Test The Material Constitutional Court Number 3/ppu-Xi/2013 2013

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 3/PPU-XI/2013 Tahun 2013

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Microsoft Word-3 PUU 2013-telahucap-30Jan2014 VERDICT number 3/PUU-XI/2013 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] who adjudicate matters the Constitution on the first and last levels, dropping a verdict in the case of testing the law No. 8 of 1981 on the book of the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, proposed by: [1.2] : Hendry Batoarung Ma'dika nationality: Indonesia occupation: Self-employed address: Bua, Kelurahan, Kecamatan Sangbua, Kabupaten Toraja ' Kesu North in this regard on the basis of a special power of Attorney Letter No. 8/UM-MK/XI/2012, dated November 29, 2012 authorizes Duin Palungkun, S.H., advocate at the Legal Clinic Office Advocate – Duin Palungkun, S.H., onshore Colleagues & Road C.H.F. Mooy, number 6, coconut Lima, Kupang NTT, acting for and on behalf of the giver of power; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-Appellant; [1.3] Read the petition of the applicant; Hearing a description of the applicant; Heard and read a description of the Government; Heard and read the description of the House of representatives; Examine the evidence the applicant; Read the conclusions of the applicant and the Government;

2 2. SITS MATTERS [2.1] considering that the applicant had filed a petition dated 12 December 2012 are received at the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) on 26 December 2012 based on deed of receipt of the Application File number 5/URPAN.MK/2013 and has been recorded in the books of registration Matters the Constitution with the number 3/PUU-XI/2013 on January 3, 2013, which had been repaired with the repair of the Application dated December 12, 2012 and received at the Registrar of the Court on February 1, 2013 Anyway, on to the outlines of things as follows: i. The AUTHORITY of the COURT 1. That section 24 surefire (2) of the Constitution of 1945 (hereinafter the Constitution) States, "the powers of justice done by a Supreme Court of Justice and the judiciary in the environment under which the public, environmental justice neighborhood religious courts, the military, the judiciary of the State of the environment, and by a Constitutional Court". 2. That Article 24C paragraph (1) of the Constitution, article 10 Surefire (1) letter a Act No. 24 of 2003 on the Constitutional Court (State Gazette Number 98 in 2003 Rl, Rl State Gazette Supplementary Number 4316, hereinafter referred to as ACT Number 24 MK/2003) and section 29 subsection (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette Number 157 in 2009 Rl The State Gazette, the extra Rl Number 5076) stated, "the Constitutional Court is authorized to adjudicate on the first level and the last final bersifal award to examine legislation against the Constitution of the Republic of Indonesia in 1945", II. The POSITION of the LAW (LEGAL STANDING) the APPLICANT 1. That article 27 paragraph (1) of the Constitution reads "every citizen alongside his position in law and Government and obliged to uphold the law and rule it with no kecualinya"; 2. That Article 28D paragraph (1) of the Constitution reads "Every every person has the right to recognition, guarantees, protection and legal certainty are fair and 3 equal treatment before the law" 3. That Article 28I doubt (2) Constitution reads "Per each person has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment". 4. That the provisions of article 18 paragraph (3) of law No. 8 of 1981 on the book of the law of Criminal Procedure Law set about breaking a warrant referred to in subsection (1) must be given to the families as soon as arrests were made; 5. That the applicant was a suspect citizen of Indonesia as a detention Warrant Number SP. Han/13/X/2012/Drugs, dated October 3, 2012 has been arrested on the orders of arrest Number SP. Hood/15/IX/20l2/Drugs dated September 28, 2012; 6. That the chronological starting from doing Pretrial efforts to arrest the appellant were as follows: the applicant had been arrested by the State police of the Republic of Indonesia Area of South Sulawesi Resort of Tana Toraja, roads number 1 Bhayangkara 91811 Makale craft workmanship, since Friday on September 28, 2012 at 6 pm CDT with the Warrant Number SP. Kap/I5/IX/2012/Drugs dated 28 September 2012 and has been detained on 3 Oklober 2012 with a detention Warrant Number SP. Han/13/X/20l2/Drugs, dated October 3, 2012. The applicant has been arrested after the arrest of one of the staff at Runi Karaoke Donald in Bua, Village Sangluia, district Kesu, Toraja Utara Regency, that place is adjacent to the food stalls belonging to the applicant. Runi was arrested while playing cards and gambling when digerebek by Police Resort previously Tana Toraja has got the information about the gambling. Something fell from the body of the then proven Runi is a narcotic type Shabu-Shabu. Runi later testified to the police who arrested him that sabu sabu derive from Irmania Bachtiar aka Mama Nio Applicant's wife and then the Police party moves into food stalls, which is approximately 50 metres to find Irmania Bachtiar aka Mama Nio wife Applicant and meet Irmania Bachtiar aka Mama Nio wife applicant and Applicant at the food stalls and after searched found 1 4 (one) empty plastic then alleged the former narcotics storage plastic type Shabu-Shabu the Applicant, instantly, Irmania Bachtiar a.k.a. Nio Applicant's wife, Mama and Runi arrested and taken towards Polres in Tana Toraja Makale craft workmanship which is approximately 14 km from the place of arrest and then submitted to the Drug Unit in Tana Toraja Makale craft workmanship Polres who at 20:00 bring the applicant to rummage through the home of the applicant which is located approximately 100 metres from the food stalls where the petitioner was arrested earlier. At the time of the search is not found any narcotic ingredients. From the moment of arrest and the pengeledahan of the applicant has been overrun by Drug Unit Investigators Polres in Tana Toraja Makale craft workmanship because it locked up in the cells of prisoners Polres of Tana Toraja in the process of capture and hold. On 22 October 2012 12.00 noon that a copy of the Warrant Number SP. Kap/IX/15/2012/Drugs dated 28 September 2012 and the Detention Warrant Number SP. Han/13/X/2012/3 dated Drug Oklober 2012 presented to the family of the applicant in this case the applicant's mother. After studying the process of investigation, especially the process of being arrested and then detained as well as delivery to the family a copy of the Warrant Number SP. Kap/l5/1/2012/Drug terlanggal 28 September 2012 and the Detention Warrant Number SP. Han/13/X/2012/drugs, dated October 3, 2012 that go beyond the next 24 (twenty-four) days after being arrested, then the applicant through the power of the law apply for a Pretrial plea turned that ended with the Pretrial Litigation Pretrial Verdict based on the number 01/P1D/PRE/2012/PN. MKL on 19 November 2012; 7. That the applicant is a citizen of Indonesia whose rights have been violated by police konstitusionalnya Republic of Indonesia Resort of Tana Toraja in the process of arrest and detention as set forth above with how slow the granting of effluent arrest warrants to the family that is delivered after 24 (twenty-four) days after being arrested, the provisions of article 18 paragraph (3) of law No. 8 of 1981 on the book of the law of Criminal Procedure Law set about cc: mail orders


5 arrest of scbagaimana referred to in subsection (1) must be given to his family shortly after the arrests were made; 8. That in practice are normative should have lifted arrest warrants delivered immediately where soon meant should be immediately after the arrests were made or within a grace period not too long after the arrest, but the words: soon, at once, not too long, nonetheless would be something not sure if legislation does not regulate definitively and unequivocally the span of time; 9. That in practice the implementation of the provisions of article 18 paragraph (3) of Law No. 8 of 1981 on the book of the law of Criminal Procedure Law set about: lifted arrest warrants referred to in doubt (1) must be given to his family shortly after the arrests were made, has been applied in different lerhadap of citizens of Indonesia, for effluent warrant given to the family just a few hours after the arrest , there are given to families one day selelah arrests, there were given to his family two days after the arrest, but beware the applicant lifted arrest warrants given to family 24 (twenty-four) days after arrest; 10. That the indication of nötigung has occurred to make the Applicant as a suspect in the event of law as outlined in the chronological order of the above very clearly fits the facts of law found in the stalls of the applicant when the arrest is plastic alleged former narcotic ingredients Shabu-Shabu and narcotic materials not found Shabu-Shabu, if only lifted arrest warrants delivered by "immediately" with the meaning of maximum 3 (three) days then the family will have the opportunity to find suitable companion to the Attorney or advocate before the review process too far conducted and the investigators investigators alau Polres Satnarkoba Tana Toraja is difficult to transform a plastic that is referred to as the former spot save material narcotics Shabu-Shabu became illegals Shabu-Shabu and basis menelapkan an applicant as a suspect;

6 11. That of plastic alleged former place of keeping illegals Shabu-Shabu is illogical and entry diakal can be used as samples in forensic laboratories to determine substances narcotics Shabu-Shabu who subsequently relied upon the applicant's designation as a suspect; 12. That the applicant's self worth against suspected what was in 2010 was indeed wearing material narcotics Shabu-Shabu was made the target of the operation and forced into a suspect with the conviction of people who ever put material narcotics Shabu-Shabu in her urine test if it still contained material narcotics Shabu-Shabu, this should not be allowed because it will be vulnerable to coercion will and violated the constitutional rights of citizens of Indonesia will also make its former users ' Setup did not have the opportunity to repent alau stopped wearing while on the side of Iain Act No. 35 lahun 2009 about Illegals make room for former drug users to undergo rehabilitation; 13. That submission of effluent warrant selelah 24 (twenty-four) days after the petitioner was arrested as the above description clearly had violated the applicant's constitutional rights because the legislation does not interpret or explain definitively and logically span of the word "immediate" in the provisions of article 18 paragraph (3) of law No. 8 of 1981 on the law of the book of the law of criminal procedure; 14. That the sole judge in Pretrial Litigation Ruling Number 0I/PID/PRE/20I2/PN. MKL on 19 November 2012 interpret freely up to 24 days after the arrests were made as meets the criteria dipertimbang the meaning of the word "immediate" in that provision because, according to the judge's consideration in legislation are not spelled out exactly how long the time span for the Word immediately (vide p. 39 the third paragraph of case Pretrial Ruling number 01/PID/PRE/2012/PN. MKL on 19 November 2012); III. JURIDICAL ANALYSIS and POSITA 1. That since the process of arrest, detention and process Applicant self against Pretrial there have been some violations of the law as follows: 7-Drug Unit Investigators that according to the Polres of Tana Toraja Makale craft workmanship in the applicant being caught hands; -That the consideration of the sole judge in Pretrial Litigation Ruling number 01/PID/PRE/20I2/PN. MKL on 19 November 2012 also States the applicant has caught the hand; -That in the redaksional arrest warrant Number SP. Kap/IX/15/2012/Drugs dated September 28, 2012 on considerations Consideration points is written: "That for the purposes of investigation or investigation and Crime, and the perpetrators of the offences or for those who have been called two times in a row does not come without a reason, then have to issue a Warrant"; -That in the arrest warrant Number SP. Kap/IX/15/2012/Drugs dated September 28, 2012 is ordered to: 1. Bud Lomo. Rank/NRP: Bripka/58040247, Office: angt. Intelkam sat, 2. Paul Pakiwa. Rank/NRP: Brigpol/85100075, position: Associate Investigators, 3. Marthen Rerung, SH, rank/NRP: BrigpoI/83050747, position: Associate Investigators. 4. Hecza Pasulu, base/NRP: Briptu/88090548, Office: angt. Sat Intelkam. 5. Hendra Frengki, rank/NRP: Briptu/89010128, Office: angt. Sat Intelkam. 6. Fritz Alexander Leaso? Rank/NRP: Briptu/87031531; -That the Bud Lomo, rank/NRP: Bripka/58040247 in his statement as a witness in front of the Pretrial proceedings explains after the applicant, Irmania Bachtiar aka Mama Nio Applicant's wife, Runi was arrested on the same day and time so all three Drug Unit submitted to the Polres of Tana Toraja and the arrest of the trio was preceded by information the existence of gambling so obviously not because of the Warrant Number SP. Kap/IX/15/2012/Drugs dated 28 September 2012 and not true consideration in arrest warrant Number SP. Hood/15/lX/2012/Drugs dated September 28, 2012 who substantially asserts a warrant issued after that was ordered to be arrested had called two times in a row; -That the Applicant does not properly caught hands because at the time the 8 arrested up to searches even now drugs that are not found in the sense of carrying, master and has stipulated in Act No. 35 of 2009 about Narcotics; -That the result was not told immediately lifted a warrant referred to in subsection (1) must be given to his family shortly after the arrests were made then the applicant's family after 24 days i.e. on 22 October 2012 new legally can be addressing to find Lawyers but it tersebul been very late because the applicant had been upgraded into the suspect and has been detained; -That the extension of the arrest of as many as two (2) consecutive partake is not the authority of the Republic of Indonesia but Police Investigators into the authority of the National Narcotics Agency Investigators as set forth in Article 75 Article 76 junto letter g Law Number 35 of 2009 about Narcotics and article 84 Law Number 35 of 2009 about Narcotics Drug Unit requires Polres Tana Toraja to immediately deliver to the National Narcotics Agency Investigators about the investigation of the case is clear and so are the provisions of Act No. 35 of 2009 about Narcotics distinguish between the authorities of the Republic of Indonesia Police Investigators in this unit of Tana Toraja Polres Drug authorities and Investigators of the National Narcotics Agency: 2. That in Act No. 8 of 1981 on the book of the law of criminal procedure did not set about the definition of how long the word "immediately" so that Police Investigators of the Republic of Indonesia as well as a single Judge in a Pretrial Litigation Ruling number 01/PID/PRE/2012/PN. MKL on 19 November 2012 interpret freely up to 24 days after the arrests were made as meets the criteria dipertimbang the meaning of the word "immediate" in that provision because, according to the judge's consideration in legislation are not spelled out exactly how long the time span for the Word immediately (vide p. 39 the third paragraph of case Pretrial Ruling number 01/PID/PRE/20I2/PN. MKL on 19 November 2012):


9 3. That the application of Article 18 paragraph (3) of Law No. 8 of 1981 on the book of the law of criminal procedure by Police Investigators of the Republic of Indonesia in particular about the meaning of the word "immediately" the timing is uncertain and uneven for Indonesia citizens in each case so that it does not guarantee legal certainty that make citizens be treated equally before the law not (discriminatory), because the application of the word "immediate" in these provisions there is performed a few hours after arrests were made applied, there is 1 (one) day, 2 (two) days up to 1 (one) week after arrests were made; 4. That the Verdict in the case as Litigation Pretrial number 01/PID/PRE/2012/PN. MKL on 19 November 2012 word "soon" had been meant for 24 (twenty-four days) selelah arrests were made so for 24 (twenty-four days) families who were arrested in this case the applicant's family is not given the opportunity to know about legally supposition crime what is disangkakan and can not seek mentoring from an advocate or attorney during the Investigation done so for 24 (twenty-four days) the applicant's legal rights have been restricted by the investigators in the case; 5. That in the provision of article 27 paragraph (1) of the Constitution which regulates about: All citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya, also very clearly organized Article 28D paragraph (1) of the Constitution reads, "everyone has the right of each base recognition, guarantees, protection and legal certainty of fair and equal treatment before the law" , as well as Article 28I paragraph (2) of the Constitution reads, '' everyone has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment ". so it refers to the application of the Law Article 18 paragraph (3) of Law No. 8 of 1981 on the book of the law of Criminal Procedure Law by Police Investigators of the Republic of Indonesia in particular about the meaning of the word "immediately" as has been described above is clearly a legal dispute has occurred needs to be decided definitively about the "definition of the word" promptly "in article 18 paragraph (3) of the 10 Law No. 8 of 1981 on the book of the law of criminal procedure and because the conflict has occurred between the legislation and the The Constitution or the Constitution of 1945 then it has become a competence of the Court of Konslitusi as provided for in article 3 letter a Law Number 24 year 2003 on the Constitutional Court; 6. That the Pretrial judges as described above is actually the object of hope so that the applicant's rights as a citizen of Indonesia that is guaranteed by the Constitution can be guaranteed even in the award is final and in practice the application of the law, the more support the occurrence of conflict law anlara Article 18 paragraph (3) of law No. 8 of 1981 on the book of the law of Criminal Procedure Law with article 27 paragraph (1) of the Constitution Article 28D, paragraph (1) of the Constitution and article 28I paragraph (2) of the Constitution and because of legal issues should be decided by the Assembly of the noble Court of Judge Konslitusi; 7. That the indication of nötigung has occurred to make the Applicant as a suspect in the event of law as outlined in the chronological order of the above very clearly fits the facts of law found in the stalls of the applicant when the arrest is alleged former plastic pin material narcotics Shabu-Shabu and narcotic materials not found Shabu-Shabu, if only lifted arrest warrants delivered by "immediately" with the meaning of a maximum of 3 (League) days then the family will have the opportunity to find suitable companion to the Attorney or advocate before the review process too far done and the Investigator or Investigators Polres Satnarkoba Tana Toraja is difficult to transform a plastic that is referred to as the former spot save material narcotics Shabu-Shabu became illegals Shabu-Shabu and define the applicant as a basis of the suspect; 8. That the plastic of the alleged site of the former keep illegals Shabu-Shabu is illogical and entered in the sense can be used as samples in forensic laboratories to determine substances narcotics Shabu-Shabu who subsequently relied upon the applicant's designation as a suspect;

11 9. That ought to be presumed against the Applicant himself was in 2010 was indeed wearing material narcotics Shabu-Shabu was made the target of the operation and forced into a suspect with the conviction of people who ever put material narcotics Shabu-Shabu in her urine if tested still contained material narcotics Shabu-Shabu, this should not be allowed because it will be vulnerable to coercion will and violated the constitutional rights of citizens of Indonesia will also make its former users ' Setup did not have the opportunity to repent or cease to wear while on the other side Act No. 35 of 2009 about Illegals make room for former drug users to undergo rehabilitation; 10. That submission of effluent warrant selelah 24 (twenty-four) days after the petitioner was arrested as the above description clearly had violated the applicant's constitutional rights because the legislation does not interpret or explain definitively and logically span of the word "immediate" in the provisions of article 18 paragraph (3) of law No. 8 of 1981 on the law of the book of the law of criminal procedure; 11. That the sole judge in Pretrial Litigation Ruling number 01/PID/PRE/20I2/PN. MKL on 19 November 2012 interpret freely up to 24 days selelah dipertimbang arrests were made as meets the criteria of meaning of the word "immediate" in that provision because, according to the judge's consideration in legislation are not spelled out exactly how long the time span for the Word immediately (vide p. 39 the third paragraph of case Pretrial Ruling number 01/PID/PRE/2OI2/PN. MKL on 19 November 2012): 12. That upon the whole of the above description may very clearly the importance of the noble Assembly of Judges of the Constitutional Court that examine and Test Application to disconnect this purport to give the Material firmly and surely over the word "soon" in Article 18 paragraph (3) of law No. 8 of 1981 on the book of the law of criminal procedure, whether meant 1 (one) day, 2 (two) days or three (3) days after the arrest warrant lifted pengkapan delivered to families living within one district/city and one (1) week, 2 (two) weeks or 3 12 (three) weeks for families who live outside the County/city in order that equality before the law can be guaranteed and does not conflict with the Constitution or the Constitution of 1945; IV. PRINCIPAL APPLICATION 1. Granted the petition of the applicant for the entirety; 2. Declaring the provisions of article 18 paragraph (3) of Law No. 8 of 1981 on the book of the law of criminal procedure does not apply, as long as the phrase the word "soon" meant ' no more than three (3) days after the arrest warrant lifted should be conveyed to the families for families living in one area of the same district/city and the Resort Police making arrests; 3. Declaring the provisions of article 18 paragraph (3) of law No. 8 of 1981 On Kilab law of criminal procedure does not apply, as long as the phrase the word "soon" is meant no more than 1 (one) week after arrest warrant lifted should be conveyed to the families for families living in one province but the area outside of the kabupaten/kota with an area of the Resort Police making arrests; 4. Declaring the provisions of article 18 paragraph (3) of Law No. 8 of 1981 On the book of the law of criminal procedure does not apply, as long as the phrase the word "soon" is meant no more than 1 (one) week after arrest warrant lifted should be conveyed to the families for families living in one province but outside of kabupaten/kota with an area of the Resort Police making arrests; 5. Orders the loading of this ruling in the State as it should be: or if the Tribunal Judges the Court held other, please seadil-fair Award (ex aequo et bono):


13 [2.2] considering that to prove the evidence if possible, the claimant has submitted evidence that writing letters/marked evidence of P-1 to P-4 of evidence, as follows: 1 P-1 Photocopy Evidence Warrant Number SP. Kap/IX/15/2012/drugs, September 28, 2012; 2 proof of P-2 Photocopying Letters restraining order Number SP. Han/13/IX/2012/Drugs, dated October 3, 2012; 3 P-3 evidence of Photocopying Court ruling Country Makale craft workmanship number 01/PID/PRE/2012/PN. MKL, dated November 12, 2012; 4 proof of P-4 photocopies of the letter of receipt dated October 22, 2012; [2.3] considering that the petition against the applicant, the Government provides information in the trial on February 21, 2013 and have submitted affidavits received by the Registrar of the Court on 28 may 2013 in anyway explains as follows: i. PRINCIPAL contents of the PETITION of the APPLICANT 1. That the applicant's constitutional rights have been violated by the police of Republic of Indonesia Resort of Tana Toraja in the process of arrest (arrest warrant Number SP. Hood/15/IX/2012 Drugs dated September 28, 2012) and detention (Detention Warrant Number SP. Han/13/X/2012 Drugs dated 3 October 2012) over the applicant because it has been slower to give up Catching myself Mail copies of the applicant's family to the Applicant where the effluent letter delivered after the arrest of 24 (twenty-four) days after the arrest, it is not in accordance with the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE that copies a warrant referred to in subsection (1) must be given to his family shortly after the arrests were made. 2. That submission of effluent warrant 24 (twenty-four) days after the petitioner was arrested, had violated the applicant's constitutional rights because the legislation does not interpret or explain definitively and logically span of the word "immediate" in the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE.

14 3. That the application of Article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE by POLICE Investigators in particular about the meaning of the word "immediately" the timing is uncertain and uneven for CITIZENS in any case, so there is no guarantee the legal certainty that make citizens be treated equally before the law not (discriminatory). 4. That the applicant felt aggrieved in respect of the existence of a Pretrial Ruling number 01/PID/PRE/2012/PN. MKL on 19 November 2012 which substantially stated "refused the applicant's application for pretrial" because according to the pretrial Judge consideration the applicants interpret the word "soon" is also freely due to the in laws are not spelled out exactly how long the time span for the word "immediately". 5. Thus the norms contained in the law a quo, deemed to have violated the constitutional rights of the applicant so considered contrary to article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution. II. ABOUT THE POSITION OF THE LAW (LEGAL STANDING) OF THE APPLICANT. In accordance with the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011, stating that the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law, all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions. The above provision is emphasized in the explanation, that the definition of "constitutional rights" are the rights set forth in the Constitution of the Republic of Indonesia in 1945.

15 Accordingly, so that a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the Constitution of the Republic of Indonesia in 1945, then the first must explain and prove: a. credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 about the Mahakamah of the Constitution, as has been outlined by law number 8 of 2011; b. rights and/or constitutional authority in the qualification which is considered to have been harmed by the enactment of legislation that diujinya; c. loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned done. Further the Constitutional Court Verdict ejak Number 006/PUU-III/2005 and decision number 11/PUU-V/2007, as well as subsequent rulings have given understanding and restrictions cumulatively about loss of rights and/or constitutional authority that arise due to the enactment of legislation under article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as has been changed by law No. 8 year 2011 must meet the five terms , namely: a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. the constitutional rights of the petitioners considered the Claimant was harmed by an act that was tested; c. Constitutional disadvantage applicants in question are specific (Special) and actual or potential yangmenurut are at least reasonable reasoning can be ensured would happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition, then the losses would not be postulated constitutional or no longer occur; Over things, then according to Government of unquestionable interest of the applicant is already right as the party considers the rights and/or authority konstitusionalnya harmed by the enactment of Article 16 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure also whether there is a constitutional disadvantage applicants in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen , and whether there is a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested. Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: 1) as the applicant as referred to in article 51 paragraph (1) of the ACT the COURT; 2) losses of rights and/or constitutional authority given by the Constitution arising from the enactment of laws that appealed Against the applicant's legal position testing, the Government can give explanations as follows: a. That has to be differentiated between testing the constitutionality of norms of the legislation (constitutional review) and the issues that arise as a result of the implementation of a norm of the law in some countries (e.g. Germany or South Korea) inserted into the scope of the question of the lawsuit or complaint the constitutional (constitutional complaint) that the Authority put on trial are also provided to the Constitutional Court. In terms of the first (constitutional review), which is in question is whether a law contravenes norms or not by the Constitution, while in the second case (constitutional complaint), which questioned whether an act of public officials (or do things being public officials) had violated a fundamental right (basic rights), which among other things can occur because public officials in question erred in interpreting the norms of law in its application. b. under article 24C paragraph (1) of the Constitution, the Court expressly stated to only have the authority to inspect, judge, and hang up against if a law goes against the norm or not by the Constitution (constitutional review), while against the


17 issues mentioned later (constitutional complaint), up to now, the Constitution doesn't set them up; c. That after reading carefully the petition of the applicant or the applicant's information in the trial, according to the Government is indeed in question the applicant is more of a constitutional complaint rather than a judicial review or constitutional review. However, the problem posed by the applicant as a test application for the legislation against the Constitution with the proposition that the provisions in the criminal code and CODE of CRIMINAL PROCEDURE which petitioned testing it contrary to the articles of the CONSTITUTION of 1945, d. that the weaknesses or deficiencies that occur in the process of implementation of norms is not true if the path is resolved by unplugging the norm was. For if that is done then every time we let down by the practice of applying a norm of law, in casu the norms of criminal law legislation, and it was resolved by way of repeal norms of legislation of criminal law, criminal law presumably will never have a reason and a place to live in the community. Furthermore, when there are any weaknesses or deficiencies that occur in the process of implementation of norms in casu the norms of the legislation as experienced by the applicant number 3/PUU-X/2013 where effluent new arrest warrants delivered 24 days after the arrests, is unprofessional actions (unprofessional conduct) by the police of RI. The applicant can report such conduct to the unprofessional actions of the Division of police surveillance Division (References) or may report deviations that occur to State institutions established for it such as KOMPOLNAS. In addition to our legal system telam give way to demand justice by institutions or through judicial pre-trial remedies (appeal, Cassation, PK) based on the above, the Government argued in this appeal the appellant did not qualify as a party that has a position of law (legal standing) as intended by the provision in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Law number 8 of 18 in 2011 as well as based on the rulings of the Constitutional Court. Therefore, according to the Government is the right one if his Excellency the Chairman of the Constitutional Court Judges Assembly/wisely declare the petition of the applicant cannot be accepted (niet ontvankelijk verklaard). Nevertheless the Government handed over entirely to the Venerable Chairman/Assembly of judges the Constitution to consider and judge whether the applicant has the legal position (legal standing) or not, as specified by article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as it has changed with Act No. 6 of the year 2011, as well as based on the rulings of the Constitutional Court earlier (vide Verdict Number 006/PUU-III/2005 and decision number 11/PUU-V/2007). III. GOVERNMENT EXPLANATION OVER the APPLICATION for TESTING the laws that APPEALED against by the APPLICANT that the applicant's propositions, the Government still contends that the provisions of article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) is not contrary to article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945 with the following reasons : 1. That the arrest and panahanan can only be made on the basis of written orders by officials authorised by law and only in the event of and in a manner that is regulated by legislation, (except in the event of being caught hands) 2. The arrest warrant that includes the identity of the suspect and mentions the reasons of arrest as well as a brief description of the crime and dipersangkakan matter where he examined. In addition to the issued to persons who are arrested, effluent arrest warrants also were given to his family soon after the arrest. 3. These provisions are intended to inform the family of the man who was arrested at the same time give legal certainty to the 19 families who were arrested on the reasons of arrest and the place of people who currently reside in the capture. 4. That specific in terms of what is regulated in article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE, namely towards effluent warrant referred to in subsection (1) must be given to his family soon after the arrest, carried out to accommodate the demands of the community awareness and gives legal certainty to families who were arrested. 5. That in the Large Indonesian Language Dictionary issue 2, issue Balai Pustaka, the word "immediately" as a word or phrase petitioned appealed by the applicant, it means make haste, hurry, rush, so should have lifted arrest warrants to be delivered to the family, then in the shortest-in short, the soonest possible, selekas-lekasnya, and is hurriedly so that immediately came to his family's Party. 6. However, in practice, the application of the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE of barriers or constraints that may be faced by the investigators in the case of delivery of mail to the house arrest lifted the suspect as unambiguously address family, the location of the arrest, as well as related technical issues a delivery lifted arrest warrants. Regardless of the constraints which may be encountered, copy the arrest warrants remain mandatory delivered immediately to the family of the person detained. 7. That the weaknesses or deficiencies that occur in the process of implementation of norms or norms in the implementation of the order of the practice, in casu as appealed by the applicant such as for example in the notification of arrest to his family against the new until within 24 working days. According to the Government of such sign in the category of actions not professional or unprofessional conduct by apparatus provided the authority for it. 8. That there is no loss of constitutional rights of the applicant over the article a quo, because in terms of the delay given by the investigating POLICE and 20 to the applicant's family is concerned the implementation of norms and in this case the POLICE have given investigators copies of arrest warrants to the family of the applicant so that the verdict number 01/PID/PRE/2012/PN. MKL on 19 November 2012 any pretrial plea rejected Applicants because of invalidity concerning the arrest was lifted when the arrest warrant was not given to keluargaTersangka. 9. Pretrial Ruling number 01/PID/PRE/2012/PN. MKL date November 19, 2012 has been in accordance with the procedure and are guaranteed by law as stated in Article 77 and article 78 CODE of CRIMINAL PROCEDURE and in line with the given State protection in article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945. 10. That against the arrest of the applicant have been based on the provisions of the CODE of CRIMINAL PROCEDURE article 17 where the reason for the arrest of a suspect is a person of such alleged hard doing criminal acts and allegations were based on a strong beginning of sufficient evidence. IV. explanations and conclusions based on the foregoing arguments, the Government appealed to the Honorable Chairman/the Constitutional Court Judges Assembly check and disconnect the test application of article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE), can give the verdict as follows: 1. reject plea the applicant testing entirely or Sha-whether appeal the Applicant testing is unacceptable (niet ontvankelijk verklaard); 2. Accepts the Government's overall Description 3. Declaring the provisions of article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure is not contrary to article 27 not contrary to subsection (1), section 28 D paragraph (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945;


21 4. Declared Article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure still has legal force and effect as binding on the entire territory of the State Union of Republic of Indonesia. [2.4] considering that the petition against the applicant, the House of representatives provides information in the trial on February 21, 2013 and have submitted affidavits received by the Registrar of the Court on March 26, 2013, in anyway explains as follows: 1. The position of the law (Legal Standing) of the applicant against the propositions of the applicant as set forth in the petition for a quo, the HOUSE of REPRESENTATIVES in the delivery of its views in advance outlining the legal position concerning (legal standing) of the applicant. Qualifications that must be met by the applicant as a Party have been regulated in the provisions of article 51 paragraph (1) of LAW Number 24 year 2003 on the Constitutional Court (hereinafter abbreviated as the ACT of the Constitutional Court), which stated that "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the institutions of State. " Rights and/or constitutional authority in question the provisions of article 51 paragraph (1), reaffirmed in the explanation, that "the definition of" constitutional rights "are the rights set forth in the Constitution of the Republic of Indonesia in 1945." Provision of an explanation of article 51 paragraph (1) confirms this, that only the rights explicitly regulated in the Constitution of the Republic of Indonesia in 1945 that included "constitutional rights". Therefore, according to the ACT on the Constitutional Court, in order that a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the CONSTITUTION of the Republic of Indonesia 22 Countries in 1945, then the first must explain and prove: a. Credentials as the applicant in the application for aquo as stipulated in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; b. rights and/or authority referred to in konstitusionalnya "explanation of article 51 paragraph (1)" is considered to have been harmed by the enactment of the legislation. Regarding the constitutional parameters of loss, the Constitutional Court has given understanding and limitation of losses arising from the constitutional enactment of a law must meet the five terms (vide Verdict Number 006/PUU-III/2005 and no. 011/PUU-V/2007) is as follows: a. the existence of rights and/or constitutional authority the applicant granted by the CONSTITUTION of the Republic of Indonesia in 1945; b. that rights and/or constitutional authority the Applicant is deemed by the applicant have been wronged by an act that was tested; c. that the loss of rights and/or constitutional authority the applicant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then loss and/or constitutional authority who postulated it will not or no longer occur. In the fifth such terms are not met by the Applicant in the case of testing the law with quo, then the applicant has no legal position qualification (legal standing) as a party to the applicant. Regarding the position of the applicant, inform the HOUSE of REPRESENTATIVES holds that the applicant must be able to prove first whether the applicant as a party which considers the right and/or authority konstitusionalnya harmed over the enactment of provisions that petitioned to be tested, especially in the presence of reconstruct the loss against the right and/or authority to konstitusionalnya as the impact of the passage of provisions that 23 petitioned to be tested. Against the position of the law (legal standing), the HOUSE of REPRESENTATIVES handed over entirely to the Chairman of the Constitutional Court Judges Assembly/his Majesty to consider and assess whether the applicant has the legal position (legal standing) or not as set forth in article 51 paragraph (1) of the law on the Constitutional Court and on the basis of the ruling of the Constitutional Court the number 006/PUU-III/2005 and no. 011/PUU-V/2007. 2. the CODE of CRIMINAL PROCEDURE against the top Test the application for testing the CODE of CRIMINAL PROCEDURE as outlined above, the HOUSE of REPRESENTATIVES delivered a description as follows: 1. That the applicant's opinion against the just stating the phrase "soon" in the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE which reads "effluent warrant referred to in subsection (1) must be given to his family" very soon "after the arrest", in pelaksanaanya by law enforcement has different i.e. some are one-day or even up to a week, with 24 (twenty-four) days after arrest as experienced by the applicant giving rise to legal uncertainty and discrimination against the applicant and therefore the provision of a quo contravenes article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution, the HOUSE of REPRESENTATIVES gave the following information: a. That the arrest was an act of investigators in the form of restraint while the freedom of the suspect or accused when there is sufficient evidence to the interests of the investigation , investigation or prosecution. Because the arrest was an event of restraint against the freedom of a person then in making arrests penydik should pay attention to things that are regulated in the CODE of CRIMINAL PROCEDURE, namely among others: arrest warrant against a man suspected of committing a criminal offence on the basis of hard evidence of the beginning. Implementation of the arrest. conducted by officers of the State police of the Republic of Indonesia by showing a letter of assignment and gave suspects arrest warrant that lists the identity of the suspect and mentions the reasons of arrest as well as a brief description of the crime and dipersangkakan matter where he examined.

24 hands caught in terms of arrest without a warrant is carried out, provided that the catcher must immediately hand over caught with evidence available to investigators or investigators helpers. Effluent a warrant referred to in subsection (1) must be given to his family shortly after the arrests were made. b. That are associated with things that are appealed by the applicant namely testing Article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE which reads "effluent warrant referred to in subsection (1) must be given to his family soon after the arrest". PARLIAMENT argues the provisions of article a quo which requires investigators delivered a letter to the house arrest lifted immediately after penagkapan done, is one form of providing legal certainty for families who were arrested. c. that if in practice the application of the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE, investigators in conveying the effluent there time difference arrest mail delivery to the family who was arrested because there is no limit on the span of the word "immediately" so that mengaibatkan the occurrence of discrimination as postulated by the applicant, the HOUSE argues, to provide copies of arrest warrants to the family of the suspect, such irrespective of the barriers or constraints that may be faced by the investigators in the case of delivery of mail to the house arrest lifted suspects there in any event capture penagkapannya mail delivery, the effluent to the family who were arrested may vary with time. It is according to the views of PARLIAMENT are not included in the categories of the understanding of discrimination as stated in article 1 point 3 of LAW Number 39 of 1999 on human rights which States: "Discrimination is any limitation, harassment, or exclusion directly or indirectly based on the distinction of human beings on the basis of religion, tribe, race, ethnic, group, class, social status, ekomomi status, sex, language, political beliefs. that result in a reduction, deviation or


25 removal of the recognition, implementation or use of the human rights and basic freedom in the life of the individual as well as collective good in the fields of politics, economy. legal, social, cultural. and other aspects of life "2. Based on your description and explanation as described above, the HOUSE of REPRESENTATIVES, article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE is not contrary to the Constitution. Such a description of the HOUSE presumably this description can be a material consideration for the glorious Constitution Judges Majleis in checking, disconnect and adjudicate the matter a quo with verdict: 1. Accept the Description of the HOUSE as a whole; 2. Declaring the provisions of article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure is not contrary to the provisions of the Constitution of the Republic of Indonesia in 1945. 3. Declaring the provisions of article 18 paragraph (3) – Law No. 8 of 1981 on the law of criminal procedure still have the force of law as binding. [2.5] considering that the applicant received written conclusions conveyed in Clerk on April 1, 2013 and the Government received in the Registrar of the Court on 28 may 2013, which in anyway the parties stick to his statement; [2.6] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the news events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition of the applicant is the application for testing the constitutionality of article 18 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional sheets of the Republic of Indonesia Number 3209, hereinafter the CODE of CRIMINAL PROCEDURE), which States: "connecting with a warrant referred to in subsection (1) of 26 should be given to his family shortly after the arrests were made" against: article 27, paragraph (1) of the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution), which States: "all citizens simultaneously its position in law and Government and must respect the law and Government with no kecualinya." Article 28D paragraph (1) of the Constitution, which States: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law." Article 28I paragraph (2) of the Constitution, which States: "everyone has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment." [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) in advance will take into account: a. the authority of the Court to adjudicate a petition for quo; b. the position of the law (legal standing) of the applicant to apply for a quo; The authority of the Court [3.3] considering that under article 24C paragraph (1) of the Constitution, article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court as amended last by law number 4 by 2014 about the determination of the Government regulation of a replacement law number 1 Year 2013 on the second amendment in the Law Number 24 year 2003 concerning the Constitutional Court into law (Republic of Indonesia Sheet by 2014 the number 5 Additional Sheets, the Republic of Indonesia Number 5493, hereinafter referred to as the ACT of the CONSTITUTIONAL COURT), as well as to article 29 paragraph (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076, hereinafter the ACT 48/2009), one of the powers of the Constitutional Court is to adjudicate on the first level and 27 last award is final to examine legislation against the Constitution; [3.4] considering that the applicant's plea is to test the constitutionality of the Act, in casu Article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE against the Constitution, which became one of the Court's authority, so therefore the Court's jurisdiction to adjudicate a petition for quo; The position of the law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who assume the rights and/or constitutional authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the individual citizen of Indonesia (including groups of people having the same interests); b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: a. the applicant as referred to in Article 51 paragraph (1) of the ACT the COURT; b. loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that Court since the ruling of the Constitutional Court the number 006/PUU-III/2005, dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007, dated September 20, 2007, as well as subsequent rulings held that the loss of rights and/or constitutional authority 28 as stipulated in article 51 paragraph (1) of the ACT the COURT must meet five criteria, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. the constitutional harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.7] considering that the claimant substantially postulated as an individual citizen of Indonesia at the time the petition was filed has been arrested by the State police of the Republic of Indonesia resort of Tana Toraja with the Warrant Number SP. Kap/IX/15/2012/drugs, dated September 28, 2012 over the alleged possession of narcotics. Upon arrest, the copy of the warrant of arrest and detention warrant the applicant's family received on October 22, 2012; That the applicant assumed the length of period of delivery of a copy of the warrant of arrest to the family of the applicant because there is no clear provisions regarding the length of time the delivery of arrest warrants to the family of the applicant on the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE, particularly on the phrase "soon". This is according to the applicant have resulted in the violation of the applicant's constitutional rights, namely the right to legal positions in the equation, the right to recognition, guarantees, protection and legal certainty are fair, and the right to be free from discriminatory treatment as referred to in article 27C paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the CONSTITUTION of 1945; [3.8] weighing the evidence for considering the losses that have been experienced by the applicant is associated with the applicant's constitutional rights, according to the Court, the applicants have an interest against a provision in the CODE of CRIMINAL PROCEDURE


29 in particular regarding the procedures for arrest, so that there is a causal relationship between the harm experienced by the applicant with the provisions of the norm of a quo. Based on the foregoing, the applicant has the legal position (legal standing) to apply for a quo; [3.9] considering that because of the Court is authorized to adjudicate a petition for quo and the applicant has the legal position (legal standing) to apply for a quo then the Court will consider the subject matter of the petition; The subject matter of the petition [3.10] considering that the Applicants argued that Article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE States, "Effluent warrant referred to in subsection (1) must be given to his family shortly after the arrests were made." is contrary to article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution because there is no certainty about the definition of the word "immediately" to the norms of a quo , so investigators interpret and implement the delivery periods of effluent that arrest warrants are different. This is according to the applicant raises legal uncertainty gives rise to inequality of treatment before the law and give rise to discrimination against a citizen; [3.11] considering that the evidence against them, the Government has delivered a verbal description of the Council dated 21 February 2013 and gave the affidavits are received at the Registrar on May 28, 2013, the more information is contained in the Lawsuit, which Sits in anyway explains as follows: a. that the word "immediately" as quickly, fast means appealed, rush, so should have lifted arrest warrants to be delivered to the family , in the shortest-in short, the soonest possible, selekas-lekasnya, and is hurriedly in order to advance his family; b. that the weaknesses or deficiencies that occur in the process of implementation of norms or norms in the implementation of the order of the practice, in casu as appealed by the applicant such as for example, in the notice of 30 against the arrest to his family is new to within 24 working days, according to the Government of such categories include actions not professional or unprofessional conduct by apparatus provided the authority for it; c. that there is no loss of constitutional rights of the applicant over the Article a quo, because in terms of the delay given by the investigating Police to the family of the applicant is concerned the implementation of norms and in this case the Police have given investigators copies of arrest warrants to the family of the applicant so that the verdict of the number: 01/PID/PRE/2012/PN. MKL, dated November 19, 2012, any pretrial plea rejected Applicants because of invalidity concerning the arrest was lifted when the arrest warrant was not given to the family of the suspect. [3.12] considering that the petition against the applicant, the House of representatives has delivered a verbal description in the trial on February 21, 2013, the more information is contained in the Lawsuit, which Sits in anyway explains as follows:-that if in practice the application of the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE, investigators in conveying the effluent there time difference arrest mail delivery to the family who was arrested because there is no limit on the span of the word "immediately" , resulting in the occurrence of discrimination as postulated by the applicant, the HOUSE argues, to provide copies of arrest warrants to the family of the suspect is not in spite of barriers or obstacles that may face the investigators in the case of delivery of mail to the house arrest lifted a suspect, so that in any event the arrest, delivering a letter to the family of his capture effluent captured may vary with time. It is according to the views of PARLIAMENT are not included in the categories of the understanding of discrimination as stated in article 1 point 3 Law Number 39 of 1999 on human rights which States: "Discrimination is any limitation, harassment, or exclusion directly or indirectly based on the distinction of man over 31 basic religion, tribe, race, ethnic, group, class, social status, ekomomi status, gender, language , political beliefs. resulting irrelevancy reduction, or removal of the recognition, implementation or use of the human rights and basic freedom in the life of the individual as well as collective good in the fields of politics, economy. legal, social, cultural. and other aspects of life ". The opinion of the Court [3.13] considering that the issue of constitutionality in the petition for a quo is, whether the phrase "soon" in article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE is contrary to the Constitution because of legal uncertainties have led to discrimination and preferential treatment, contrary to the fundamental equation of the position before the law? [3.14] considering that against such constitutional issues, according to the Court, although a citizen has been designated as a suspect or has been sentenced for an act a criminal offence, but the citizen retains the right konstitusioal that is guaranteed by the Constitution. A citizen who was arrested and subsequently detained by the investigating authorities have an interest to set up any kind of advocacy and legal protection. It is very important for the families of the suspects to find out the whereabouts of the suspect as well as the reason for the arrest and detention against suspects in the shortest time possible to prepare all forms of legal protection for suspects. This is guaranteed by the Constitution. According to the law of criminal procedure, any suspects have rights under Article 68 to article 50 to the CODE of CRIMINAL PROCEDURE which among them is the right to immediate review, submitted to the Court and stand trial, the right to legal assistance, and the right to choose a legal counsel/lawyer. Notification to the family suspects it is essential and urgent, one of which is intended to support the rights of tegaknya. Furthermore, with a notice immediately to the family of the suspect can be obtained the assurance of whether the question was arrested, kidnapped, or missing; [3.15] considering that the phrase "immediately" on article a quo may imply that in the law of criminal procedure, after the arrests against 32 suspects, the notice to the family of the suspect must be delivered in a short time so that the suspects can soon get his rights. When such notice was not immediately delivered then it could potentially give rise to a violation of the rights of the suspect, because of the existence and legal status of those concerned were not immediately known. According to the Court, the absence of a definite formulation regarding the length of time that the word "promptly" in article a quo can lead investigators to interpret the different parties for each case is handled. Things like this can give rise to legal uncertainty and potentially give rise to injustice by the investigator; That according to the law of criminal procedure forced every effort made in investigation or prosecution by the authorities can be controlled through pretrial. This is regulated in article 77 to 83 with article CODE of CRIMINAL PROCEDURE. In these provisions, the suspect has the right to submit a pretrial against certain abuses committed by the investigators in the process of investigation, which included the arrest and imprisonment. If the provision in question does not have a clear formula so it becomes the norm, problem is no longer just a problem of violations in the implementation of the norms. Based on this, according to the Court, article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE did not meet the principle of legal certainty is fair because the provision gives rise to different interpretations. A different interpretation by the law enforcers can then give rise to discriminatory treatment against the suspects, so that according to the Court, the applicant's plea of reasonable propositions according to the law, however, if the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE stated does not have binding legal force so precisely can eliminate the duty of investigators to convey a copy of the arrest warrant, so that thus give rise to a breach of the principle of legal protection and legal certainty. Therefore, for the sake of legal certainty, the Court needs to interpret the phrase "immediately" regarding the provisions of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE; That according to the Court, taking into account developments in telecommunications infrastructure and facilities as well as correspondence, the time period should be for investigators to deliver a copy of the arrest warrant


33 to the family of the suspect is not more than 3 x 24 hours since the arrests published. However, taking into account also the difference in distance, scope and geographical conditions of each region in the whole of Indonesia, there is a possibility of it takes a longer time period of 3 x 24 hours for delivery of a copy of the arrest warrant to the families of the suspects who are in different administrative regions, or in a city/district or province that is different from the place of the suspects were arrested and/or detained , therefore needed interpretation can be applied generally to accommodate the differences that condition with still give priority to legal certainty. In this case, the time of the 7 (seven) day is the deadline should be to deliver a copy of the warrant of detention. Upon consideration of the above law then in accordance with the principle of legal certainty and propriety, the phrase "soon" in the formulation of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE States, "Effluent warrant referred to in subsection (1) must be given to his family shortly after the arrests were made." must be declared contrary to the Constitution all meant not "immediately and not more than 7 (seven) days"; [3.16] considering that on the basis of the whole of the above considerations, according to the Court, the applicant's plea concerning the test of the constitutionality of article 18 paragraph (3) of the CODE of CRIMINAL PROCEDURE grounded according to law for the most part; 4. CONCLUSION based on the above assessment of the facts and the law as outlined above, the Court concluded that: [4.1] the Court's jurisdiction to adjudicate a petition for quo; [2.6] the applicant has legal position (legal standing) to apply for a quo; [4.3] the Principal reasoned petition according to the law for most. Based on the Constitution of the Republic of Indonesia in 1945, Act No. 24 of 2003 on the Constitutional Court as amended last by law number 4 by 2014 about determination of Surrogate Government Regulations Act No. 1 34 2013 about the second amendment in the Law Number 24 year 2003 concerning the Constitutional Court into law (State Gazette of the Republic of Indonesia number 5, 2014 an additional Sheet of the Republic of Indonesia Number 5493) , and Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, declare: 1. Granting the applicant's application for most; 1.1. The phrase "soon" in article 18 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional State Gazette Number 3209) is contrary to the Constitution of the Republic of Indonesia in 1945 all meant "not immediately and not more than 7 (seven) days"; 1.2. The phrase "soon" in article 18 paragraph (3) of law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional State Gazette Number 3209) do not have the force of law binds all meant "not immediately and not more than 7 (seven) days"; 2. Rejects the application of the applicant for the addition and the rest; 3. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be. The case was decided in the meeting of the Consultative Constitutional Judge by nine Judges namely m. N Deputy Mochtar, speaker and interim Member, Achmad Sodiki, Ahmad Fadlil, Maria Farida Indrati Sumadi, Harjono, Hamdan Zoelva, Arief Hidayat, Muhammad Alim, and Usman Anwar, each as a member, on Monday, the twenty-seven, the month of may, year two thousand thirteen, and is spoken in the plenary session of the Constitutional Court is open to the public on Thursdays , date of thirty, the month of January, year two thousand fourteen, finished at 4.05 pm, spoken by 35 eight Judges of the Constitution, namely, Hamdan Zoelva, as the Chair of the sitting member, Arief Hidayat, Ahmad Fadlil, Maria Farida Indrati Sumadi, Harjono, Muhammad Alim, Usman Anwar, and Patrialis Akbar, each as members, with the Knights of Ery accompanied by Pamungkas as Clerk of the surrogate, as well as attended by Government or representing and Representatives or representing the , without being attended by Pemoho or its power. Chairman, ttd. Hamdan Zoelva members, ttd. Arief Hidayat ttd. Ahmad Fadlil Sumadi ttd. Maria Farida Indrati ttd. Harjono ttd. Muhammad Alim ttd. Usman Anwar ttd. REPLACEMENT CLERK patrialis Akbar, ttd. Ery Ultimate Knights