainty, namely by specifying the limitation of time in filing regular remedy, it will give rise to legal uncertainty that necessarily will bear injustice and legal process did not complete. Thus, the provisions of which a requirement can take ordinary remedy in addition to the objective truth related to achieve, also linked on the formal requirements that is associated with a certain time lag after he knew a ruling of a judge by the parties formally anyway. As for the extraordinary remedy aims to find justice and righteousness materially. Justice cannot be limited by time or conditions that limit the formality that extraordinary remedies (review) may only be submitted once, because just maybe after he charged at and terminated, there are new circumstances (novum) recently found that a substantial at the time of PK not previously found. As for judgement about something is or is not novum, novum is the authority of the Supreme Court which has the authority to adjudicate on level 5, therefore, that a requirement can take an extraordinary remedy is very materially or substantially and very basic requirement is associated with the truth and fairness in the criminal justice process as specified in section 263 subsection (2) of the CODE of CRIMINAL PROCEDURE, which States "the request for a review is conducted on the basis of : a. when there are new circumstances that raises strong suspicion, that if the situation was already known at the time the trial is still in progress, the result will be either free or ruling of any lawsuits or public prosecutor demands unacceptable or against the matter applied lighter criminal provisions; b. .... etc "; The character of truth about the events that formed the basis of the award the objective truth of criminal cases is based on evidence with the evidence that convinced the judge, that is the truth that there is no longer rationally doubts in it because it is based on legitimate and convincing evidence. Therefore, the evidence in criminal cases may be filed only a specified minimum limits, not the maximum. Thus, to obtain the conviction meant the law should give the possibility for the judge to open the chance that other evidence was granted, until he encountered the belief in question;

87 in line with the character of truth, because in General, the CODE of CRIMINAL PROCEDURE aims to protect the HUMAN RIGHTS of the arbitrariness of the State, especially those related to the right to life and freedom as a right that is very fundamental for human beings as provided in the Constitution then in considering PK as an extraordinary remedy that is set in the CODE of CRIMINAL PROCEDURE shall be in such a framework, i.e. to achieve and enforce the law and justice. The efforts of the attainment of legal certainty it is very feasible to held the restrictions, but legal justice achievement efforts it is not the case, because justice is a very basic human need, more fundamental human needs of about legal certainty; The truth of the material contains the spirit of justice while the legal norms of the show contain the nature of the legal certainty that is sometimes ignored the principle of Justice. Therefore, the legal effort to find the truth of the material for the purpose of fulfilling the legal certainty has been completed with the Court ruling which has acquired permanent legal force and put the legal status of the accused being convicted person. This is emphasized by the provision of article 268 subsection (1) of the CODE of CRIMINAL PROCEDURE States, "Request a review of an award shall not suspend or stop the execution of the verdict". [3.16.2] considering that Article 28J paragraph (2) of the Constitution states, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public order in a democratic society", according to the Court of , the restrictions referred to by article 28J paragraph (2) of the Constitution could not be applied to restrict the filing of PK only once due submission of PK in criminal cases is highly associated with human rights concerns, namely the most fundamental freedom and human life. Moreover, the filing of PK is not associated with a guarantee of recognition, as well as reverence for the rights and freedoms of others and are not related to the fulfillment of the 88 claims fair use in accordance with the moral considerations, religious values, security and public order in a democratic society; [3.16.3] considering that right in there basic litis finiri oportet every matter must be there eventually, but according to the Court, it relates to the certainty of the law, while for fairness in criminal cases are not rigid principle can be applied for with only allow review once, especially when the existence of the new State were found (novum). It is thus contrary to the principle of fairness that is so high esteem by the powers of the Justice of Indonesia to enforce law and justice [vide Article 24 paragraph (1) of the Constitution] and as a consequence of the principle of State of law; [3.17] considering that on the basis of the whole of the above considerations, according to the Court, the application for the Applicant regarding testing the constitutionality of article 268 paragraph (3) the CODE of CRIMINAL PROCEDURE is grounded according to law; 4. CONCLUSION based on the above assessment of the law and the facts, the Court concluded that: [4.1] the Court is authorized to prosecute the application for the Applicant; [2.6] The applicant has legal position (legal standing) to apply for a quo; [4.3] the subject matter of the petition of the applicant's reasoned according to law; Based on the Constitution of the Republic of Indonesia in 1945, Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia number 70 in 2011, an additional Sheet of the Republic of Indonesia Number 5226), and


89 Number 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, declare: 1. the application for the Grant applicant: 1.1. article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional sheets of the Republic of Indonesia Number 3209) is contrary to the Constitution of the Republic of Indonesia in 1945; 1.2. article 268 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional sheets of the Republic of Indonesia Number 3209) do not have binding legal force; 2. Order the loading of this ruling in the news of the Republic of Indonesia as it should be; The case was decided in the meeting of the Consultative Constitutional Judge by nine Judges, namely m. N Deputy Mochtar, speaker and interim Member, Achmad Sodiki, Ahmad Fadlil, Maria Farida Indrati Sumadi, Anwar Harjono, Usman, Hamdan Zoelva, Muhammad Alim, and Arief Hidayat, each as a member, on Monday, the date of the twenty-two, in July, the year two thousand three, spoken in the plenary session of the Constitutional Court is open to the public on Thursdays , on six, March, year two thousand fourteen, finished at 15.00 pm, spoken by eight Judges of the Constitution, namely, Hamdan Zoelva, as the Chair of the sitting member, Arief Hidayat, Ahmad Fadlil, Maria Farida Indrati Sumadi, Usman Anwar Harjono, 90, Muhammad Alim, and Patrialis Akbar, each as a member, with accompanied by Cholidin Nasir as a substitute Clerk, and attended by the Applicant/power, President of or representing the , and the House of representatives or representing. Chairman, ttd. Hamdan Zoelva members, ttd. Arief Hidayat ttd. Ahmad Fadlil Sumadi ttd. Maria Farida Indrati ttd. Usman Anwar ttd. Harjono ttd. Muhammad Alim ttd. REPLACEMENT CLERK patrialis Akbar, ttd. Cholidin Nasir