VERDICT Number 3/PUU-XI/2013

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] That prosecuting constitutional matters in the first degree and lastly,

dropping a ruling in the Test case Act Number 8 of the Year

1981 on the Code of Criminal Events Act against the Invite-

Invite the State of the Republic of Indonesia in 1945, which was filed by:

[1.2] Name: Hendry Batoarung Ma'dika

Citizen : Indonesia Employment: Wiraswasta

Address :Bua, Sangbua Kelurahan, Kesu District ',

North Toraja Regency

In this regard under the Special Power Letter 8/UM-MK/XI/2012,

dated November 29, 2012 authorized to Duin Palungkun, S.H., Advocates at the office of Advocate Law Clinic-Duin Palungkun, S.H., & Associates

headquartered in C.H.F. Mooy Street, Number 6, Kelapa Lima, Kupang, NTT acting

for and on behalf of the power provider; Next is referred to as ------------------------------------------------------------ Applicant;

[1.3] Reading the applicant's request;

Hearing the applicant's description;

hearing and reading the Government's description;

hearing and reading the People's Representative Council's description;

Checking the applicant's evidence;

Reading Supplicants and Government conclusions;

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2. SITTING LAWSUIT

[2.1] In a draw that the applicant has submitted this undated application

December 12, 2012 which is accepted in the Constitutional Court of Justice

(subsequently called the Court of Justice) on 26 December 2012

based on the Certificate of Accepting File Request Number 5/PAN.MK/ 2013 and

has been recorded in the Book Registration Book with Number 3/PUU-

XI/2013 on January 3, 2013, which has been corrected with the Improvement

A request was dated 12 December 2012 and received in Kepaniteraan

The court on February 1, 2013, at its point outlining the things

as follows:

I. AUTHORITY OF THE COURT

1. That Article 24 ayal (2) of the Basic Law of 1945 (subsequently called

Constitution of 1945) states, "The judiciary is done by an

The Supreme Court and the judicial body that are under it in the environment

General justice, the religious judicial environment, the military judicial environment,

the judicial environment of the state enterprise, and by a Court

Constitution ".

2. That Article 24C paragraph (1) of the Constitution of 1945, Article 10 ayal (1) letter of an Invite-

Invite Number 24 Year 2003 on Constitutional Court (Sheet

state of rl 2003 number 98, Additional Rl State Sheet

4316, hereafter called Act MK Number 24/2003) and Article 29 paragraph (1)

letter a Invite-Invite Number 48 Year 2009 on Power

Judiciary (Rl State Sheet 2009 Number 157, Additional

Rl State sheet number 5076) stated, " Constitutional Court

authorities prosecute on the first and last level of its verdict

memorizing the final to test the Act against the Act

Basic Republic of Indonesia in 1945 ",

II. LEGAL STANDING (LEGAL STANDING) PEMOHON

1. That Article 27 paragraph (1) of the 1945 Constitution reads "Any citizen

at the same time it is in law and government and is mandatory

uphold that law and rule with no exception";

2. That Article 28D paragraph (1) of the 1945 Constitution reads " Every person is entitled

on the recognition, guarantees, protection and certainty of fair laws as well as

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equal treatment before the law "

3. That Article 28I ayal (2) of the 1945 Constitution reads " Every person is entitled

free of any discriminatory treatment on any basis and

reserves the right to be protected against the nature of the treatment

The discriminatory is ".

4. That the provisions of Article 18 paragraph (3) of the Law No. 8 Year 1981

on the Penal Code Law Act set about

gust of arrest warrants as referred to in paragraph

(1) must be given to family immediately after the arrest is done;

5. That the applicant is a suspect of Indonesian nationals as

A warrant for the Detention Order Number SP.Han/13/X/2012/Drugs dated 3

October 2012 that has been arrested under Arrest Warrant

Number SP.Kap/15/IX/20l2/Drugs dated 28 September 2012;

6. That the chronological start of his arrest until the attempt

Pretrial the applicant is as follows: The applicant has been arrested

by the State Police of the Republic of Indonesia South Sulawesi Resort

Tana Toraja, Jalan Bhayangkara No. 1 Makale 91811, from Friday

on September 28, 2012 at 18:00 WIT with a Warrant

Arrest Number SP.Kap/I5/IX/2012/Drugs dated September 28

2012 and have been detained on the 3rd of Oklober 2012 with Warrant

Detention Number SP.Han/13/X/20l2/Drug dated October 3, 2012.

The applicant has been arrested after the arrest of Runi one of the

works at the Donal Karaoke in Bua, Sangluia, Kesu District,

North Toraja Regency, which is adjacent to the stalls

eat The petitioner. Runi was arrested while playing a card game and

when raided by the former Tana Toraja Resort Police who had previously been

received information about gambling. It has fallen into something from Runi's body

which is then proven to be a sabu-sabu type of narcotics. Runi later

informed the police who arrested him that

the sabu was acquired from Irmania Bachtiar aka Mama Nio's wife

The policeman's side is moving to the dining area

less than 50 meters to search for Irmania Bachtiar aka Mama Nio wife

The applicant and meet Irmania Bachtiar aka Mama Nio wife of the petitioner and

The applicant at the dining stall and after being searched found 1

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(one) blank plastic that is then charged as a plastic scar

a sabu-sabu type narcotics storage, instantaneously, Irmania

Bachtiar aka Mama Nio's wife, and Runi was arrested and brought

to the Polres Tana Toraja at Makale which is approximately 14 km from

where the arrest was then handed over to the Polres Drug Unit

Tana Toraja at Makale which at 20:00 returned to bring the applicant

to search for the applicant ' s house located approximately 100 meters

from the dining stall where the applicant Previously arrested. At the time of

the shakedown was not found any narcotics material. Since

during the arrest and release the applicant has been ruled by

Investigator Drug Unit Polres Tana Toraja di Makale because it is locked up

in the custody cell of Polres Tana Toraja in the capture and durability process.

On October 22, 2012 at 12.00 am copy of the Letter

The Arrest Warrant of SP.Kap/15/IX/2012/Drugs dated to 28

September 2012 and the Restraining Order Number

SP.Han/13/X/2012/Drugs are dated 3 The 2012 oklober was delivered to

the applicant 's family in this case the applicant' s mother. After studying the process

the investigation in particular the captured process was later withheld and

delivery to the family copy of the Arrest Warrant Letter

SP.Kap/l5/1X/2012/Drugs were taken on September 28, 2012 and the Mail

arrest warrant SP.Han/13/X/2012/Narba, dated 3

October 2012 that exceeded 24 (twenty-four) days after

arrested, then the applicant through legal authority submitted

the Prajudicial application ends with the application of the application

Based on the Prejudicial case number

01 /P1D/PRA/2012/PN. MKL on November 19, 2012;

7. That the applicant is a citizen of Indonesia whose constitutional right

has been violated by the Indonesian Republic of Indonesia Resort Tana Toraja

in the arrest and detention process as described above

in a manner of way. Slowing down the Warrant

The arrest to the family is delivered after 24 (twenty

four) days after being arrested, which in the provisions of Article 18 paragraph (3)

Act No. 8 of 1981 on Book of Law

The Criminal Event Law set about: gust of warrant

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The capture of the schow referred to in paragraph (1) must be given to

the family immediately after the arrest was made;

8. That in a normative practice should be a steed of the warrant

the arrest is delivered immediately where the immediate word should

be interpreted immediately after the arrest is done or in the middle of

the time is not too long after the arrest, but the words:

soon, immediately, not too long, it will remain something

that is uncertain if the Act does not set out definitively and resolute

its time span;

9. That in the practice of implementation of the provisions of Article 18 paragraph (3) Invite

Invite Number 8 Year 1981 on the Book of Invite Law

The criminal set about: a gust of arrest warrants

as referred to in ayal (1) must be given to his family

as soon as the arrest is done, it has been applied differently-

different lerfacing of Indonesian citizens, cause busan warrant

arrests have been given to the family only a few hours

after the arrest, there was given to the family one day of day

arrest, there are given to the family two days after

arrest, but against the Applicant of the warrant

The arrest was given to the family 24 (twenty-four) days after

arrest;

10. That an indication has been forced to make the applicant

as a suspect in the event of the law as described in

the chronological above is very clear as to the fact the law was found

at the applicant stall When the arrest is the plastic that is charged

as the former site of the meth-sabu and not found

the sabu-sabu narcotics ingredient, if only the warrant for the arrest warrant

was delivered with "immediately" with the The meaning of maximum 3 (three) days then

The family will get a chance to find it the companion of the lawyer

or an advocate before the examination process is too far done and

investigators have found the investigation of Satdrug Polres Tana Toraja is difficult to change

A plastic called as a place of storing the ingredients

sabu-sabu narcotics into sabu-sabu narcotics and made base

embezzled the applicant as a suspect;

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11. That of the plastic that's been accused of storing

the sabu-sabu narcotic material is illogical and sensible can

be sampled in a forensic laboratory to determine the contents of

narcotics material. The sabu-sabu that was then made the basis of the designation

The applicant as a Suspect;

12. That it was supposed to be expected of the applicant himself in 2010

indeed using the sabu-sabu drug has been used as a target of operation

and forced into a suspect with the confidence of the person who once

uses the material Sabu-sabu narcotics in his urine if at the test still

contained the sabu-sabu narcotics material, this should not be allowed because

other than will be vulnerable to coercion of will and violate the right

of the citizen's constitutional Indonesia will also make the former

set-trapped wearers do n' t have a chance of repentance If you stop

use while on the other side Act No. 35 is 2009

about Narcotics giving room for the former drug user to

go to rehab;

13. That the delivery of the arrest warrant is made 24 (two

twenty-four) days after the applicant is arrested as the above description

clearly has violated the applicant ' s constitutional right because the Act

does not enlist or: " immediately '' in the provisions of Section 18 of the paragraph (3) of the Act No. 8 of the Year

1981 on the Book of the Criminal Events Act;

14. That is the prejudicial decision of the prejudicial case number

0I/PID/PRA/20I2/PN. MKL on November 19, 2012 is defined

free up to 24 days after the arrest is done being weighted as

meets the criteria of the Makna word "soon" in that provision because according to the judge's consideration The Act is not outlined for certain how long the time span is for the immediate word (vide hal. 39 alinea Third Verdict Prajudiciary Number 01 /PID/PRA/2012/PN.MKL dated 19 November 2012);

III. POSITA AND YURIDIS ANALYSIS

1. That since the capture process, the detention of the applicant and

the Pratrial process has occurred several legal violations as

following:

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- That according to the Drug Unit Investigator Polres Tana Toraja at Makale

The applicant is caught by hand;

- That the Lone Judge's consideration in the Verdict

Prejudicial Number 01 /PID/PRA/20I2/PN.MKL dated November 19

2012 also states the applicant has been caught hand;

- That in the redactional Letter of Arrest Warrant Number SP.Kap/

15 /IX/2012/Drugs dated 28 September 2012 at considerans

Perscale points are written: " That for the benefit of the Inquiry and

or the Criminal Code setup, and or for the offender the breach

has been called 2 (two) times in a row not without any reason,

then it needs to issue this Warrant";

- That in the Arrest Warrant Letter

SP.Kap/15/IX/2012/Drugs dated 28 September 2012

ordered to: 1. Andarias Lomo. Rank/NRP:

Bripka/58040247, title: angt. Sat Intelkam, 2. Paulus Pakiwa.

Pangkat/NRP: Brigpol/85100075, post: Maid Investigator, 3.

Marthen Rerung, SH, Pangkat/NRP: BrigpoI/830 50747, post:

Associate Investigator. 4. Hecza Pasulu, Pangkal/NRP: Briptu/88090548,

office: angt. Sat Intelkam. 5. Hendra Frengki, Pangkat/NRP:

Briptu/89010128, post: angt. Sat Intelkam. 6. Fritz Alexander Leaso?

Pangkat/NRP: Briptu/87031531;

- That Andarias Lomo, Pangkat/NRP: Bripka/58040247 in

his description as a witness in front of the Prajudiciary trial

explains after the applicant, Irmania Bachtiar aka Mama Nio wife

The applicant, Runi was arrested on the same day and time then

all three were handed over to the Drug Unit Polres Tana Toraja and

The third arrest was preceded by information of gambling

so it was clear not because Arrest Warrant Number

SP.Kap/15/IX/2012/Drug dated September 28, 2012 and not

correct Perscales In The Arrest Warrant Number

SP.Kap/15/lX/2012/Drugs dated September 28, 2012 which in

popo stated that the Warrant was issued after which

ordered to be arrested has been called twice in a row;

- That the applicant is caught in hand because at the moment

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captured up to search even now

no narcotics found in the sense of carrying, controlling

and having as set up in Act Number 35

Year 2009 about Narcotics;

- That the result of not being passed by immediately a gust of mail

an arrest warrant referred to in paragraph (1) must

be given to his family immediately after the arrest was made

then the applicant ' s family after 24 days is on October 22

the new 2012 It can be legal to seek a lawyer, but

The saddest thing is too late because the applicant has been upgraded

to be the suspect and has been detained;

- That an extension of the arrest period is as much as 2 (two) times In a row-

is not the authority of the Indonesian National Police

instead of being the National Drug Agency's Investigator

as set in Section 76 junto Article 75 of the g Invite

Number 35 2009 on Narcotics and Section 84 Act

No. 35 Year 2009 "Narcotics Tana Toraja" to immediately deliver to the Investigator

The National Narcotics Agency about the investigation and

thus clearly the provisions of Act Number 35. 2009

on Narcotics differentiated between the Authority of Police Investigations

The Republic of Indonesia in this case Polres Drug Unit Tana Toraja

and the National Drug Agency Investigators Authority:

2. That in the Act No. 8 of the Year of 1981 on the Book

The Criminal Event Law does not regulate about refinement

about how long the word "immediately" so that the Republican Police Investigator

Indonesia and Judge Single in Pretrial Decree

No. 01 /PID/PRA/2012/PN.MKL dated November 19, 2012 to nai

freely up to 24 days after The Arrest was done was weighted

as meeting the meaning criteria of the word "immediately" in the provision

because according to the judge ' s consideration in The Act is not

outlined for sure how long the time span for the immediate word is (vide hal. 39 is the third paragraph of the Prejudicial case number

01 /PID/PRA/20I2/PN. MKL dated November 19, 2012):

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3. That application of Article 18 paragraph (3) Invite Invite Number 8 Year 1981

on the Book of Criminal Event Law by Investigator

The Indonesian Republic Police in particular about the introduction of the word

"Soon" time is uncertain and equal to Indonesian citizens

in any case thus it does not guarantee the legal certainty that makes citizens treated unequal in front of the law (discriminatory), because the application of the word "immediately" in such provisions exists. that was done a few hours after the arrest was done, there

applied 1 (one) day, 2 (two) days up to 1 (one) weeks after

arrests are performed;

4. That in the case of the Prejudicial case number

01 /PID/PRA/2012/PN. MKL dated November 19, 2012 word "soon" has been

being interpreted for 24 (twenty-four days) that the arrest is done

so that for 24 (twenty four days) the family captured in this case the petitioner was not given chance to know

legitimately about the cage of the criminal offense and

cannot attempt the distraction of the Advocate or Lawyer

during the Investigator was done so as for 24 (twenty-four day)

the legal right of the applicant has been limited by investigators in the matter;

5. That in the provisions of Article 27 paragraph (1) of the Constitution of 1945 which governs

about: All citizens simultaneously in law

and the government and shall uphold the law and governance

with no exception, also very clearly set Article 28D paragraph (1)

Constitution of 1945 reads "Every person is entitled to the terms of recognition, guarantee,

Fair protection and legal certainty as well as the same treatment in

face of law", as well as Article 28I paragraph (2) of the 1945 Constitution reads '' Any

people are entitled free of a discriminatory treatment of the base

anything and is entitled to a protection against the treatment that

is discriminatory to it ". so it refers to the application of the laws of the Article

18 paragraph (3) Invite No. 8 Year 1981 on the Book of Invite

Invite the Criminal Event Law by the Indonesian Police Investigator

in particular about the improvement of the word "Immediately" as described

above clearly there has been a conflict. laws that need to be decided

definitely about " Completion of the word "immediately" in Article 18 of the paragraph (3) Invite-

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Invite Number 8 Year 1981 on the Book of the Law of Events

Criminal and because such contention has occurred between the Invite-

Invite and the Constitution or the Basic Law of 1945 then this has been

being the competence of the Court of Conslitusi as set in Article

3 letters a Invite Invite Number 24 Year 2003 on the Court

Constitution;

6. That the Prajudiciary judge as described above in fact

is the expectation that the rights of the applicant as a citizen

Indonesia guaranteed by the constitution may be guaranteed an even in

the final verdict of the decision. and in the practice of application of law,

in support of a conflict of law enforcement of Article 18 paragraph

(3) Law No. 8 Year 1981 on the Book of Law

The Law of the Criminal Events with Article 27 paragraph (1) Constitution of 1945, Article 28D paragraph

(1) UUD 1945 and Article 28I paragraph (2) UUD 1945 and therefore

The issue of this law is to be decided by the Supreme Court of Judges

Constitutional Court of Justice;

7. That an indication has been forced to make the applicant

as a Suspect in the event of the law as described in

the chronological above is very clear as to the fact the law was found

at the applicant's stall When arrest is the plastic that is charged

as a former site of the sabu-sabu narcotics ingredient and not found

the sabu-sabu narcotics material, if only the warrant of the arrest warrant

is delivered with "immediately" with the meaning maximum 3 (league) days then

The family will get a chance to find Attorney's companion

or advocate before the vetting process is too far done and

Investigators or Investigative Investigator Polres Tana Toraja is difficult to change

a plastic called as a place to store the ingredients

sabu-sabu narcotics became sabu-sabu narcotics and were made

the basis of setting the applicant as a Suspect;

8. That of the plastic that's been accused of storing

the sabu-sabu narcotic material is illogical and sensible can

be sampled in a forensic laboratory to determine the contents of

narcotics. sabu-sabu that was then made the basis of the designation

The applicant as a Suspect;

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9. That it was supposed to be expected of the applicant himself in 2010

indeed using the sabu-sabu narcotic material had been the target of the operation

and was forced into a suspect with the confidence of the person who was

using the material Sabu-sabu narcotics in its urine if tested still

contained the sabu-sabu narcotics material, this should not be allowed because

other than will be vulnerable to coercion of will and violate the rights

of the citizen's constitutional Indonesia will also make the former

set-trapped wearers do n' t have a chance conversion or stop

wear while on the other side Act No. 35 Year 2009

about Narcotics giving room for drug ex-users to

undergo rehabilitation;

10. That the delivery of the arrest warrant is 24

(twenty-four) days after the applicant is arrested as the description in

on clearly has violated the Applicant ' s constitutional rights due to Invite-

Invite not to be defined "immediately" in the provisions of Article 18 of the paragraph (3) of the Act

No. 8 of the Year of 1981 on the Book of the Criminal Event Law;

11. That is the prejudicial decision of the prejudicial case number

01 /PID/PRA/20I2/PN. MKL dated November 19, 2012 to define

free up to 24 days the capture is done weighted as

meets the meaning of the word "immediate" in the terms because

according to the judge's consideration in the Act not

is defined for definitively how long the time span is for the immediate word (vide hal. 39 alinea third Verdict Prajudicial Matter Number 01 /PID/PRA/2OI2/PN.MKL dated 19 November 2012):

12. That based on the entire description above may be very clear to the importance

The Supreme Court of Justice of the Constitutional Court examined and

severing the request for this material test to provide an upgrade

is firm and surely above word "immediately" that is in Section 18 paragraph (3)

Act No. 8 of 1981 on the Code

Criminal Event Law, whether being defined 1 (one) day, 2 (two) days or 3

(three) days after the capture of a gust A binding warrant

delivered to a family that lives in one region

same district/city and 1 (one) week, 2 (two) weeks or 3

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(three) weeks for families living outside the district/city for

the equality of right in front of the law may be guaranteed and not contradictory

with the constitution or the Basic Invite of 1945;

IV. PRINCIPAL APPLICATION

1. Grant the applicant request for the whole;

2. Stating the Terms of Section 18 of the paragraph (3) Invite Invite Number 8 Year

1981 on the Penal Code Law Act does not apply,

throughout the phrase "immediately" '' is defined no more than 3 (three) days after

arrest Arrest warrants capture must be delivered

to families for families who live in one region

the same county/city as the Resort Police area

making an arrest;

3. Stating the provisions of Article 18 paragraph (3) of Act Number 8 of the Year

1981 About Kilab The Criminal Event Law Act does not apply,

along the phrase "immediately" is defined no more than 1 (one) week

after the arrest A gust of arrest warrant must

be delivered to the family for families who live in one

province area but outside of county/city with the Police area

Resort that carried out the arrest;

4. Stating the Terms of Section 18 of the paragraph (3) Invite Invite Number 8 Year

1981 On the Code of Criminal Events Act does not apply,

throughout the phrase "immediately" is defined no more than 1 (one) week

after the arrest A gust of arrest warrants must

be delivered to the family for families who live in one

province area but outside of county/city with the Police area

Resort that carried out the arrest;

5. Ordering the loading of this ruling in News of the State as

should be:

Or if the Assembly of Justice Court argues otherwise, please the verdict

as well (ex aequo et bono):

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[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

proof of P-4, as follows:

1 Evidence P-1 Photocopy Arrest warrant Number

SP.Kap/15/IX/2012/ Drug, dated September 28, 2012;

2 Evidence P-2 Photocopy Warrant Containment Number SP.Han/13/IX/2012/

Drugs, dated October 3, 2012;

3 Evidence P-3 Photocopied State Court ruling Makale Number

01 /PID/PRA/2012/PN.MKL, dated November 12 2012;

4 Evidence P-4 Photocopy Letter of receipt dated October 22, 2012;

[2.3] A draw that against the applicant's request, Government

provides the caption in the February 21, 2013 trial and has been

submit the written caption received by the Court of Justice

on May 28, 2013 at the point of the event as follows:

I. THE SUBJECT MATTER OF THE APPLICANT ' S APPLICATION

1. That the constitutional right of the applicant has been violated by the Police

Republic of Indonesia Resort Tana Toraja in the arrest process (Letter

Arrest Warrant of SP.Kap/15/IX/2012 Drugs dated 28

September 2012) and Detention (Restraining Order Number

SP.Han/13/X/2012 Drugs dated October 3, 2012) of the applicant

for slow to give a Letter of Arrest of the Self-Arrest

The applicant is to the applicant ' s family where Mail stews

arrests delivered after 24 (twenty-four) days after

arrest, this is not in accordance with the provisions of Article 18 of the paragraph (3)

KUHAP that the gust of arrest warrants as

referred to in paragraph (1) must be given to his family immediately

after arrest done.

2. That the delivery of the warrant for the capture of the arrest warrant 24 (twenty

four) days after the applicant is arrested, has violated the constitutional right

the applicant because the Act does not define or outline

for certain and logical terms. immediate time range of the word "immediate" in the provisions of Section

18 verses (3) KUHAP.

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3. That application of Article 18 paragraph (3) of KUHAP by Investigator POLRI

in particular about the term "immediate" time is uncertain and

evenly for the WNI in each case, so as not to guarantee

the legal certainty that makes citizens country is treated not the same in

front of the law (discriminatory).

4. That the applicant is aggrieved in relation to the existence of the Putermination

Prajudicial Number 01 /PID/PRA/2012/PN.MKL dated 19 November 2012

who on the point of stating "rejected the prajudicial application

The applicant" because according to the applicant Judge prejudicial consideration

interprets the word "immediately" also freely because in the Act

is not definitively defined how long the time span is for the word

"immediately".

5. Thus the norm contained in the a quo Act,

is considered to have violated the constitutional right of the applicant so as to be considered

in conflict with Article 27 of the paragraph (1), Article 28D of paragraph (1) and Article 28I

paragraph (2) 1945.

II. ABOUT LEGAL STANDING (LEGAL STANDING) THE PLAYER.

In accordance with the provisions of Article 51 of the paragraph (1) Act No. 24 of the Year

2003 on the Constitutional Court as amended by

Act No. 8 of 2011, it states that the applicant is

the party consider the rights and/or its constitutional authority

aggrieved by the enactment of the law, namely:

a. Individual citizens of Indonesia;

b. the unity of the customary law society, as long as it is alive and appropriate

with the development of the People's Republic of the Republic and the principle of the Republic of the Republic

Indonesia that is set in undang-Undang;

c. the public or private legal entity; or

d. country institutions.

The above provisions are expressed in its explanation, that what

with "constitutional rights" is the rights set forth in the Invite-

Invite the Basic State of the Republic of Indonesia in 1945.

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Thus, in order for someone or a party to be accepted as

The applicant who has a legal standing (legal standing) in

an Act of testing against the Basic Law

The State of the Republic of Indonesia in 1945, then it was first to

explain and prove:

a. His qualifications in the a quo request are referred to in

Article 51 of the paragraph (1) of the Law No. 24 of 2003 on

The Constitution of the Constitution as described by the Invite-

Invite Number 8 Year 2011;

b. the rights and/or constitutional authority in the qualifying referred to which

is deemed to have been harmed by the enactment of the legislation;

c. the rights and/or constitutional authority of the petitioners as

result The Act to which the Law is being honed.

Further the Constitutional Court of Constitutional Decree Number 006 /PUU-III/2005 and

Putermination Number 11 /PUU-V/2007, as well as subsequent rulings have

provided an understanding and Cumulative limitations on loss of rights

and/or authority The constitutional law arising out of the application-

Invite by Article 51 of the paragraph (1) Act No. 24 of 2003

on the Constitutional Court as amended with the Invite-

Invite Number 8 Year 2011 must be meets 5 (5) terms, which is:

a. The Constitutional Rights of the Petitioners Granted by Invite-

Invite Basic State of the Republic of Indonesia in 1945;

b. The Constitutional rights of the applicant are considered the applicant to have

harmed by an Act tested;

c. The Constitutional disadvantage of the intended applicant is specific

(special) and actual or at least potentially potential that

reasonable reasoning can be certain to occur;

d. Due (causal verband) between the loss and

the enactment of the Act is moveed to be tested;

e. It is possible that with the request of the application,

The constitutional loss postured will not or no longer occur;

On those matters above, then according to the Government needs to be questioned

interest The applicant is appropriate as a party to consider

the rights and/or its constitutional authority be harmed by the enactment of the Article

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18 paragraph (3) Law Number 8 of 1981 on Event Law

Criminal also whether there is a constitutional loss of the applicant who

is referred to is specific (special) and actual or at least be

A potential that according to reasonable reasoning can be determined to occur,

and whether there is a causal relationship (causal verband) between the loss and

the enactment of the Act is being asked to be tested. As such,

The applicant in testing the Act against the Constitution of 1945 must

explain and prove first:

1) its position as the applicant as referred to in Article 51

paragraph (1) of the MK Act;

2) the rights and/or constitutional authority granted by

of the 1945 Constitution resulting from the enactment of the Act

on the motion of testing

Against the legal position of the applicant, the Government may provide

explanation as follows:

a. That it must be distinguished between the constitutionality testing of the norm Invite-

Invite (constitutional review) and the issues arising as a result of

from the application of the norm of the Act in a number of countries

(e.g. Germany or South Korea) is included in the scope

issue of litigation or constitutional adduction (constitutional complaint)

whose authority it is also granted to the court

the constitution. In the first instance (constitutional review), which

is regrettable is whether an Act norm is contradictory

or not with the constitution, whereas in the second

(constitutional complaint) that Whether an action

public official (or not doing anything public official) has

violated a basic right (basic rights) a person, which among others can

occur because of public officials who concerned mistakenly in interpreing

the norm of the Act in its application.

b. Under Article 24C of the paragraph (1) of the Constitution of 1945, the Court is expressly only

stated to have the authority to examine, prosecute, and

disconnect it against whether an Act norm is contrary or

not with the constitution (constitutional review), while against

17

The current mentioned problem (constitutional complaint),

to date, the 1945 Constitution did not set it;

c. That after reading carefully the request of the applicant or

the applicant's description in the trial, According to the Government

in question the applicant is more an

constitutional complaint rather than judicial review or constitutional review.

However, by the applicant the question was submitted as

the request for the Act to test Act 1945 by dalil

that the provisions in the Penal Code and the KUHAP are being mohoned

testing is contrary. with the provisions of the Constitution of 1945,

d. That the flaws or flaws that occur in the process of applying

the norm is not true if it is overcome with the path of revoking that norm. Cause,

if it is done then whenever we are impeached by the practice of applying

an Act norm, in casu norm of the law Act

criminal, and it is addressed by repeating the norm Act

The criminal law, then the penal law, would never have been

to have a reason and place to live in society.

Anyway, if there is a weakness or lack that occurs

in the process of applying the norm, in casu norm of the Act as

experienced by the applicant Number 3/PUU-X/2013 where the mail gust

A new arrest warrant was delivered 24 days after the arrest,

is an unprofessional act (unprofessional conduct) by the apparatus

RI Police. The applicant may report an act of unprofessional conduct

to the police supervising division (Propam Division) or

may report any deviations that occurred to

the state agency set up. It's like the KOMPOLNAS. In addition

our legal system telam provides a way to demand justice with

pre-judicial institutions and through legal efforts (appeals, casings, PK)

Based on those things above, the Government argues the applicant

in this request does not meet qualifications as a legal standing party (legal standing) as intended by

provisions in Article 51 of the paragraph (1) Act Number 24 of 2003

about The Constitutional Court as amended by the Invite-

18

Invite Number 8 Year 2011 and based on the verdict

The previous Constitutional Court. Therefore, according to the Government is

right if the Honourable Chairman/Assembly of the Constitutional Court of Constitutional Court is

wise stated the applicant's request was not acceptable (niet ontvankelijk verklaard).

But so the government is giving up entirely to His Majesty

Chairman/Assembly of the constitutional judges to consider and judge it

whether the applicant has a legal position (legal standing) or not,

as defined by Article 51 of the paragraph (1) of the Law Number

24 of 2003 on the Constitutional Court as amended

with the Act No. 6 of 2011, and based on the ruling-

Court ruling Previous Constitution (vide Putermination Number 006 /PUU-

III/2005 and Putermination Number 11 /PUU-V/2007).

III. GOVERNMENT EXPLANATION OF THE APPLICATION OF THE LEGISLATION REQUIRED BY THE APPLICANT

That of the Applicant's Control, the Government remains of the opinion

that the provisions of Article 18 of the paragraph (3) Act No. 8 of the Year of 1981

about the Criminal Event Law (KUHAP) does not conflict with Article 27

paragraph (1), Article 28D paragraph (1) and Article 28I paragraph (2) of the Basic Law

State of the Republic of Indonesia in 1945 for the reasons as follows:

1. That arrest and archery can only be performed

based on written orders by officials authorized by

legislation and only in terms of and in a regulated manner

with the Act, (except in terms of caught hand)

2. That the arrest warrant lists the identities

the suspect and mentions the reason for the arrest and the brief description

the alleged crime scene as well as the place he examined. In addition to

given to the arrested person, the warrant gust

arrest was also given to his family immediately after

arrest.

3. The provision was intended to inform

the families of the captured and legal certainty for the

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The arrested family on the grounds of arrest as well as the venue

the person in the catch is currently located.

4. That special in terms of what is set forth in Section 18 paragraph (3)

KUHAP is against the gust of arrest warrant

as referred to in paragraph (1) should be given to

his family immediately after the arrest, is done to accommodate

community awareness demands and as well as to provide legal certainty

for the families arrested.

5. That in the Indonesian National Dictionary of the 2nd edition, the Balai

Pustaka publication, the word "immediately" as it is mohoned or the word phrase

is being honed by the applicant, then means lekas, fast, hastily,

so it should be A gust of arrest warrants must be

delivered to the family, then in a short period of time-

in short, quick, wide-time, and hastily

to the immediate end of the family's side.

6. Nevertheless in practice, the application of the provisions of Article 18 paragraph (3)

The KUHAP is not detached from the obstacles or constraints-

the constraints that investigators may face in terms of delivery

gust of arrest warrants to the suspect ' s family as not

clearly the family address, the location of the remote arrest, as well as the technical thing

related to the shipment of the arrest warrant warrant. Regardless of

the obstacles that may be encountered, the warrant gust

the arrest remains mandatory immediately to the family

the person in custody.

7. That the flaws or flaws that occur in the process

the application of norms or the implementation of norms in the practice order, in

casu as is being honed by the applicant such as in

in notice against arrest to her family that

just up to 24 business days. According to the Government of such things

entered the category of non-professional or unprofessional acts

conduct by the apparatus given the authority for it.

8. That there is no constitutional loss of the applicant to the a quo,

because in terms of delay given by the POLRI investigators

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to the Applicant family is concerning the implementation of the norm and

in this case POLRI investigators have given the warrant a warrant

arrest to the Applicant family so that the severing of the Number

01 /PID/PRA/2012/PN. MKL dated November 19, 2012 refused

the applicant's prejudicial application due to which it concerns

the validity of the arrest is if the warrant is a warrant

The arrest is not given to the suspect's family.

9. The Prajudicial verdict Number 01 /PID/PRA/2012/PN.MKL dated 19

November 2012 has been in accordance with the procedure and is guaranteed by the Invite-

Invite as stated in Section 77 and Section 78 of the KUHAP and

in line with the protection of which given the State in Article 27

paragraph (1), Article 28D paragraph (1) and Article 28I paragraph (2) of the Act

Basic State of the Republic of Indonesia in 1945.

10. That against the applicant's arrest has been based on

the provisions of Article 17 of the KUHAP where the reason for the arrest of a

The suspect is that someone is suspected of being violent.

penal and a strong guess is based on at the start of the proof that

is enough.

IV. Conclusion

Based on those explanations and arguments above, the Government

implores the esteemed Chairman/Assembly of the Constitutional Court of Constitutional Court

who examined and disconnected the testing of Article 18 of the paragraph (3)

Law No. 8 Year 1981 on Criminal Event Law

(KUHAP), may provide a ruling as follows:

1. Rejecting the applicant 's testing request was entirely or at no-

not stating the applicant' s test request could not

be accepted (niet ontvankelijk verklaard);

2. Overall Government Description

3. Stating the provisions of Article 18 paragraph (3) of Act Number 8

of 1981 the Criminal Event Law does not conflict with

not in conflict with Article 27 of the paragraph (1), Article 28 D paragraph (1) and

Article 28I paragraph (2) of the Act Constitution of the Republic of Indonesia

Year 1945.;

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4. Article 18 paragraph (3) Act No. 8 of 1981

on the Law of Criminal Events still has the power of law and

is binding in all areas of the Republic of the Republic of the Republic

Indonesia.

[2.4] weighed that against the request of the applicant, the House of Representatives

The people gave a statement in the hearing on 21 February

2013 and had submitted the written captions received by the Paniteraan

Court on March 26, 2013, at the point of view as

The following:

1. Legal Position (Legal Standing)The applicant Against the applicant ' s control as described in a a quo,

DPR in the delivery of his views first elaborates on

legal position (legal standing) The applicant.

Qualifying to be fulfilled by the applicant as a Party is set

in the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003 on the Court

Constitution (subsequently abbreviated to the Justice Act). Constitution), which states

that " The applicant is the party who considers the right and/or authority

its constitutionality is harmed by the enactment of the legislation, namely:

a. Individual citizen of Indonesia;

b. the unity of the indigenous law society as long as it is still alive and in accordance with

The development of the people and the principles of the Republic of the Republic of Indonesia

which is set in undra;

c. public law enforcement or Private; or

d. state agencies.

The rights and/or constitutional authority referred to the provisions of Article 51 of the paragraph

(1) it is expressly set forth in its explanation, that "in question

" constitutional rights " are rights set in the Act