Key Benefits:
RULING Number 1/PUU-XI/2013
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and last,
dropping the ruling in case of Test Number 1 Year
1946 on the Book of Criminal Law and Law Number 8
Year 1981 on the Law of Criminal Events against the Basic Law
The State of the Republic of Indonesia in 1945, which was submitted by:
[1.2] Name: Oei Alimin Sukamto Wijaya
Job: Private
Address: Road Alert Number 98 Surabaya
In this matter based on Special Power Letter dated December 10, 2012
gives power to Muhammad Sholeh, S.H., Imam Syafi'i, S.H., Yun Suryotomo, S.H., Muhammad Achyar, S.H., Abdul Holil, S.H., Ahmad Sahid, S.H., and Adi Darmanto, S.H., Advocates at the Law Office of Sholeh and Partners address offices at Jalan Genteng Muhammadiyah Number 2B Surabaya, acting
for and in the name of the power giver;
Next is called as ------------------------------------------------------------ Applicants;
[1.3] Reading the applicant's request;
hearing the applicant's description;
hearing and reading the Government's description;
hearing and reading the statement of the House of Representatives;
Hearing the applicant's caption;
Checking the applicant 's evidence;
Reading the Government' s conclusions;
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2. SITTING LAWSUIT
[2.1] A draw that the applicant has applied with
a letter of application dated December 13, 2012 which is accepted in Kepaniteraan
Constitutional Court (subsequently called Kepaniteraan) On the date
December 13, 2012, based on the Certificate Receipt of the Number
1/PAN.MK/ 2013 and has been noted in the Book Registration Book on
on January 3, 2013 with Number 1/PUU-XI/2013, which has been corrected
with the repair of the plea and received in the Court ' s Kepaniteraan on
on February 1, 2013, which in the point describes things as
following:
CONSTITUTION OF THE CONSTITUTIONAL COURT
That the provisions of Article 24C paragraph (1) of the Constitution of 1945 state that the Court
Constitution authorities prosecute at the first and last level which
The verdict is final to test Act against the Law
Basic. Article 10 paragraph (1) of the letter a Law No. 24 of 2003 on
The Constitutional Court as amended by Law Number
8 Year 2011 on Changes to the Law No. 24 Year 2003
on the Court The Constitution (later called the MK Act) affirm that
same, that is to mention the Constitutional Court in order to prosecute in
the first and last level of which the verdict is final, among other things " testing
Act on the State Basic Law of the Republic of Indonesia
Year 1945 ", severing the dispute over the authority of a state agency that
its authority was granted by the 1945 Constitution, severing the dissolution of the political party
and severing the dispute about the outcome of the general election.
Similar enforcement was also put forward by Act Number 48 Years of 2009
of the General Judicial Court of Justice, which states: "The Constitutional Court of authority
to prosecute at first and last degree the verdict is final for"
among others " testing the Act against the Act. "Constitution of the Republic of Indonesia in 1945". While the provisions of Article 9 of the paragraph (1) Invite-
Invite Number 12 Year 2011 on the Establishment of the Act of Invitation-
Invitation states " In the event of an Act of thought contradictory
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with the Constitution of the Republic of Indonesia in 1945,
The pronunciation is performed by the Constitutional Court ";
Based on the above description, then the applicant is confident, that the Court
The Constitution is authorized. to bring to trial the testing application of this Act
at the first and final level of which the verdict is final.
B. LEGAL STANDING (LEGAL STANDING) PEMOHON 1. That Section 51 Verse (1) of the MK Act, states the applicant is the party
that considers the rights and/or its constitutional authority be harmed by
the enactment of the Act, i.e.:
a. Individual citizens of Indonesia;
b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Republic of the Republic of the Republic
Indonesia that is set in undang-Undang;
c. the public or private legal entity, or;
d. state agencies.
2. Explanation of Article 51 of Article 51 (1) of the Act of MK states that in question
with "constitutional rights" is the rights set forth in the 1945 Constitution;
3. That the applicant is a citizen of Indonesia;
4. That on 5 August there had been an act of persecution that
experienced the applicant, in which the applicant was persecuted at the Hotel Meritus Surabaya and
which carried out the act of persecution was the owner of the Surabaya Meritus Hotel
which named Haryono Winata aka Mingming. As a result of the a quo persecution,
the petitioner faces a lebam-lebam so the applicant must be opname
a few days in the hospital (vide proof P-4). 5. That after the incident the applicant went to the office
Police Sector Genteng Surabaya with the intention of wanting to report, and arrived at
the Police station at 01.00 WIB. Shortly after getting to Polsek the applicant
was told to wait in the waiting room by the Police who were on the picket, after one
(1) hour waiting for the new applicant to enter the reception room of the report
and there made a report that had been beaten by Haryono Winata alias
Mingming and at that time the report was typed and given an STPL with a Number
LP/427/VIII/2012/JATIM/RESTABES/RESTABES/SEK GTNG (vide proof P-5). After making a report ago the applicant was told to enter the investigator room for
providing advanced details relating to the report, will
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but which is very suspicious when the applicant is questioned regarding the
chronological event the Investigator does not type even also does not note
about what the Investigator is asking and what the applicant is Say.
This incident lasted until +-0600 WIB and the most
surprise, after which the applicant was told to wait in the outside waiting room
by the Investigators, and not long-lapse brother Haryono Winata arrived-
arrived and immediately entered the KANIT Rescream Polsek Genteng
Surabaya. A few years ago the applicant was told to enter and the applicant
saw Kanit Rescream easily following what was told to be by
Haryono Wiinata.
6. That after what the applicant has reported there is the most
fundamentals that make the Applicant Suspicious, where in this case there
changes the STPL Number of the Genteng Polsek that in this case is from
Number LP/427/VIII/2012/JATIM/RESTABES/SEK.GTNG changed to
Number LP/106/VIII/2012/JATIM/RESTABES/SEK.GTNG.
7. That in its development to this day the case of the applicant at Polsek
Genteng is not actionable in accordance with the SOP of the State Police
Republic of Indonesia, which is up to September 11, 2012
The applicant received letter (SP2HP) from POLSEK Genteng Surabaya with
Number B/110/IX/2012/RESCREAM (vide proof P-6) which contains about still being called extension of the investigation for 30 days, whereas
already examined 12 witnesses and the applicant already provided the information that
at the Meritus Hotel there is a CCTV that can It serves as evidence.
but Polsek genteng was impressed to rule out the issue and
showed less professional in handling the case.
8. Because of her fears, seeing as powerful and powerful Haryono Winata in
Polsek Genteng Surabaya and not understanding it, the applicant
was asked to replace the loss to Haryono Winata CS, who initially asked
Rp. 3 Billion finally dropped to Rp. 500,000,000, (five hundred million rupiah)
and the applicant was already a transfer of Rp. 200,000,000, (two hundred million
rupiah) to a Muljono Bank BCA Day account Number 3631359688 (vide proof P-7).
9. That because there is no settlement and the applicant is being blackmailed, cause
The applicant is the victim of the persecution is being asked for money as much as
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Rp.200,000,000, (two hundred million rupiah). Finally the applicant reported
the act of persecution and the presence of extortion attempts by
Haryono Winata et al to SPKT Polda East Java with STPL Number
LPB/641/VIII/2012/SPKT (vide proof P-8) dated On August 30, 2012, in the hope that the Police Department's handling of the case could be more
professional and neutral without any pressure. However, what happens instead
looks at a game pattern that's been cordinated with very
neatly by the parties that make it as if the elements of the report
The applicant is not proven that in this regard with SP2HP POLDA
JATIM Number B/1169/SP2HP-3/XI/2012/Ditreskrimum (vide proof P-9). 10.That with the more pressing the applicant seeks justice to make
Haryono's brother Winata Selaku the famous Meritus Hotel owner is immune
with the law getting sultry and trying to criminalize the applicant
in various ways The applicant must go to jail.
11.That the alleged pattern of a game is neatly for
criminalising the applicant may be reviled with the designation
The applicant is as a suspect committed by POLSEK Genteng Surabaya
with the release letter number SPG/107/IX/2012/Rescream and
SPG/123/X/2012/Rescream dated September 24, 2012 and date 09
October 2012 in the alleged unpleasant deeds (Article 335
KUHP) which in which case the pronunciation is Haryono Winata, there is no report
it created Haryono Winata with STPL Number
LP/107/VIII/2012/JATIM/RESTABES/SEK. GTNG dated August 05, 2012.
In this case the case reported Haryono Winata was extremely weak
proof, but easily the applicant could be set as
the suspect in time is not too long and also the
the handler against the applicant is to be seen in the Detention Order Letter SP.Han/123/X/2012/JATIM/RESKRIM (vide proof P-10). And it really makes the applicant feel that justice is indeed
only owned by the legal mafia and the wealthy.
12.That a neat game pattern to criminalize the applicant as well
could be reviled with the designation of the applicant as a suspect which
was done again by Polsek Genteng Surabaya with
on the release letter Number SPG/83/IX/2012/Rescream (Copy
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Terlampir) dated 11 September 2012 in the alleged unpleasant deeds [Article 335 paragraph (1) KUHP] or destruction of the goods which in this case is Hary Moeljono which is still the guy from Haryono Winata, there is a report on the STPL Number LP/105/VIII/2012/JATIM/RESTABES/SEK.GTNG dated 05 August 2012 (vide evidence P-11. In this view from the number of STPL issued by Polsek Genteng is very suspicious, because the difference
report number is only one number difference from Lap made with
The applicant (LP/105/VIII/2012/JATIM/RESTABES/SEK GTNG with
LP/106/VIII/2012/JATIM/RESTABES/SEK.GTNG) despite the fact that the applicant
is the one who first reports and no one else
makes the report. The applicant 's suspicions are further strengthened by
the fact the question STPL issues are being magically altered as already
we explain above, that' s what proves that there is interference
hands and ocnum-ocnum games which is very unprofessional and not
neutral.
13.That, the alleged pattern of criminalizing the applicant may also
be reviled with the applicant as the suspect in a case the applicant has never committed. In this case the designation as
suspects can be seen from the presence of a summons issued
POLRESTABES Surabaya Number S-Pgl/3567/X/2012/RESKRIM dated October 25, 2012, the letter is based on a report from JEnny. Kosasi aka Cucu with STPL Number LP/K/1113/IX/2012/JATIM/RESTABES.Sby dated September 07, 2012 in a crime case against decency and deed is not
fun. Where in this case the applicant has never known
Jenny Kosation let alone do as he disfigured, now the applicant
just knows it turns out Jenny Kosation aka Cucu is still one of the conspirators with Haryono Winata (vide evidence P-12).
14.That the presence of criminalising the applicant may also be seen with
the presence of terror and intimidation allegedly carried out by the TNI-AD apparatus.
In this case it was TNI-AD who carried out the terror attempt to allow the applicant to
continue the persecution report carried out by HARYONO WINATA
known to be Major Chb Sudrajat from Pa Pudik Intelstrad Kodiklat TNI-
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AD. As for the intimidation and terror it has already been reported on POM-
AD KODAM V Brawijaya East Java with the Number Aduan
TBLP/11/VI/IDIK/2012 dated 09 August 2012 and until then there has not been a follow up (vide evidence P-13).
15.That the applicant was able to call a summons from Polsek Genteng Surabaya for
a case title in the molestation case of the applicant that
no follow-up on December 10, 2012, was abruptly cancelled
by the Police Department replaced the applicant's call will be submitted to
The Prosecutor in the case of unpleasant conduct [Article 335 paragraph (1)
KUHP] over the report of HARYONO WINATA in which the applicant in this case
has already been Detained. That the invocation is very suspicious and
The applicant is afraid to be detained again, eventually the call of the December 10
not signed. And that day also the applicant was able to call to 2 from Polsek
Genteng Surabaya to be confronted with the prosecutor on Thursday
on December 13, 2012. What's going on, what's wrong with it? Is this
the corruption case that the police are so enterpassionate about and lusting to resolve
the case of the petitioner.
16.That the applicant to this day is set to be a suspect in 3
the case with a cage committing a criminal offence violates Article 335 paragraph
(1) as in (vide proof P-10, vide proof P-11 and vide proof P-12). 17.That Section 335 paragraph (1) of the Criminal Code is a rubber section that is on its way
its history becomes a tool for criminalizing any citizen to be able to
be withheld as Article 335 paragraph (1) of the Criminal Code according to Article 21 of the Criminal Code (KUHAP)
(4) the letter b is an exception to the exception of (vide bukti-10).
18.Pemapplicant only says; "hey if you dare not mucoome here (your hotel) if you dare to fight in Suramadu". The question is whether the applicant's words a quo could already be qualified as
unpleasant acts as set out in Section 335 paragraph (1)
KUHP? If it can be Article 335 of the paragraph (1) of the Criminal Code, which
lenders can be intimately connected to anyone who is considered to do the deed is not
please.
19.That with the provision of the Applicant section strongly felt the rights
the constitutionality was violated and harmed proved the applicant was ever detained
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due to the Section 335 paragraph (1) of the Criminal Code, which is corroborated by section a quo
as guaranteed by the Constitution of 1945, especially in section 28D paragraph (1)
The Basic Law of 1945. As such, in the opinion of the applicant
then the applicant has fulfilled the qualification as referred to in
the provisions of Article 51 of paragraph (1) of the letter of the MK Act.
20.That referred to the Court of Justice since the termination of No. 006 /PUU-III/
2005, dated 31 May 2005 and Putermination Number 11 /PUU-V/2007, dated 20
September 2007 as well as subsequent rulings, the establishment that
rights loss and/or constitutional authority in question
Article 51 paragraph (1) The MK bill must meet 5 (five) terms, namely: 1. the right
and/or the constitutional authority of the applicant given by UUD 1945;
2. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the testing Act; 3.
such constitutional losses must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be
is not available; 4. the presence of causal relationships (causal verband)
between the intended losses and the expiring Act
testing; 5. It is possible that with the request of a request,
then the constitutional loss as the postured will not be or no longer
occurs;
21.Thus then there are 5 (five) absolute terms that must be met in the
test the Act against UUD 1945. The first term, is
the qualification of the applicant as a citizen of Indonesia, to act as
The applicant as affirmed in Article 51 of the paragraph (1) of the MK Act. Terms
second, with the enactment of an Act of rights and/or authority
the constitutional applicant is harmed. The third term, the constitutional loss
is specific. The fourth term, the loss arises as a result of
the enactment of the Act of Begging. The fifth term, the loss
will not occur again if this request is granted.
22.That 5 (five) terms as referred to above are described again by
the Court through the Decree Number 27 /PUU-VII/2009 in formil testing
The Second Amendment of the Supreme Court Act (page 59), which
mentions as follows:
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23.From the practice of the Court (2003-2009), individual WNI, primarily payer
taxes (tax payer; vide Putermination Number 003 /PUU-I/2003) various associations and
NGO/NGOs that concern against an Act for the sake of interests
public, legal entities, local governments, state institutions, and others, by
The court is considered to have legal standing to apply
testing, either formyl or materiel, the Act against UUD 1945
(see also Lee Bridges, and friends. In " Judicial Review in
Perspective, 1995) ";
24.That based on the description the applicant stated above
proves that the applicant (the individual citizen of Indonesia)
has a legal position (legal standing) to act as the applicant
in the request of testing this Act.
25.That based on those criteria the applicant is a party that
has a causal relationship (causal verband) between the loss
constitutional by the enactment of the Act be mohoned for
being tested because of Article 335 verse (1) to the length of the phrase something else
or unpleasant treatment and something else
nor the unpleasant treatment of the Number 1 Year Act
1946 on the Code of Criminal Law (Penal Code) and Article 21 of the paragraph
(4) the letter b along the word phrase Section 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Event Law (KUHAP)
contrary to the Article 28D paragraph (1) of the Basic Law of 1945
26.That it is if it is the case a quo does not provide legal protection and
legal certainty for any citizen, whereas the applicant has a right
constitutional basis guaranteed the Basic Law of 1945. As such,
The applicant argues that the applicant has a legal position (legal
standing) as a party in the application of the Act
against the 1945 Constitution.
27.That the applicant is concerned if Article 335 paragraph (1) to the length of the phrase something
other deeds and unpleasant treatment and something
other deeds and mistreatment of the Act
Number 1 Year 1946 on the Code of Criminal Law (KUHP)
and Article 21 of the paragraph (4) of the letter b along the phrase Article 335 paragraph (1) Invite-
Invite Number 8 Year 1981 on the Event Law Act
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Criminal Justice (KUHAP) is not cancelled by the Constitutional Court, the right
Constitutional Court of the applicant guaranteed the Basic Law of 1945
factual and potential aggrieved.
B. THE SUBJECT OF THE QUERY was taken from the book titled KUHP and KUHAP Asa Mandiri print to May 7, 2007
Article 335 of the Criminal Code states;
(1) It is threatened with a prison criminal for most of the year or a fine of the most
many four thousand five hundred rupiah:
1. Anyone against the law compels others to
do, not do or let anything, by using
violence, anything else or the treatment that is not
fun, or use the threat violence, something else
or unpleasant treatment, either against the person itself
nor anyone else ".
2. Anyone forcing someone else to do, not do or
let something with the threat of pollution or contamination
written.
(2) In terms of being formulated in item 2, the crime is only prosecuted
for the complaint of the affected person.
KUHP is taken from the book titled KUHP and KUHAP convener SALAHUDIN
first print July of 2007 The Transmedia Library's publication
Article 335 paragraph (1) of the Penal Code states;
(1) It is threatened with a prison criminal for most of the year or the most fine
many four thousand five hundred rupiah:
1. Anyone against the law compels others to
do, not do or let anything, with violence,
with something else or by treatment that is not
fun, or with a threat violence, with threats
other deeds or with the threat of unpleasant treatment,
either against the person alone or anyone else.
2. Who's forcing someone else to do, not do or
let something with the threat of pollution or pollution
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written. (2) In the event referred to in number 2, the crime is prosecuted
only for the complaint of the person affected by it.
Article 21 paragraph (4) of the letter b KUHAP throughout the phrase section 335 paragraph (1) (1) The restraining order or detention continued to be performed against an
suspect or a suspected defendant committing a criminal offence
based on sufficient evidence, in the event of circumstances that elicits
the concern that the suspect or defendant will be running, damaging
or eliminating evidence items and or repeating a felony.
(2) Detention or follow-up detention is performed by investigators or prosecutors
general of the suspect or the defendant by giving a warrant
the detention or assignment of a judge who has noted the identity of the suspect
or the defendant and mention the reason for the detention as well as the brief description
the crime of the accused or dismayed as well as the place he
was detained.
(3) A warrant for a restraining order or continued detention or designation
the judge as referred to in the paragraph (2) must be provided to
her family.
(4) Such detention may only be imposed against a suspect or
a defendant who committed a criminal and or an experiment or
granting aid in such a felony in the case of:
a. The felon was threatened with a prison criminal five years or more;
b. As defined in Section 282 paragraph (3), Section 296,
Section 335 paragraph (1), Section 351 paragraph (1), Section 353 paragraph (1), Section 372, Section 378, Section 379, Section 453, Section 454, Section 454, Section 455, Section 459, Section 459, Section 480
and Section 3 506 Criminal Law Code, Article 25 and Article 26
Rechtenordonnantie (violation of Customs Ordonancy and Excise,
last modified with Staatsblad 1931 Number 471), Section 1, Article 2
and Article 4 of the Act Immigration Criminal Act (Act
Number 8 Drt. In 1955, the State Sheet of 1955 Number 8), Article
36 verses (7), Article 41, Article 42, Article 43, Article 43, Article 47 and Article 48 of the Invite-
invite Number 9 Year 1976 on Drugs (State Sheet
1976 Number 37, Extra Sheet State Number 3086).
Next Constitution of 1945 reads:
The passage of Article 28 D paragraph (1):
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"Everyone is entitled to the recognition, assurance, protection and certainty of a fair law, as well as the same treatment before the law".
1. That of the Penal Code, though promulred in 1946, was actually called the Code of Penal Code of Indonesia (KUHP) from the Dutch colonial era in Indonesia (Nederlandsch Indie), so
If there is a difference only on the use of the term and sentence arrangement
only.
2. That it must be recognized in the contents of the Penal Code, many of which are already
obsolete, and are no longer compatible with natural conditions
democracy now. But the fact that our government has not been able to do
a revision of the Criminal Code, even if it was promised there would be a revision but the fact is not
has ever happened.
3. That in criminal law an unpleasant conduct as
has been called above is set in Chapter XVIII on Crime Against
Independence Persons Section 335 paragraph (1) of the Code of Criminal Law
that is rumour reads: (1). Threatened with the longest prison criminal
1 (one) year or a fine of at least three hundred rupiah: anyone who
against the law forces others to commit or allow
something, by using force, something else or
unpleasant treatment, or by using a threat
violence, something else or unpleasant treatment,
either against the person himself or someone else.
4. Unflattering things as set by Article 335
paragraph (1) The Code of Criminal Law can be held detention
despite the threat of his sentence at least 1 (one) year. This
as set out in Section 21 of the (4) letter (b) of the Code
The Criminal Event Law (KUHAP). The qualifying qualification of a suspect
in a matter of unpleasant conduct still refers to a
legal reason as it is suspected to be a criminal offence based on evidence
that is sufficient, in the event of circumstances which Raises concerns
suspects or defendants will flee, damage or eliminate
evidence and or repeat the criminal acts. In the warrant
his detention, an institution of interest (investigators, the public prosecutor or
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judges) must specify the reason for his detention. Without any mention of the reason
detention, then the detention being committed is a legal flaw and can be in
preperadiadvertised.
5. That the practice of law, a suspect in the matter of conduct is not
fun generally often carried out incarceration as experienced
by the applicant. The interest in conducting detention is a trait
that is very subjective that is measured under the valid
subjective authority. Because it is subjective in the end many commandments
the detention is issued which does not correspond to the detention reasons
as contemplated and regulated by Article 21 of the paragraph (4) of the letter b KUHAP. That,
Article 21 of the paragraph (4) of the letter KUHAP gives full power to
the investigator, the public prosecutor and the judge to conduct the detention, whereas
the threat is only one year. And this section clearly does not contain
legal protection and legal certainty to the applicant as in
Guarantee in Article 28D paragraph (1) of the 1945 Constitution.
6. That, in the context of the incarceration experienced by the applicant [pursuant to Article
21 verse (4) the letter b KUHAP] is certainly very subjective and discriminatory that
was done by Polsek Genteng Surabaya. First, the molestation report
experienced by the applicant was completely unactionable by Polsek
Genteng Surabaya. While Haryono Winata's report was immediately responded
quickly with the request of the applicant Breaking Article 335 paragraph (1) of the Criminal Code
due to the applicant saying the words "If you dare not mucoome me in your hotel let us duel in Suramadu". While the words were spoken after the applicant was mauled by Haryono Winata to the round
were beaten, meaning the words of money were spoken by the petitioner not suddenly. So
reasonable applicant issued the words a quo. The applicant considers that
Article 21 paragraph (4) of the letter b of the KUHAP clearly does not provide warranty and
recognition of the applicant's right as a protected Suspect
for not having to be detained. Thus, the applicant considers that Article 21 of the paragraph
(4) of the letter KUHAP is clearly contrary to Article 28D of the paragraph (1) of the 1945 Constitution.
7. That according to Supriyadi Widodo Eddyono, S.H. in an online legal clinic dated November 8, 2010 said Article 335 paragraph (1) of the Criminal Code requires the fulfillment of two elements of "use of force"
or "threat of violence". This delicary proof is enough to keep it up.
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one of the two elements. In practice, the application of Article 335
paragraph (1) of the Penal Code by the Supreme Court of R.I. (MA) will emphasize that
the interpretation of "compulsion elements" as the primary element must exist
in an unpleasant series of deeds. The element of coercion,
according to MA, is not always translated in the form of physical coercion, but it can be
also in the form of psychic coercion.
8. In the Decree 675 K/Pid/1985 dated 4 August 1987 which
corrects the free ruling (vrijspraak) of the Court of State Ende Number
15 /Pid.B/ 1984 dated 26 March 1985, MA has qualified the deed
criminal Which is not fun is: " With something done,
against the law forces people to let something." Meaning, there
a series of defendants ' actions that are against the law giving birth
result of another person or victim Didn't do anything to be forced to.
letting something happen. He didn't agree or didn't want to.
That, but she can't.
has psychic ability and psychic ability. refusing, obstructing,
shy of the occurrence of acts that are against such laws.
9. That if understanding the judgment of the Supreme Court is above, of course
the element delik unpleasant deeds should require an element
compulsion, whether it be physical coercion or psychic coercion. That in the case
The applicant, at all times the applicant does not do compulsion either psychic nor
the physical coercion. The applicant's words were only the effect of his being reconstructed by
reporting, and why Polsek Genteng Surabaya had already considered the word
The applicant was already in the element of unpleasant conduct. Finally
The applicant comes to the conclusion if Section 335 paragraph (1) of the Criminal Code (1) is completely
section of the rubber disadvantased the right of the applicant as set in
Article 28D paragraph (1) of the 1945 Constitution.
10.That in practice, the police tend to easily apply the Article
335 paragraph (1) of the Criminal Code under the pretext of proof later on court matters. If
already like this suspect's right to be powerless. In addition to the
article 21 of the paragraph (4) of the letter b KUHAP, Section 335 paragraph (1) is the exception of the "exception", which may be held in detention. The applicant became a victim of the subjectivity
investigator Polsek Genteng Surabaya. Where only the petitioner
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is considered unpleasing to the por, the applicant is detained by Polsek Genteng
Surabaya. Is n' t that so section 335 paragraph (1) of the Criminal Code and section 21 of the paragraph
(4) the letter b KUHAP violates the rights of the applicant guaranteed by Article
28D paragraph (1) of the 1945 Constitution.
11.In law or in the sense of criminal law, the deed is not
fun can be fatal for the culprit if the deed is not
The fun is not preferred or unacceptable to the party
being the victim of an unpleasant act, though the result of
does not harm the soul of the victim or sufferer, but there
a feeling that the sufferer or victim
already has.
could report to the police.
12.That it has become apparent the legal norm delik the deed no fun
very broad meaning like rubber, it can be drawn everywhere. It should be
in criminal law a criminal delik must clearly mean the meaning of its understanding, for example
theft is the stuff of who takes things, all of which or in part to others, with the intent to be owned by against the law, threatened with theft, with a five-year-old prison criminal or a penal fine of at least nine hundred rupiah. In the rumour deliciness of theft is very clear, what it takes is not his own property, with the intention of having
against the law. As well as a delical of embezzlement crimes
also the elements are clear, Whoever by accident and against the law has something entirely or partially belongs to someone else, but which is in his power. Not for crimes being threatened with embezzlement, with a prison criminal for the longest four years or a penal fine of at least nine hundred rupiah. It is very different from an unpleasant act that anyone considered doing an unpleasant deed could
reportedly violate Article 335 of the paragraph (1) KUHP.
13.That the fact shows investigators if it wants to hold a temporary suspect
His passport threat is not up to 5 years, then the investigator will slip
Article 335 paragraph (1) of the Criminal Code to allow the suspect to be detained. Because of the article
anything if it is echoed with Article 335 paragraph (1) of the Criminal Code to
the comfort. This can be seen in case the applicant is redeemed.
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Polrestabes Surabaya which is accused of criminal Article 281, because
threat not up to 5 (five) years, finally supplemented Article 335 paragraph (1)
KUHP (vide proof P-12) 14.That in Prof. J.E.'s opinion Sahetapy, SH., MA., as quoted
in Constitutional Court Number 013-022/PUU-IV/2006
states that Article V Act No. 1 of 1946 is the tester stone
about the relevance and the raison d' etre post-section KUHCriminal referred to
stating " The laws of the criminal law entirely or partly
now cannot be run, or contrary to the position
The Republic of Indonesia as an independent state, or has no meaning anymore,
must be considered entirely or partially temporary. not applicable ";
15.That, the provisions of Article 21 of the paragraph (4) of the letter b state that the deed
is not pleasant in the category of crime that can be withheld. This article
clearly has harmed the constitutional rights of the applicant. If you want to be fair,
the threat of Article 335 paragraph (1) of the Criminal Code is only one year. Then the ideal is not able
detained. However, because of the Code 21 paragraph (4) the letter b gives
an exception. Finally, the petitioner was detained by the Genteng Polsek. It should be the phrase
an exception to the letter b does not include Section 335 verses (1). Its implementation
is extremely dangerous, where this section is often used by Investigators and Prosecutors
The General Prosecuting as the last section to ensnare the actions of the perpetrator. Try
imagine, if any act of origin isn't pleasing someone else
The culprit can be held? How many people can be detained may be because
things are trivial as long as "unpleasant" others. This is the case
that occurred to the applicant. Where is the legal protection of the country
as guaranteed by Article 28D paragraph (1) of the Constitution of 1945?
16.That the delik of Article 335 verse (1) of the Criminal Code states, whose goods are
against the law forces others to perform, do not perform or
allow something by using violence or threats of violence.
Unless Throughout the phrase word of something else or unpleasant treatment and something else or unpleasant treatment that does not contain legal protection and legal certainty as guaranteed in Section 28D. verse (1) UUD 1945.
That with the applicant in which the issue is not clear,
makes the applicant very harmed. If it turns out in the applicant's court
17
not guilty, how with the loss of the applicant ever detained
by Polsek Genteng Surabaya, who gave the damages up?
17.That according to the prevailing prevailing doctrine "power tends to corrupt,
absolute power corupt absolutely", due to police, prosecutors and judges
is given full authority to be able to withstand if the suspect/defendant
expected to violate Article 335 paragraph (1) KUHP, then the tendency of the apparatus
law enforcement will abuse its power more openly. Apparatus
law enforcement is easily committed arbitrarily to
the authority is owned and attached to his post. This is proven
as experienced by the applicant, is not constitutional rights
The applicant is protected under Article 28D paragraph (1) 1945 so ignored.
18.That the control Ultimum Remedium, (last means) is pertinated with
the issue of how to determine can be criminalised or incriminalised
an act committed intentionally or by negligence. In
the case experienced by the applicant, Polsek Genteng Surabaya never
acting fair let alone try to reconcile the petitioner, instead the applicant's position
was put on hold and then taken prisoner. Thus being a suspect with the same article
i.e. Section 335 paragraph (1) KUHP.
19.Kesconclusions of all unsavable treatment can be denounced to
the police force, if ever needed police investigators can
conduct detention against the suspect as experienced by the applicant.
Anything What is the category of unpleasant treatment?
The answer is all deeds that are not accepted by the complainants or that
it does not please her heart. This is where the delical weakness of Article 335
paragraph (1) of the Penal Code along the phrase something else or unpleasant treatment and something else or unpleasant treatment and the weakness of Article 21 of the verse (4) letter b throughout the phrase Article 335 paragraph (1) KUHAP.
20.That After being reviled and read carefully the contents of Article 335 of the paragraph
(1) throughout the phrase something else or unpleasant treatment and something else is unpleasant and unpleasant treatment. Law No. 1 of 1946 on the Code of Criminal Law (Penal Code) and Article 21 of the paragraph (4) letter b
throughout the phrase Article 335 paragraph (1) Act No. 8 Year 1981
18
on the Code of Criminal Proceed Law (KUHAP) does not meet
the sense of justice both in the glass of the constitution and in the glasses
the sociologist for the applicant.
21.That Article 335 paragraph (1) to the the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Code of Criminal Law (KUHP) and the Article
21 paragraph (4) the letter b throughout the phrase Article 335 paragraph (1) Act No. 8 Year 1981 about the Criminal Event Law Code
(KUHAP) reflects the distinction of position and treatment (unequal
treatment), injustice (injustice), legal uncertainty (legal uncertainty).
Would not that it be so reasonable that the applicant considers the following article
a quo contrary to Article 28D of the paragraph (1) of the Basic Law of 1945
22.That based on the description above, it is clear the existence of Article 335
paragraph (1) throughout the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Penal Code of Laws (KUHP) and Article 21 paragraph (4) of the letter b
throughout the phrase Section 335 paragraph (1) Act No. 8 Year 1981 on the Book of Criminal Event Law (KUHAP) contradictory
with Article 28D of paragraph (1) of the Basic Law of 1945.
23.So thus the provisions of Article 335 paragraph (1) throughout the word phrase
something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 1946 on the Code of Law
Criminal (Criminal Code) and Article 21 paragraph (4) of the letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Event Law (KUHAP) must be stated. "does not have binding legal power".
24.That the applicant is now in a state of fear of depression
against the Police call, by fear of being held. Although there is a
call of stage to II by Polsek Genteng Surabaya to be confronted with
The Prosecutor on Thursday 13 December 2012. For the sake of
the protection and legal certainty against the applicant.
19
The applicant requested to the chairman of the Constitutional Court for the hearing of the case
a quo accelerated in order for legal certainty to the applicant.
D. PETITUM Based on everything described above, the applicant pleads for the Court
The Constitution gives its amused verdict as follows:
1. Grant the applicant's request entirely;
2. Stating:
Article 335 paragraph (1) to the length of the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Book of Criminal Law (Penal Code) and Article 21 paragraph (4)
letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Events Law (KUHAP)
contradictory Article 28D paragraph (1) The Basic Law of 1945.
3. Stating:
Article 335 paragraph (1) to the length of the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Book of The Criminal Law (KUHP) and Article 21 of the paragraph (4)
letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Penal Code Law (KUHAP) not
has the power of the law tying;
4. Ordering the loading of this ruling in the Republic of the Republic of Indonesia News
as it should be;
Or, if the Constitutional Court argues otherwise, please a fair ruling-
be fair (ex aequo et bono).
[2.2] weighed that to prove its control, the applicant has
submitted a letter of letter proof/writing that was given a proof of P-1 to
P-15 proof, as follows: 1 Proof of P-1 Photocopy of the Basic Law Country of the Republic of Indonesia
In 1945; 2 Evidence P-2 Photocopies of the Code of Criminal Proceed Law (KUHAP); 3 Evidence P-3 Photocopies of the Code of Criminal Law (KUHP);
20
4 Evidence P-4 Requesting Photos With Lebam Conditions; 5 Evidence P-5 Photocopy of POLRI EAST JAVA RESORT CITY
LARGE SURABAYA SECTOR GENTENG SECTOR
Police LP/427/VIII/2012/JATIM/RESTABES/SEK GTNG
5 August 2012; 6 Evidence P-6 Photocopy of the POLRI AREA EAST JAVA RESORT
LARGE SURABAYA SECTOR GENTENG Number
B/110/IX/2012/Rescream on September 11, 2012; 7 Evidence P-7 Photocopy Evidence Deposits Central Asia; 8 Evidence P-8 Photocopy of the Republic of Indonesia State Police
EAST JAVA REGION Evidence Report with STPL
LPB/64/VIII/2012/SPKT; 9 Evidence P-9 Photocopy of the State Police Department of the Republic of Indonesia
JAWATIMUR DIRECTORATE OF THE CRIMINAL RESERSE
UMUM Number B/1169/SP2HP-3/XI/2012/Ditreskrimun dated 2
November 2012; 10 Evidence P-10 Photocopy of the POLRI AREA EAST JAVA RESORT
LARGE SURABAYA SECTOR GENTENG Number
SP.Han/123/X/2012/Rescream dated October 15, 2012; 11 Evidence P-11 Photocopied Mail Call Number SPG/83/IX/2012/Rescream
date, 11 September 2012 East Java Regional Police Resort
The Big City Surabaya Sector Genteng; 12 Evidence P-12 Photocopy of the State Police of the Republic of Indonesia
REGIONS OF JAVA EAST RESORT CITY MAJOR SURABAYA
Number S-Pgl/3567-A/X/2012/Satrescream dated October 25
2012; 13 Evidence P-13 Photocopy Letter POM-AD KODAM V Brawijaya East Java
Aduan number TBLP/11/VI/IDIK/2012 dated 09 August
2012; 14 Evidence P-14 Photocopy Letter of POLRI EAST JAVA RESORT CITY
LARGE SURABAYA SECTOR GENTENG MAIL CALL
No. SPG/123/X/2012/Rescream on 09 October 2012; 15 Evidence P-15 Photocopy KTP ID Number 09:3171050612700006
21
In addition, the applicant also submitted an expert namely
Dr. M. Sholehuddin, S.H., M.H., which he had heard under oath in the February 21, 2013 trial, which described as
following:
Dr. Sholehuddin, S.H., M.H. thought about what was requested
to the expert on the issues of the delict formula
contained in Article 335 of the paragraph (1) of the Criminal Code.
First experts tell a layman the law once delivered
to the expert, who once boarded an economic train from Surabaya to Jakarta,
for his seat facing someone taking off his shoes,
Take off his shoes and then get his socks off because it might stink and
know there's a cop who took him when he stopped at the station. That cop
took him in and thought it or accused him of doing nothing
fun because of the smell. Then, the expert friend thought, though he was a layman
the law due to the discipline of Indonesian language and literature. " Lho, if you take off
shoes only then smell, it can be reported to the police with no
fun, when I was not happy to ride the train that was
too loud, yes. It also makes my displeasure, "he said," but what can
be reported? ";
The story of this story then reminds the expert that indeed in the practices
the law in Indonesia Article 335 paragraph (1) of the Penal Code is often said to be The following
criminal acts are no fun. When it is seen from
the sentence structure, it is misused actually because of a copy of the Dutch
it onaangename bejegening. It was taken just as just that onaangename,
not fun, with no regard for the word of his connection
bejegening which means treat. So actually treat
people are unpleas, not unpleasant deeds because
unpleasant deeds are high and objectionable
low. So that everything forms of deeds that we perceive
subjective, relative, unpleasant, it could be included.
The idea that in the judicial practice in Indonesia is mainly when the process is at the stage
the investigation process as a front-runner in the affirmation of criminal law,
such practices arose and were often asked to experts because of experts
22
coincidentally is often asked to provide expert information, either at the BAP
nor at the trial. While it was actually wrong, a fatal mistake would be
resulting in a multitapation later;
the point that the actual Article 335 of the Criminal Code is in Nederland Wetbook
van Straafrecht, is in article 284 and there is no listed the phrase or
element delik as an alternative delik about unpleasant deeds
or with the threat of unpleasant deeds. So in article 284
Nederland Wetbook van Straafrecht, does not list it and only
at Nederland Wetbook van Straafrecht for Hindi for Indonesia, it exists.
The idea that the expert is saying In fact, it's not an act.
It's fun, but treating people isn't fun, this
is different. Moreover, the different is the sanal, if in the Dutch Penal Code it is 9
the prison month, but in the Indonesian Penal Code WVS Indonesia 1 year, it
is the difference. Then here because of the developments in practices like this, Prof. Dr.
Andi Hamzah once delivered when the meeting of the Law Teaching Association
Criminal and Indonesian Criminology then in practices
developments And there is a law among the law. One thing that pretenses
erroneously to the meaning of the deeds is unpleasant and up to now
continues, even Prof. Dr. Andi Hamzah proposes that the element delik
or the phrase of the act is unpleasant or with the threat
unpleasant deeds were removed in the concept of the national Criminal Code bill
and then on the final concept of the element/the phrase indeed
omitted.
The idea that the final concept of the 2005 Penal Code bill is already on the table
President. Prof. Muladi was requested to be present to explain but until
now it has not been discussed which bill of the national Criminal Code was. The concept of the Criminal Code bill
national, the phrase was removed. This is indeed for the first time a proposal or
delivery of Prof. Andi Hamzah, as it is considered often abused
and in principle of criminal law, contrary to the principle of criminal law
must contain the delik of that delicity is lex scripta, lex certa, and lex stricta.
Not even Prof. Andi Hamzah has ever delivered, one day in 1997
came to him a man named Rusdi at Ujung Pandang
delivering a police summons that was explained in it.
It's no fun because it's the land he's got so that
23
The fence is blocking the view from other people ' s lands. It was reported to
the police, there was a no-fun call letter. Then he
astonisted, this preclude that view is not the realm of criminal law, that is the realm
the civil law. Why being put into a criminal act is not
fun.
Later, according to the expert that the problem was
normanya, the norm is set in that phrase. That's what's giving rise to the
problem-problem. So it's not in his interpretation, it's the norm that
raises the problem so that bias, ambiguity, multitapism, etc.
is actually contrary to the principles of criminal law.
The related subjects with Article 21 of the KUHAP, the laws of the law. The legal criminal exists in Section 21
paragraph (1) the letter b of the Criminal Code that lists the phrase Article 335 paragraph (1), can
be withheld, so in the practice of expert experience, often Article 335 paragraph (1)
the application of the motive is for the culprit. can be withheld, so that any
form of deeds is considered to be not fun that subjectate it
high, basket trash terms in legal practice. It becomes one
an expert problem that can be concluded that the phrase there is one element delik in the Article
335 paragraph (1) of the Criminal Code (1) of the other or unpleasant acts,
or with the threat of non-action fun is too subjective
so high that it is biased, multitafsir, that is contrary to principle-
the principle of criminal law and therefore in the latter case of the Criminal Code bill
the phrase is gone unwell Again.
[2.3] A draw that against the request of the applicant, the Government
indicated on February 21, 2013, and has
submitted the written caption received by the Court of Justice
on May 28, 2013 at the point of explaining it as follows:
1. The Constitution of 1945 also expressly acknowledges that it is an honor, as well.
dignity, as a constitutional right and therefore protected by
the constitution. Article 28G paragraph (1) of the 1945 Constitution reads, " Every person is entitled to
personal protection, family, honor, dignity, and property
under his power, and entitled to a sense of safety and protection.
of the threat of fear to do or not to do something
is a fundamental right ". While in verse (2)-his is asserted, " Every man
24
reserves the right to be free from torture or degrading treatment of degrees
human dignity and entitled to obtain political asylum from another country"
2. Understanding the legal norm in Article 335 paragraph (1) of the Criminal Code must be placed
as a single entity of the criminal law norms contained in the chapter and the section
of the Section 335. Article 335 of the Penal Code is contained in Chapter XVIII on
The Crime Against the Independence of People. That is, the legal norm is loaded
in Article 335 of the Criminal Code as one of the criminal legal norms that contains
a ban for performing certain acts that threaten independence
people.
3. The criminal law contained in Chapter XVIII is to protect
against the independence of people by all its forms and modes.
The ministry of the person needs to be protected by the law (contained in the regulations
laws) and the prohibition of doing deeds that attack
to the independence of people (loaded in criminal law), because
People ' s independence has been guaranteed by the 1945 Constitution.
4. Thus, any form of action that attacks the honor or
good name, freedom, makes people afraid to do or not to do,
physically attack, and acts of the kind that are at its core
attack People's independence is prohibited and the ban
is poured in various laws, including in
the Penal Code contained in the Chapter XVIII. The legal norm is contained in
Article 335 of the Criminal Code is one part of the effort to give
protection against people ' s independence.
5. That the formulation of Article 335 of the Criminal Code, either as a whole, or
in particular Section 335 paragraph (1) to 1 Penal Code, is a delicality
that is formile that any violation complies with the delicality
that is, then The felon has been voltoid (sufficient formula
delik), so that the formulation is more a prevention that aims
to protect individual people as victims of the perpetrators of the crime.
6. That the core formula of a delik (delicts bestanddelen) Section 335 of the Criminal Code,
is:
a. The perpetrator is whose goods, means any person (person) who performs the deed is capable of being responsible according to the law.
25
b. The form of the deed is forcing, where the "force" is telling people to do something (or not
do something) so that the person does something (or does not
perform something) as opposed to its own will (R. Soesilo).
c. The object was people, that the force forced it to be addressed to the person.
d. Performed with against the law, in short was a deed in defiance of the law both objective and objective.
in the subjective sense and both written and unwritten laws (see
Arrest HR January 6, 1905 and Arrest H.R. 31 January 1919).
e. How to do deeds (alternatively), which is done well:
1) with violence; for violent elements, see Section 89 of the Criminal Code, where being equated by violence is making people
fainting or helpless again .. where according to R. Soesilo, "not
powerless" means no power or power at all
so it cannot hold any resistance or with other acts nor with unpleasant deeds.
2) with the threat of violence or with the threat of other actions nor with the threat of unpleasant conduct.
f. The purpose of the creator does the work (alternate):
1) the person or someone else to do something. 2) that person or someone else in order not to do something. 3) that person or someone else is letting something.
7. That further formulation of the provisions of the law as
is formulated in Article 21 of the letter b of the KUHAP, it is a
policy in the application of a law of positive (materiel law) to
in formyl law. Thus, in the presence of formyl law a quo
the material law can be enforced, and the formulation of the provisions of Article 21 paragraph (4)
the letter b of the KUHAP as above is more repressive and
formulated. limitative as a guide to law enforcement apparatus
(investigators and the public prosecutor) in conducting a restraining act.
8. It is clear that Article 335 of the paragraph (1) of the Criminal Code is intended
clearly and bright to protect people's independence and strengthen the norm
the laws of the constitution as contained under Article 28G of the Constitution of 1945. Norm of law
26
The criminal confirming constitutional norms is constitutional and must
be maintained. That in the practice practices of the a quo provision is not
regardless of the obstacles or obstacles that may be encountered
law enforcement officials but that does not make the a quo article
contrary to the provisions of the Constitution of the Republic of the Republic
Indonesia Year 1945.
9. That up to the current article a quo, still applies. This is in line
with the asas presumptio iustae causa, that the laws
remain in effect for the rest of the revocation.
[2.4] weighed that against the request of the applicant, the House of Representatives
The people gave a statement in the trial on February 21,
2013 and had submitted the written caption received by Kepaniteraan
The court on March 26, 2013, at the point of explaining it
following:
The applicant against the opinion of the applicant who expressed the threat of punishment The action
is not pleasant as referred to in Section 335 paragraph (1) of the Criminal Code
only 1 (one) year it is ideally not to be withheld, and that
is considered the applicant there is no legal protection from the state as
guaranteed in Article 28D paragraph (1) of the Constitution of 1945. The DPR provides the following
as follows:
a. Article 21 of the KUHAP already clearly governs that a person suspects
or a defendant may be held not only based on consideration
objectives such as based on sufficient evidence, punitive measures 5 (five)
years or more and certain types of criminal acts as
listed in Section 21 of the paragraph (4) KUHAP, will but incarceration against
suspects or defendants may also be based on subjective considerations
law enforcement as set forth in Article 21 of the paragraph (1) KUHAP
ie: In terms of the circumstances that inflict The concern that the suspect
or the accused will escape, damage or remove any evidence
and/or repeat the criminal act.
b. That in addition to Article 21 of the KUHAP that authorizes
law enforcement to conduct detentions against suspects or
defendants based on objective considerations and/or subjectives, KUHAP
also set the legal effort The pretrial that can be done by
27
suspects, defendants, families or their families who feel aggrieved by
the presence of a restraining order by law enforcement as
is feared by the applicant. The legal effort is set up in Article BAB
X, Article 77 of the letter a KUHAP which reads as follows: " Court
the country is authorized to check and disconnect, in accordance with the provisions
which is set in This legislation is about:
a. lawful or illegal arrest, detention, inquiry termination or
termination of prosecution ";
c. That the pretrial effort as set in the Criminal Code is
one of the forms of legal protection to the suspect or
the accused who felt harmed by the act of imprisonment by enforage
the law. For this reason it has been in line and not contradictory
with the provisions of Article 28D paragraph (1) of the 1945 Constitution
The terms of the description and explanation as described above,
the provisions of Article 335 paragraph (1) The Penal Code, and Article 21 of the verse (4) of the letter b KUHAP are not
contrary to the 1945 Constitution.
Thus the House statement in the case trial Number 1/PUU-
XI/2013 may this description be a matter of consideration for the Majleis
The Supreme Court of Justice is in the check, discharges and prosecuting Perkara
a quo with the ruling:
1. Overall House Description;
2. Stating the provisions of Section 335 paragraph (1) of the Penal Code and Section 21 of the paragraph
(4) letter b of the Law No. 8 of 1981 on Criminal Event Law
not contradictory with the provisions of the Constitution of the Republic of the Republic of the Republic
Indonesia 1945.
3. Stating the provisions of Article 335 paragraph (1) of the Penal Code and Section 21 of the paragraph
(4) Act B of the Law No. 8 of 1981 on Criminal Events Law
remains a binding legal force.
[2.5] A draw that the Government has delivering a written conclusion
received in the Court of Justice on May 28, 2013 which in
still remains on its attachment;
[2.6] weighed that in order to shorten the description in this ruling,
Everything that happened at the trial was quite appointed in the news of the show
28
the trial, which is one unseparable unity with
this ruling;
3. LEGAL CONSIDERATIONS
[3.1] A draw that the main legal issue of the applicant is
testing of the constitutionality of Article 335 (1) paragraph 1 of the Law No. 1
of 1946 on the Laws of the Criminal Law or the Book Law Law
Criminal juncto Act of the Republic of Indonesia Number 73 Year 1958 on
Declaring the Law No. 1 Year 1946 Republic
Indonesia on Criminal Law Regulation For The Whole Region Republic
Indonesia And Amend The Book Of Criminal Law (Sheet
Country number 127 in 1958, additional state sheet No. 1660 Year
1958, subsequently called KUHP) stated, " Whose stuff
against the law forces others to do, not do or
let something, by using violence, something else
nor unpleasant treatment, or by using the threat
violence, something else or unpleasant treatment,
either against the person himself or someone else;"throughout the phrase, " something else or the treatment unpleasant " and Section 21 paragraph (4) of the letter b Stating, "The arrest may only be imposed
against a suspect or a defendant committing a felony and or
trial and assistance in such a criminal act in case of: ...
. As defined in Section 282 paragraph (3), Section 296,
Section 335 paragraph (1), Section 351 of the paragraph (1), Section 353 paragraph (1), Section 372, Section 378, Section 379, Section 453, Section 454, Section 455, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459 Section
506 The Code of Criminal Law, Section 25 and Section 26
Rechtenordonnantie (violation of the Customs and Excise Ordinance, last
amended with Staatsblad in 1931 Number 471), Section 1, Article 2 and Article 4
The Immigration Penal Code Act (Law Number 8 Drt. Years
1955, State Sheet of 1955 Number 8), Article 36 of the paragraph (7), Article 41, Article
42, Article 43, Article 47, and Section 48 Undangundang Number 9 Year 1976
on Drugs (State Sheet of 1976 Number 37, Tambähan
Country Sheet Number 3086)"throughout the phrase,"Article 335 paragraph (1) " Invite-Invite Number 8 Year 1981 on the Criminal Event Law Code
29
(sheet state of the Republic of Indonesia in 1981 No. 76, subsequently called
KUHAP) against Article 28D of the paragraph (1) of the Constitution of the Republic of the Republic
Indonesia in 1945 (subsequently called UUD 1945) which stated:
Section 28D paragraph (1):
"Everyone is entitled to the recognition, guarantee, protection, and legal certainty
the fair as well as the same conduct before the law"
[3.2] Draw that before considering the subject of the plea,
The Constitutional Court (later called the Court) was first going
considering the following:
a. The Court's authority to prosecute a quo;
b. Legal standing (legal standing) Applicant;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution, Article 10
paragraph (1) letter a Law Number 24 of 2003 on the Court
The Constitution as amended by Act Number 8 of the Year
2011 on Changes to the Law Number 24 Year 2003 concerning
Court Constitution (State Of The Republic of Indonesia Year 2011 Number
70, Additional List of State of the Republic of Indonesia Number 5226, next
called Act MK), Article 29 paragraph (1) letter a Law No. 48 Year 2009
on the Power of Justice (State Sheet of the Republic of Indonesia Year
2009 Number 157, Indonesia Republic of Indonesia Number 5076),
one of the Court's authority is to prosecute at the first level
and the final on which the verdict is final to test the Act
against the 1945 Constitution;
[3.4] weighed that by due to the applicant's request regarding
materiel testing Bill, in casu KUHP and KUHAP against UUD
1945 then the Court of Justice judges the plea a quo;
30
Legal Standing (Legal Standing) The applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act, which may
act as the applicant in testing an Act against
UUD 1945 is those who regard the right and/or authority
its constitutionality is harmed by the enactment of the required Act
testing, i.e.:
a. Individual citizens of Indonesia, including groups of people
have shared interests;
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against
The 1945 Constitution must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the required Act
testing;
[3.6] It is also that the Court has since the Decree No. 006 /PUU-
III/2005, dated 31 May 2005 and Putermination Number 11 /PUU-V/2007, dated
September 20, 2007 and subsequent rulings have established that
loss of rights and/or constitutional authority as referred to in
Article 51 paragraph (1) The MK bill must meet five terms, namely:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or the constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific and actual or at least a potential that according to reasoning
which is reasonable to be certain will occur;
31
d. Due (causal verband) relationship between losses referred to
by the enactment of the testing Act;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postured is not
will or no longer occur;
[3.7] Draw that the applicant is a personal nationals
Indonesia that currently has been designated as a suspect by the Surabaya Polres
with S-Pgl/3567/X/2012/RESKRIM as the applicant is considered
has done an unpleasant deed only because The applicant
has utted the words " hey if you dare not be mucooing I am here, if
dare to fight in Suramadu", under Section 335 paragraph (1) of the Criminal Code and
Section 21 of the paragraph (4) of the letter b KUHAP;
That the applicant assumes that it has been harmed by his constitutional right
to obtain recognition, warranty, protection, and legal certainty
fair as well as the same treatment before the law by the enactment of the Article
335 paragraph (1) of the Criminal Code, " Something else or the treatment
which is not fun " and Section 21 paragraph (4) of the letter b KUHAP throughout the phrase,
"Article 335 verse (1)". According to the applicant, both sections a quo have harmed the rights
the constitutional applicant guaranteed by the Constitution of 1945 in particular Article 28D paragraph (1)
Constitution of 1945, as it contains obscure, biased, multi-letter norms of law.
interprets, elicits obscurity, unfair treatment, different treatment
in the face of the law, and of discriminatory treatment. With the enactment of the a quo,
The applicant as an established individual of the Indonesian citizen
becomes a suspect as it is deemed to have committed unpleasant conduct
aggrieved on his constitutional rights to obtain warranty, protection, and
the fair legal certainty as well as the same treatment before the law;
According to the applicant the norm contained in Section 335 paragraph (1)
KUHP throughout the phrase, " Something else. nor the treatment
please " and Article 21 of the paragraph (4) letter b KUHAP throughout the phrase, "Article 335
paragraph (1)" is highly biased, multitaphsir and tends to be forced. Therefore,
according to the second applicant section a quo has harmed the constitutional right of the applicant.
32
[3.8] A draw that under the control of the applicant, according to
the Court, the applicant is eligible for legal status (legal standing)
so that the applicant may apply for a quo;
[3.9] weighed that by due to the court of competent authorities
a request a quo as well as the applicant has a legal standing (legal standing)
to apply for a quo then the Court will be next.
consider the subject of the application;
subject to the request
[3.10] A draw that the applicant is requesting to test
the constitutionality of Article 335 paragraph (1) of the Criminal Code (1) of the phrase, "Something done
other than unpleasant treatment" and Article 21 of the paragraph (4) letter b
KUHAP throughout the phrase, "Article 335 paragraph (1)" against UUD 1945, for the reason-
the reason for the lower point is:
The case in the practice of law, a suspect in the deed is not
please It is generally often held in detention as experienced by
The applicant. Interest in holding detention is a trait that
is very subjective as measured by subjective authority
anyway, because it is subjective at the end of the many restraining orders that
is issued not in accordance with the cause of detention as intended
in Section 21 of the paragraph (4) of the letter b KUHAP;
The paragraph 21 paragraph (4) of the letter b of the KUHAP gives the full power to
the investigator, the public prosecutor and the judge to conduct the detention, whereas
the threat is only one year and this section clearly does not contain
legal protection and legal certainty to the applicant as
are guaranteed in Section 28D paragraph (1) of the 1945 Constitution;
The case in the context of the detention experienced by the applicant is very subjective and
discriminatory. The legal norm of delict unpleasant deeds is very broad
meaning it is like rubber, it can be drawn everywhere. Supposed to be in law
criminal, criminal delick must clearly mean his understanding, this is very different
with the unpleasant deeds contained in the section,
33
so that anyone considered committing an unpleasant act
may reportedly violate Article 335 of paragraph (1) KUHP;
The error that is based on the description above then clearly the existence of Section 335
paragraph (1) of the Penal Code along the phrase, "Something else or the treatment
that is unpleasant and something else and other than that of the action.
treatment
unpleasant " and Section 21 paragraph (4) of the letter b KUHAP throughout the phrase,
"Section 335 paragraph (1) " contradictory to Article 28D of paragraph (1) of the 1945 Constitution.
Thus the provisions of Section 335 paragraph (1) of the Penal Code to the extent of the phrase,
"something else or unpleasant treatment" and
"something else or unpleasant treatment", and
Article 21 paragraph (4) of the letter b KUHAP throughout the phrase, " Article 335 paragraph (1) " must
be declared to have no binding legal force.
[3.11] It is balanced that to prove its control, the applicant has
submitted a letter of proof of the letter or writing that was given P-1 proof of evidence. Until
with the P-15 evidence as well as the expert M. Sholehuddin (the expert description is contained in the Perkara section), which in turn describes as
following:
a. Article 335 of the Criminal Code in Nederland Wetboek van Strafrecht, is in article 284
but does not list the phrase or the element delik as an alternative delik about
an unpleasant act or with an action threat not
fun. Such deliccs are not unpleasant, but
treating people unpleas with different sanctions,
that is in the Dutch Penal Code nine months in prison, whereas in the Criminal Code
Indonesia one year prison;
b. Prof. Dr. Andi Hamzah proposed that the element delik deed not
please or with the threat of unpleasant conduct
is omitted in the concept of the Criminal Code bill;
c. With regard to Article 21 of the KUHAP in practice often Article 335 paragraph (1)
KUHP is used by the apparatus with the purpose of the culprit to be withheld,
so that any form of deeds is considered unpleasant that
High subjectives are already like trash baskets. It becomes
one issue that the phrase in Article 335 paragraph (1) The Penal Code, which is another act.
34
or an unpleasant act, or with the threat of deeds not
is pleasing to a very high subjective that is so biased, multitafsir,
that is contrary to the principles of the criminal law;
[3.12] In a draw against the request of the applicant, the Government has
provided the oral description in the trial on February 21, 2013
and has delivered a written statement received in the Paniteraan
Court on May 28, 2013, which is completely contained in section
Sit down The case, which in the first place represents the following:
a. To understand the legal norm in Article 335 paragraph (1) of the Criminal Code (1) of the Criminal Code must
be placed as one entity of the criminal legal norm contained in
the chapter and part of the Article 335. Article 335 of the Criminal Code is contained in Chapter
XVIII on Crime Against the Independence of the People means,
The legal norm contained in Article 335 of the Criminal Code as one of the norms
the penal law containing the prohibition to perform the deed Certain
threatens the independence of people;
b. The criminal law contained in Chapter XVIII is to protect
the independence of the person with all its forms and modes.
The independence of the person needs to be protected by the law (contained in regulations
laws) and The prohibition of attacks on the offensive
the independence of the person (contained in criminal law), because the independence of the person
has been guaranteed by the 1945 Constitution;
c. Thus, any form of action that attacks the honor or
good name, freedom, makes people afraid to do or not to do,
physically attack, and acts of the kind that are at its core
attack People's independence is prohibited and the ban
is poured in various laws, including in
the Penal Code contained in the Chapter XVIII. The legal norm is contained in
Article 335 of the Criminal Code is one part of the effort to provide
protection against the independence of people;
d. The formulation of Article 335 of the Criminal Code, both as a whole, and in particular
Article 335 paragraph (1) KUHP, which is a formyl delicality that is
formyl so that any violation complies with the delicality, then
35
The felon has been voltoid (sufficient to formulate a delik), so
The formulation is more a prevention that aims to protect
the individual community as the victim of the perpetrator evil;
e. The formulation of the provisions of the law as formulated in Article 21 of the paragraph (4)
letter b KUHAP, is a policy in the application of a kaedah
positive law (materiel law) into formyl law, so that it is
kaedah law formyl a quo of materiile law can be enforced, and formulation
provisions of Article 21 paragraph (4) of the letter b KUHAP as such above
is more repressive and limitless formulated as a guide
for law enforcement officers (investigators and the public prosecutor) in performing
actions containment;
f. Article 335 paragraph (1) of the Criminal Code is intended to be clear and clear to
to protect people's independence and to strengthen the norms of constitutional law
as contained in Article 28G of the Constitution of 1945. The norm of criminal law that
strengthenes the constitutional norm is constitutional and must be maintained;
g. In the practice of applying these provisions not regardless of the obstacles or
constraints that law enforcement officials may face but that
does not make the article a quo contrary to the provisions of the 1945 Constitution.
[3.13] weighed that against the request of the applicant, the House of Representatives
The people had delivered oral captions in the trial on 21
February 2013, which was further contained in the sitting of the Perkara, which the People had said.
on the main view as follows:
a. Against the applicant's opinion stating the threat of wrongdoer punishment
is not as pleasant as referred to in Article 335 of the paragraph (1) of the Criminal Code
only 1 (one) of the year it is ideally unable to be withheld and that
is considered the applicant no legal protection of the state as
guaranteed in Article 28D paragraph (1) of the 1945 Constitution. The DPR provides the following
as follows:
The article 21 of the KUHAP already clearly governs that a person of the suspect
or a defendant may be detained not only based on consideration
objectives as based on the evidence enough, punitive 5 (five)
years or more and certain types of criminal acts as listed
36
in Section 21 of the paragraph (4) KUHAP, will but detention of the suspect
or the defendant may also be based on the subjective considerations of enforing
the law as set forth in Article 21 of the paragraph (1) KUHAP, which is
in the event of circumstances which raised concerns that the suspect or
the accused will escape, damage or remove any evidence
and/or repeat the criminal offense;
the statement that beside Article 21 KUHAP which authorizes
law enforcement to conduct detention of suspects or
defendants based on objective and/or subjective considerations, KUHAP
also set up a pretrial legal effort that can performed by
the suspect, the defendant, his family or his power who felt aggrieved Due to
the presence of an act of containment by law enforcement as
is feared by the applicant. The legal effort is set in the BAB X,
Article 77 of the letter a KUHAP reads, " The state court is authorized to
check and disconnect, in accordance with the provisions set out in
This legislation is about: a. lawful or illegal arrest, detention,
termination of inquiry or termination of prosecution ";
The failure that the pretrial effort is set in the KUHAP is
one of the forms of legal protection to suspect or
a defendant who felt harmed by an act of detention by enforage
the law. It has therefore been in line and not contradictory
with the provisions of Article 28D paragraph (1) of the 1945 Constitution
b. Section 335 paragraph (1) The Criminal Code, and Article 21 of the verse (4) of the letter b KUHAP are not
contrary to the 1945 Constitution.
Court opinion
[3.14] A draw that the constitutional issue in the a quo plea is
whether the same two phrases in Section 335 paragraph (1) item 1 of the Criminal Code
states, " Something done other nor unpleasant treatment "
contrary to the 1945 Constitution and thus the phrase,"Article 335 paragraph (1)"
in Section 21 of the paragraph (4) the letter b of the KUHAP is contrary to the 1945 Constitution?
[3.15] weighed that against the constitutional issue, according to
The court as a deliciness, qualifying, " Something else
37
or unpleasant treatment " cannot be quantified objectively.
If it can be measured then that size is very subjective and only
based on the victim's assessment, the investigators, and the public prosecutor alone.
In addition, it is generally unpleasant that it is the impact of
all criminal acts. Every criminal act is obviously unpleasant and not
there is a fun impact of criminal acts. As such, it is
not something that can be explicitly distinguizable (distinctive) of
another criminal offence;
[3.16] A draw that as a result of the deliciness of the delic
Thus, it can also be an opportunity for investigators and the public prosecutor
to arbitrate others based on a report.
Although it must be recognized that in the end it must be proved in
the court, however, if the report is proven, then it
Be reasonable and there is no arbitrariness. On the contrary, if not
is proven then the reported side has suffered a loss due to the need to
deal with the investigator and the public prosecutor and more if the
in question is withheld [vide Article 21 of the paragraph (4) letter b KUHAP]. Thus
means a person has lost independence as an act of entitlement, whereas
the criminal law and the criminal event law are in place to protect the rights of
the arbitrariness of law enforcement. In addition, concerned
morale and social have been harmed as having been stigmatized as
people despicable as a result of such reports;
Based on those considerations above, according to the Court phrase
"Something else or unpleasant treatment" in Section
335 paragraph (1) item 1 of the Penal Code has generated legal uncertainty and
injustice for giving the chance of arbitrary arbitrariness.
The investigator and the prosecution are common in its implementation especially for the party
reported, thus contrary to the constitutional principle that guarantees
protection of the right to obtain fair legal certainty in
the law enforcement process [vide Article 28D paragraph (1) UUD 1945]. Therefore,
the applicant's request in the constitutionality testing of the constitutionality Section 335 paragraph (1) item
1 KUHP throughout the phrase, "Something else or the treatment that is not
is fun" justified by law;
38
[3.17] weighed that on whether Section 21 of the paragraph (4) of the letter b of the Criminal Code along
the phrase, "Section 335 paragraph (1)" contradictory to the 1945 Constitution? The Court
argues that the provisions in Section 335 paragraph (1) item 1 of the Criminal Code do not only
contain the charge material associated with the norm in the phrase, " Something
other acts or treatment are not fun ", so that if
Article 21 paragraph (4) of the letter b KUHAP is declared contrary to the 1945 Constitution
means the whole norm in Section 335 paragraph (1) item 1 of the Criminal Code will be
not legally binding. This is not the case according to the law. In addition to
that, in fact, the application of the phrase constitutionality testing of the phrase,
"Something else or unpleasant treatment" in the section
335 paragraph (1) item 1 of the Criminal Code is warranted according to the law then testing Article 21
paragraph (4) of the letter b KUHAP is required,
because not the entire norm contained in Section 335 paragraph (1) item 1 of the Criminal Code
becomes contrary to the 1945 Constitution. According to the court of testing
constitutionality of Article 21 of the paragraph (4) of the letter b KUHAP throughout the phrase, "Article 335
paragraph (1)" is unwarranted according to the law. As for Article 21 of the paragraph (4)
letter b KUHAP which refers to Section 335 paragraph (1) item 1 of the Penal Code is sufficient
in its implementation refers to the norm after the Court ruling
states that some of its norms are non-binding. lawful;
[3.18] Draw that based on all legal considerations
described above, the Court argued that the applicant's request was warranted
according to law for part;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court is authorized to prosecute the a quo;
[4.2] The applicant has legal standing (legal standing) to submit
a request;
[4.3] The request of the applicant is reasonable according to the law for some;
39
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of 2011 on
Changes To The Law Number 24 Of 2003 On The Court
Constitution (sheet Of State Of The Republic Of Indonesia Of 2011 Number 70,
Additional Of The Republic Of Indonesia State Number 5226), And Invite-
Invite Number 48 Years 2009 on the Power of Justice (State Sheet
Republic of Indonesia of 2009 Number 157, Additional State Sheet
Republic Indonesia Number 5076);
5. AMAR RULING
Prosecute,
States:
1. Grant the applicant request for a part;
1.1. Stating the phrase, "Something else or the treatment that is not
please" in Section 335 paragraph (1) item 1 Act
1 Year 1946 on Criminal Law or Book of Invite-
Invite the Law Criminal juncto Act of the Republic of Indonesia Number
73 Years 1958 on Declaring Enactment Number 1
Year 1946 Republic of Indonesia on Criminal Law Ordinance For
All Territories of the Republic of Indonesia And Change The Book Of Inviting-
Inviting Criminal Law (State Sheet Number 127 Years) 1958,
Additional State Sheet Number 1660 Year 1958) contradictory
with the Constitution of the Republic of Indonesia in 1945;
1.2. Stating the phrase, "Something else or the treatment that is not
please" in Section 335 paragraph (1) item 1 Act
1 Year 1946 on Criminal Law or Book of Invite-
Invite the Law Criminal juncto Act of the Republic of Indonesia Number
73 Years 1958 on Declaring the Act Number
1 Year 1946 Republic of Indonesia on Criminal Law Regulation For
All Regions of the Republic of Indonesia And Change The Book Of Invite-
40
Inviting Criminal Law (State Gazette Number 127 of 1958,
Additional Gazette number 1660 in 1958) did not have
binding legal force;
1.3. Article 335 paragraph (1) item 1 of the Law No. 1 of 1946 on
Criminal Law or Criminal Law Code
juncto Act of the Republic of Indonesia Number 73 Year 1958 on
Declares the Law Number 1 Year 1946 Republic
Indonesia on Criminal Law Regulations For The Whole Region
Republic Of Indonesia And Changing The Book Of Criminal Law
(sheet Of State Of The Republic Of Indonesia Number 127 In 1958,
Additional Gazette Republic of Indonesia No. 1660 Year
1958) being declared, " Whoever is against the law
forces others to do, not do or
let something, by using violence, or by wearing
the threat of violence, either against the person himself or anyone else ";
2. Reject the applicant's request for other than and for the remainder.
3. Ordered the loading of this termination in the News of the Republic of Indonesia
as it should be;
So decided in a Consultative Meeting of the Judges by
nine Constitutional Judges: M. Akil Mochtar, as the Chairman of the Republic.
Member, Achmad Sodiki, Hamdan Zoelva, Arief Hidayat, Ahmad Fadlil Sumadi,
Harjono, Maria Farida Indrati, Muhammad Alim, and Anwar Usman, respectively-
respectively as Members, on Monday, twenty-seventh date, May,
year two thousand thirteen, and spoken in the Plenary Session of the Court
The Constitution is open to the public on Thursday, the sixteenth, month date
January, year two thousand fourteen, completed pronounced at 16.10 WIB, by
the eight Judges of the Constitution, namely Hamdan Zoelva, as The co-chairs are
Members, Arief Hidayat, Ahmad Fadlil Sumadi, Harjono, Maria Farida Indrati,
Muhammad Alim, Patrialis Akbar, and Anwar Usman, respectively as
Members, with accompanied by Hani Adhani as Panitera Substitutes,
41
attended by the applicant or its ruler, without the presence of the Government or which
represents and the People's Representative Council or represents.
CHAIRMAN,
ttd.
Hamdan Zoelva
MEMBERS,
ttd.
Arief Hidayat
ttd.
Ahmad Fadlil Sumadi
ttd.
Harjono
ttd.
Maria Farida Indrati
ttd.
Muhammad Alim
ttd.
Patrialis Akbar
ttd.
Anwar Usman
PANITERA REPLACEMENT,
ttd.
Hani Adhani