Test The Material Constitutional Court Number 27 In 2007

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 27 Tahun 2007

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Read the untranslated law here: http://peraturan.go.id/inc/view/11e44c50376975c09349313232363533.html

The VERDICT RULING Number 27/PUU-V/2007 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and severing the constitutional matters at the level of the first and last, has dropped the verdict in the case of application for Testing Act No. 3 of 2005 about National Keolahragaan System against the Constitution of the Republic of Indonesia in 1945, proposed by: [1.2] Saleh Ismail Mukadar, SH. place/date of birth, Maluku Tengah, 25 December 1963, citizenship, Muslim Indonesia, the post of Chairman of KONI Surabaya city, resides in Pogot Street Gang 8 number 15, number HP. 08111304999, Fax. (031) 5039754, based on the Special power of attorney dated 3 November 2007 authorizes Muhammad Saalih, sh., and Moh. Zakaria 925silverbali, sh., advocates of the Anti-discrimination Advocacy Team stationed on the road Number 2b Surabaya Muhammadiyah Tile. Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-Appellant; [1.3] have read the petition of the applicant; Have heard the description of the applicant; Have heard and read the affidavits of the Government; Have heard and read the affidavits of the House of representatives; Have heard the description of the witnesses and the experts of the applicant and the Government; Have heard the description of the Related National Sports Committee; Have reviewed the evidence; Have read the written conclusions of the applicant and the Government;

2. SIT the MATTER [2.1] considering that the applicant had filed a petition with their petition letter dated 5 November 2007 received and registered with the Registrar of the Constitutional Court of the Republic of Indonesia (hereinafter referred to as the clerk of the Court) on Tuesday, November 13, 2007, with registration of case Number 27/PUU-V/2007, which has been fixed and accepted at the Registrar of the Court on Friday, December 7, 2007, suggested the following things : A. The AUTHORITY of the CONSTITUTIONAL COURT 1. That on the basis of the provisions of article 24C paragraph (1) of the third change of the Constitution 1945 (hereinafter the Constitution) juncto article 10 Act No. 24 of 2003 on the Constitutional Court (hereinafter referred to as the ACT of the COURT), it is stated that the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution, severing of disputes the State agencies the Authority those powers given by the Constitution , Disconnect the dissolution of political parties and break the disputes about Election Results; B. the POSITION of the LAW (LEGAL STANDING) the APPLICANT 1. That Article 51 paragraph (1) of the ACT, the COURT declared 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 entity, or; d. State institutions. Explanation of article 51 paragraph (1) of the ACT the COURT stated that the definition of "constitutional rights" are the rights regulated in the Constitution of 1945; 2. That the applicant is a citizen of Indonesia who was Chairman of the Public 2 KONI Surabaya since September 29, 2006. In addition to being Chairman of KONI Surabaya Applicant also served as Chairman of the Commission which has the East Java REGIONAL E interests associated with the application for testing the legislation a quo and very interested parties against the post of caretaker KONI Surabaya to be functionally, proportionately and professionally perform tasks as Chairman of KONI Surabaya without no doubt violated the law. 3. That the applicant holds with the provision of article 40 number 03 in 2005 about National Keolahragaan System (law SKN) associated with the current state of keolahragaan which takes the role of the applicant as set forth above, it is obviously not possible for the applicant to continue serving as Chairman of KONI Surabaya continuously because it is prohibited by article 40 of ACT number 03 in 2005. Therefore the claimant strongly felt konstitusionalnya rights violated and harmed is potentially as guaranteed by the Constitution particularly Article 28C paragraph (2), section 28D subsection (1), and article 28I paragraph (2). Thus, the applicant's opinion then the applicant has met the qualifications referred to in the provisions of article 51 paragraph (1) letter a LAW COURT. 4. That next in the Constitutional Court Verdict Number 006/PUU-III/2005 and decision Number 010/PUU-III/2005 has determined 5 (five) of the constitutional terms of loss as stipulated in article 51 paragraph (1) of the ACT the COURT, as follows: a. the existence of rights and/or constitutional authority granted by the Constitution; b.b. Rights and/or constitutional authority is considered to have been harmed by the enactment of legislation which petitioned testing; c. Loss of rights and/or constitutional authority is 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 loss of rights and/or constitutional authority with legislation that petitioned testing; e. of the possibility that by dikabulkannya the petition then 3 losses of rights and/or constitutional authority that is no longer the case postulated; 5. That on the basis of these criteria the applicant is the party that has a causal relationship (causal verband) between a constitutional disadvantage with the enactment of laws that petitioned to be tested because article 40 of ACT number 03 in 2005 obviously contrary to Article 28C paragraph (2), section 28D subsection (1) and Article 28I paragraph (2) of the CONSTITUTION of 1945; The existence of article 40 of the ACT number 03 in 2005 is very discriminatory and impressed far-fetched. 6. That such article has been memasung the public official (s) who want to contribute their energy and mind for the progress of world sport. Thus, the applicant argues that the applicant has the legal position (legal standing) as a party to the application for testing legislation against the Constitution. 7. That Article 40 of Act No. 3 of 2005 that prohibited public officials participate actively in advancing world of sports because it feared that the misuse of Office, unfounded. The question is, does indeed as long as this at a time when public officials active in the KONI thus misappropriated his power? There is no evidence that any State that when public officials akitif in their abusing position KONI attached to it. During this time the officials of the relevant criminal offence of corruption does not exist with regard to the world of sports. It means that the ban on public officials menjani sysop KONI really doesn't make sense. 8. That, the prohibition of public officials so that the administrators KONI is not only provided for in Article 40 of Act No. 3 of 2005 but also Government Regulation number 16 in 2007 about the conduct of the sports Article 56 stated; • Paragraph (1) "National Sport Committee Executive Board, Committee on sports, the Sports Committee of the kabupaten/kota are independent and not tied to the activities of the Office of structural and public office". • Paragraph (2) "in the exercise of its duties, obligations and Trustees referred to in subsection (1) must be free from the influence of 4 intervention from any party to maintain neutrality and guarantee keprofesionalan management keolahragaan". • Paragraph (3) "the Executive Board referred to in subsection (1) are prohibited from holding an Office which indicates the duties, responsibilities, authority, and rights as a civil servant and military in order to lead an organization of State or Government, among others, the Office of Echelon in a Department or a non government institutions Department". • Paragraph (4) "Superintendent referred to in subsection (1) are prohibited from holding a public office that is obtained through a process of direct election by the people or through the election of representatives in Indonesia, among others, President/Vice President and members of the Cabinet, the Governor/Deputy Governor, Regent/Vice Regent, the Mayor/Deputy Mayor, Member of PARLIAMENT, members of PARLIAMENT, judges, members of the judicial Commission, kaporli and Commander of the INDONESIAN ARMED FORCES". 9. That Article 56, Paragraph (4) PP number 16 in 2007 as the elaboration of Article 40 of Act No. 3 of 2005 clearly violates the constitutional rights of the applicant as Chairman of KONI Surabaya. Article 123 Para (6) Government Regulation number 16 of 2007 stated, "in the event of a breach of article 56 (Government Regulation number 16 in 2007 about the Organization of sports), the Minister may facilitate the election of a new Executive Board are invited, to compliance with the conditions of the sports organization and legislation". Paragraph (7), "in terms of the election of the Executive Board as referred to in this paragraph are not held, the Minister may recommend to the parties to postpone the funding related to the channelling of funds to the National Sports Committee, the Committee on sports, the Sports Committee of the district/city". 10. That a duplicate post of prohibition, by article 40 of Act No. 3 of 2005 is not explained seraca specific, so that an applicant be wondering what is behind it? Because the applicant became Chairman of KONI Surabaya, never interfere with the performance of the applicant as Chair 5


Commission E DPRD Jawa Timur. Thus can support each other, as the Commission E: the sports issue in the provincial Government of East Java. 11. That Article 40 of Act No. 3 of 2005 and government regulation of 16th in 2007 greatly Number disrkiminatif. Why? because of its Trustees sports cabor (sports) are not prohibited from replacing by public officials. For example TAUFIK EFENDY (Minister of empowerment of State apparatus) became Caretaker Centre PERPANI (Indonesian Archery Union), Pencak Silat Throughout Indonesia (IPSI) East Java ruled by SOEKARWO (since November 2, 2006) that nota bene Secretary of East Java. Majority of its administrator football Cabor replacing public officials, for example, replacing PERSEBAYA Surabaya Surabaya Deputy Mayor ARIF AFANDI since November 19, 2004, DELTRAS Sidoarjo Sidoarjo Regent Representative replacing SAIFULILLAH, PERSIK Kediri etc. What's the difference with soccer Cabor KONI, toh cabor is part of KONI. This shows how Article 40 of Act No. 3 of 2005 made without regard to the basic philosophy of making the legislation should reflect the aspirations of the community. 12. Discrimination in a large dictionary of language Indonesia Ministry of education publications and Kebdayaan Balai Pustaka second edition 1995 defines discrimination is a distinction between the treatment of our fellow citizens. Whereas according to article 1 paragraph (3) of Act No. 39 of 1999 on human rights, discrimination is; any limitation, exclusion, abuse, or which is directly or indirectly based on the distinction of human beings on the basis of religion, tribe, ethnic flavors,, group, class, social status, economic status, sex, language, political beliefs, resulting the reduction, diversion 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 areas of political, economic, socio-cultural and legal aspects of the lives of others. 13. If the watch carefully the meaning of the above obvious discrimination, what is contained in the charges article 40 Act No. 3 of 2005 is a form of discriminatory policies. For obstructing the applicant 6 as citizens who happen to be as public officials (social status) hindered to be active as a sysop KONI Surabaya, not based upon the terms of legal procedures, for example education, knowledge, experience in the field of sport and others. 14. Article 28J Constitution 1945 stated; In the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public keteritiban in a democratic society. 15. That the applicant is not included into what is meant by 28J Constitution 1945. For if examined more deeply is the restriction in article 28J Constitution 1945 solely consider the moral aspect, religious values, security and public order. Whereas restrictions (Prohibition) public officials became the caretaker of the KONI as referred to Article 40 of Act No. 3 of 2005 did not explain aspects of moral, religious, and others. Thus the applicant's constitutional rights do not include the intended by article 28J UUD 1945. 16. That every citizen has equal rights and the same obligations before the law and the Government as guaranteed in the Constitution of 1945. That the existence of the restriction and distinction between sysops KONI and the sports, of course, shaper of the Act has done for real negligence, have reduced the blocking, reduce the applicant's constitutional rights, because the framework between the administrators and the KONI sport is almost the same, let alone sports is part of KONI, resulting in discrimination and harm the applicant's constitutional rights. 17. That Article 40 of Act No. 3 of 2005 if it is associated with human rights thus contrary to Article 3 of Act No. 39 of 1999 on human rights which States: 7 • Verse 1, "every person is born free with dignity and human dignity, and equal and endowed with reason and conscience to live community, nation and State in the spirit of why". • Paragraph 2, "everyone is entitled to recognition, guarantees, protection and fair legal treatment as well as legal certainty and equal treatment before the law". • Paragraph 3, "everyone is entitled to the protection of human rights and fundamental human freedoms, without any discrimination". 18. That the Applicant, as the Chairman of KONI Surabaya which also served as a public official (Chairman of Commission E DPRD Jatim) felt the constitutional authority of the applicant were violated by article 40 of Act No. 3 of 2005. The ban on public officials became caretaker KONI shows if the lawmakers of the national Keolahragaan System does not pay attention to Article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution. 19. That Article 40 of Act No. 3 of 2005 proof kekuaaan intervention in the question of world sport. The world of sports who should have received the full support of all elements of society is no exception. By the existence of Article 40 of Act No. 3 of 2005 have closed spaces of the applicant as a public official to participate actively in advancing the world of sports through the Office of the applicant as Chairman of KONI Surabaya. 20. even in Semarang a public officials resigned from caretaker KONI fearing considered article 40 Act No. 3 of 2005. 21. That the applicant concerned if Article 40 of Act No. 3 of 2005 is not cancelled by the Constitutional Court, Minister of youth and sports can recommend so that relevant parties are delaying funding KONI Surabaya as referred to in article 123 Para (7) the Government Regulation number 16 in 2007, so be very fatal, traffic-jammed sports coaching. It means that the applicant's constitutional rights 8 guaranteed the 1945 Constitution are factual and potentially harmed by the existence of Article 40 of Act No. 3 of 2005. THE SUBJECT MATTER OF THE PETITION; 1. That Article 40 of Act No. 3 of 2005 about National Keolahragaan System contrary to the applicant's constitutional rights that are guaranteed by the Constitution particularly Article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2); • As for the sound of Article 40 of Act No. 3 of 2005 are:-article 40 stated: "the Executive Board of the National Sports Committee, Sports Committee, Sports Committee of kabupaten/kota are independent and not tied to the activities of the Office of structural and public office". • The next Constitution reads:-article 28C paragraph (2) which States, "everyone has the right to promote himself in the fight for the right collectively to build community, nation, and the country". -Article 28D paragraph (1): 0 "everyone is entitled to recognition, guarantees, protection and legal certainty are fair, as well as equal treatment before the law." -Article 28I paragraph (2): "everyone has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment." 2. Article 28C paragraph (2) of the 1945 Constitution states, "everyone has the right to promote himself in the fight for the right collectively to build community, nation, and the country". That the applicant's active as Chairman of KONI Surabaya can be equated as the applicant's efforts in advancing, building community. Because, KONI Surabaya is an organization that sporting wing, and had an important role in the construction of sport in East Java in particular city 9


Surabaya. That the progress of the nation and the State of progress of the world of sports. For it is clear if Article 40 of Act No. 3 of 2005 contrary to Article 28C paragraph (2) of the Constitution. 3. That having examined carefully, article 40 of Act No. 3 of 2005, the applicant argues, that the article has removed the meaning of equal treatment for all citizens before the law, as mandated by article 28D paragraph (1) of the Constitution. 4. That Article 28I paragraph (2) of the Constitution reads as follows "everyone has the right to be free from discrimination on the basis of any kind and is entitled to protection against discriminatory treatment." That elucidation, Article 28I paragraph (2) has been outlined and elaborated in Act No. 39 of 1999 on human rights. That after reading the provisions of article 40 of Act No. 3 of 2005, which contains substantially "the limitation or prohibition to public officials to sit became the caretaker of the KONI very discriminatory and contrary to Article 28I paragraph (2) of the CONSTITUTION of 1945; 5. That Article 40 of Act No. 3 of 2005 the impressive presence of arrogance and misunderstanding of lawmakers who seem in public officials being sysop KONI is definitely abusing those powers. really something contrived. 6. That Article 28D paragraph (1) of the Constitution gives a chance to everyone to get recognition, guarantees, protection and legal certainty of fair and equal treatment before the law; 7. That the enactment of article 40, Act No. 3 of 2005 Applicants who happens to make public officials concerned is accused of breaking the law. 8. That based on the descriptions above, then obviously the existence of Article 40 of Act No. 3 of 2005 about National Keolaragaan System is contrary to the Constitution of article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2); And thus the provisions of article article 40 Act No. 3 of 2005 about National Keolaragaan System should be stated "do not have binding legal force". 10 PETITUM Upon everything outlined above, the applicant requested the Constitutional Court gave a verdict that is amarnya as follows: 1. Granting the applicant's pleas in their entirety; 2. States: "article 40 of Act No. 03 in 2005 about National Keolahragaan System contrary to Article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution"; 3. States: "article 40 of Act No. 03 tTahun 2005 about National Keolahragaan System does not have binding legal force; 4. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be; Or, if the Constitutional Court holds other, please seadil-fair Award (ex aequo et bono). [2.1.2] considering that the propositions to strengthen their petition, the petitioner has submitted written evidence which has been endorsed by the Court, labelled P-1 to P-13, as follows: P-1 Proof: Photocopying of the Constitution of the Republic of Indonesia in 1945; Proof of P-2: photocopies of Act No. 24 of 2003 on the Constitutional Court; Evidence of the P-3: photocopy of Act No. 3 of 2005 about National Keolahragaan System; Proof of P-4: Photocopying the decision letter of the Chairman of the KONI East Java Number 821.2/SK 40/309/I/2006 Inaugural Executive Board about KONI Surabaya; Proof of P-5: photocopy of Letter Decision of representatives of East Java Region number 16 of 2004 concerning the determination of the President and members of Provincial commissions East Java term 2004-2009; 11 evidence of the P-6: Photocopying News Event of LEGISLATIVE Members Pledge Oaths Pronunciation of East Java; Proof of P-7: Photocopying newspaper clippings "Jawa Pos" Sunday, April 2, 2006; Evidence of the P-8: Photocopying newspaper clippings "Birawa" Tuesday, April 18, 2006; Proof: P-9 Photocopying Government Regulation number 16 in 2007 about the conduct of the Keolahragaan; Proof of P-10: photocopy of decision letter of the National Sports Committee of Indonesia Number 38 in 2007 about the Personnel arrangement of the consummation of the inaugural Patron, Honorary Council, Penyantun Council, the Financial Supervisory Agency, and national sports Committee of Indonesia Sysop South Sumatra Province Service 2007-2011; Proof of P-11: Photocopying the decision letter of the National Sports Committee of Indonesia Number 115 of 2007 about the endorsement of the turn Between the time an Honorary Council Personnel, Advisory Board, supervisory board and Executive Board the Great Unity of badminton Throughout Indonesia (PB. BPS) Service 2004-2008; Proof of P-12: Photocopying the decision letter Number Skep/224/PBVSI-JT/XII/2007, Superintendent of East Java Union Volleyball Throughout Indonesia (PBVSI East Java), about Perfecting the provincial Caretaker Stewardship PBVSI East Java Service 2004-2008; Proof of P-1: Decree Football Association of Surabaya, Indonesia (PERsebaya) number 019/Kep/PSBY/VIII/2007, about the restructuring of the Executive Board of the Club Persebaya period 2006-2009; [2.1.3] considering that in addition to written evidence, the applicant has also filed for witnesses and expert witnesses, named Herman Rifai, Denny Tristiannto, and Ismail (the witnesses), as well as the expert named Dr. John Pieris, sh.., p., Prof. Dr. Satya Arinanto, S.H., M.H., and Hesti Armiwulan, S.H., m. Hum., who has heard his statement under oath, which is substantially as follows: Herman Witnesses Rifa'i • that due to the position of witnesses as members of the DPRD Surabaya, witnesses in 2000 was appointed Chairman of the Executive Board Branch (Pengcab) 12 City Surabaya IPSI, with 36 members of the College. The beginning of the first witness Pengcab IPSI Chairman city of Surabaya have no equipment at all. By friends of pencak silat is regarded as public witnesses a figure as public officials, then they hope that witnesses can have the equipment, so at that time it was decided to buy 2 mattress protectors, codes, scales, buying padding pad, buy sansak, which cost time of year 2000 nearly about 60 million, by asking you please to some entrepreneurs to help procure such equipment; • that the position of the two witnesses as Vice Chairman and Chairman of the DPRD Surabaya Pengcab Surabaya IPSI, in essence the witnesses have to divide time between the interests of the people of Surabaya with the interests of the witness organization hold; A description of the applicant's Witnesses Denny Trisyannto • That witness dabbling in the sport of archery began in 1980, and along the way a witness, there have been many achievements including the 1991 Manila Sea Games national team grabbed a public champion, then in 2001 in Malaysia also public champion. • That the desire of the athletes is one commitment in sports is to hoist the red and white in another country, and it was already done. In achieving that commitment, witnesses assisted by KONI Surabaya and East Java KONI. Therefore, it is the existence of synergies expected from the Central Government and the regions, namely the existence of a command line where as Chairman of KONI there Governor, Mayor, and Minister of youth and sports is the length of the hand of the Government. A description of the applicant's Witness Ismail • that when witnesses as government officials, namely as head of the Sub-Division of the Repertory (Echelon IV Officials) who have a duty to menverifikasi disbursement budget of all assets that are in Surabaya City Government including budget KONI; • that budget KONI listed in the budgeting system that Supercede-kan, then technically a follow-up to operations issued a letter Decision the Mayor to periodic quarterly disbursements 1 13 up to 4. During the validity period of such rules, the executor witness dilutes the whole assistance for KONI appropriate rules, and never getting one relationship or a relationship in which KONI requested that facilitated; • that while witnesses have retired in 2007 and menjelangnya, the witness served as Treasurer of KONI. Early witnesses sit in the KONI, KONI Chairman Surabaya published the rules about how to use and empowers the budget, i.e. 75% KONI delivered for the benefit of sport, 25% for the operational interests of the KONI, support the activities that are not tercover in the sport, and last operational costs. • that the entire apparatus of the clerk at the KONI get reward money or task, but the Chairman didn't want to accept, that the Chairman does not want to receive the money gained as a facility at KONI. A description of the applicant's Expert Dr. John Pieris, sh.., p. 1. After examined thoroughly and in depth, can dihami, that article 40 of the ACT which reads: SKN Caretaker National Sports Committee, the Committee on the exercise of the province, kabupaten/kota Sports Committee are independent and not tied to the structural position and activity of public office. Article 40 is deliberately formulated as such in order for the Executive Board of the National Sports Committee was not affected and terintervensi any party, as well as to maintain neutrality and professionalism of the management keolahragaan. For a full explanation on article 40, explained: what is meant by the phrase independently in this provision is free of any party influence and intervention to maintain neutrality and guarantee keprofesionalan management keolahragaan. What is meant by structural position in these terms is a term which indicates the duties, responsibilities, authority, and rights of a military and civil servants in order to lead a unit of organization of State or Government, among others, the Office of Echelon in a Department or a non government institutions Department. The definition of these terms in public office is an Office that is obtained through a process of direct election by 14


the people or through the election of representatives of the Republic of Indonesia, among others, President/Vice President and members of the Cabinet, the Governor/Deputy Governor, Regent/Vice Regent, the Mayor/Deputy Mayor, members of the DPR-RI, DPD-RI, a member of PARLIAMENT, Chief Justice, members of the Judicial Commission, Assistant, and Commander of the TNI. From the formulation of article 40 and an explanation of the reason, it can be explained here, that the phrase (words) are independent it only applies to the National Sports Committee of the Executive Board. Thus, it can be concluded, that the caretaker of the National Sports Committee are independent. Article 40 and its explanation does not formulate national sport Committee of the organizations are independent in the context of the free from the influence and intervention of any party (vide explanation of article 40). Associated with it, in Article 36 paragraph (1) be formulated: (1) the parent organization of the sport as stipulated in article 35 forms a national sports Committee. In the description of this article, no explanation of the formula phrase self-reliance. In Article 36 paragraph (3) be formulated: (3) the parent organization of sports and national sports Committee as referred to in paragraph (1) are independent. In the explanation there is no formula of words about the parent organization and independence of the National Sports Committee. That is, the constituent Act (HOUSE of REPRESENTATIVES and President) understood, that the parent organization and national sports Committee as an organization are independent. 2. from the formulation of article 40 and its explanation, and the formulation of article 36 and its explanation, it can be concluded, that, both the parent organization of the sport as well as the National Sports Committee, both of which are independent. But, in contrast to article 40, together with the explanation that confirms, that the National Sports Committee of the Executive Board are independent. Article 36 and its explanation does not explain, that the parent organization of sports administrators are independent. There is no denying, by presenting the provisions of article 40, then the haze had occurred in interpret and understand the legal norms that are interlinked, even though it contains the content (substance) of the soul and the material of the same charge. 15 3. Supposedly, in making a law (law SKN), wherever possible, the constituent could coordinate values or norms of the law of the same substance, in order not to contradict one another. Therefore, the teoritik Foundation and the principles or principles is important in making the Act should not be ignored. From this description, it can be concluded, that the ACT of forming SKN do not comply with principles (not abiding principle of) formation of laws-invitations and principles about material laws-charge invitation, thus rendering article 40 accompanied the explanation cannot be accounted for from the aspect of the theory of legislation, and can not be justified legally. Thus, it must be annulled by law, also for the sake of Justice. Here lies the confusion and inconsistency in the laws that formed the consolidated chapters which are related to one another. No integration or linkages clauses have a soul and matter the same charge (related to one another). 4. Should Article 36 paragraph (3) are described explicitly as well regarding independence stem sports organization, as described in the explanation of article 40. This means that, if Article 36 paragraph (3) to formulate rules or affirm independence from the parent organization of the sport, should an explanation because the more elaborate or explain more clearly the independence rules. Is very wrong, if Article 36 paragraph (3) which confirms the independence of sports organisations and the carrier independence National Sports Committee in the same paragraph and article, as well as the soul and in the same breath, or norms (rules) are the same, as well as the material of the same charge, but in the description of article 36 paragraph (3), especially regarding the independence of the rule's parent organization of sport, not found a formula of explanation. 5. In this regard, it can be said here that the framer of laws does not use the precautionary principle in understanding and applying the principles of the formation of legislation and principles of material charge legislation as defined in 16 in article 5 and article 6 of Act No. 10 of 2004 concerning the formation of the laws and regulations in Indonesia. Associated with it, can be explained here, that the provisions of article 40 and its explanation does not fit, even contrary to the principles of the formation of the material principles and legislation as fundamental norms in the context of both the State of law perspective. Article 40 and its explanation is also very contrary to basic human rights as regulated in Article 28C paragraph (2), section 28D subsection (1), article 28I paragraph (2), article 28I paragraph (5) and 28J subsection (1) and paragraph (2). Logically, it would be more appropriate, or seen from the logic of the law is also contrary to the Constitution [Vide article 1 paragraph (3)]. In other words, article 40 with the explanation is contrary to the principle of State of law and constitutionalism pragmatism. 6. Through this opportunity, before the Chairman and Tribunal Judges MK Majesty, allow me to quote and explain some important basic principles of community formation and principles of material charge-laws applicable invitation under article 5 and article 6 of Act No. 10 of 2004 as follows: in our opinion, a founding ACT of SKN carefully does not understand the principles of the formation of legislation under section 5 of the Act No. 10 of 2004 concerning the formation of good Legislation. Article 5 of ACT No. 10 of 2004 confirmed: in the form of legislation must be based on the principle of the formation of good Legislation which includes: a. the clarity of purpose; b. institutional or organ-forming the right; c. conformity between the type and material of the charge; d. can be implemented; e. the navigability and kehasilgunaan; f. clarity of formulation; and g. openness. 17 in our opinion, there are several critical notes that must be addressed in this case, that article 5 of the letters c, d, e and f related to article 40 of the ACT SKN: on the letter c. is the basis of the "alignment of the type and material of the charge" is that in the formation of legislation should really pay attention to the proper charge material with this type of legislation. In our study, it seems there is no alignment of the type of charge material and Article 36 paragraph (3) and of article 40. on the letter d, which is the basis of "enforceable" is that each establishment of laws-invitation should take into account the effectiveness of the legislation in the community; whether philosophical, juridical as well as sociological. After examined seem to be forming the ACT does not understand the true basis of SKN "workable". Therefore, article 40 the following explanation is difficult to be carried out, because there are no suitability value substantially (legal substance) with article 36. on the letter e, is the principle of "navigability and kehasilgunaan" is that any legislation is made because it is really necessary and useful in regulating the life of the society, nation and State. After scrutiny, it can be said, that article 40 is not useful or not optimally can be used to enhance the role of the National Sports Committee in the field of keolahragaan. on the letter f, is the basis of "clarity of formulation" is that any legislation must meet the technical requirements of drafting legislation, systematics and the choice of words or terminology, as well as the language of the law is clear and easy to understand, so as not to give rise to a variety of interpretations in corporate governance. 18 in our study, it seems between Article 36 and article 40, there is no principle of "clarity formula" and the language of the law is vague and hard to understand, giving rise to a variety of interpretations. In short, the shaper ACT SKN less understand correctly formation principles and regulations. Besides forming the ACT of SKN are also less understand principles about the material charge legislation. Article 6 of Act No. 10 of 2004, asserted: (1) the charge Material contains basic Regulations: a. auspices; b. humanitarian; c. nationality; d. family; e. kenusantaraan; bhineka tunggal ika f.; g. Justice; h. in common position in law and Government; i. order and legal certainty; and or j. harmony, balance, and harmony. We are of the opinion, that there are some indications about disobedience Shaper ACT SKN against principles of material charge legislation. For clarity, we describe as follows: • the definition of "basic humanity" is that any material charges and regulations should reflect the protection and respect of human rights and the dignity and the dignity of every citizen and resident of Indonesia proportionately. Once analyzed, the material charge (conditions) of article 40 and the explanation apparently did not contain the "basic humanity". Because it does not reflect respect for and protection of HUMAN RIGHTS and the dignity and the dignity of each citizen to engage in activities and sports management. • The definition of "fundamental justice" is that any material charges and regulations should reflect 19


Justice proportionately for every citizen without exception. After reviewed the material turned out to be the charge of article 40 and its explanation does not reflect proportionately justice for every citizen without exception [vide article 27 paragraph (1) of the Constitution]. In fact, public officials could have served as Trustees of the parent branch of the Organization, but against the National Sports Committee of the Executive Board is not allowed. The formulation of this article real-real breaking the principle of Justice. • What is meant by "the principle of equality in the law and the Government's position is that the material charge legislation should not contain things which are distinguished based on the background, among others, religion, tribe, race, class, gender, or social status. Once in dalami, apparently the material charge (conditions) Article 36 does not differentiate the parent branch Superintendent independence rules of the Organization, but the explanation and article 40 independence rules distinguishing the National Sports Committee of the Executive Board. Can be explained here, that article 40 in diametral contrary to Article 36. It can be asserted, too, that the provisions of article 40 and its pejelasannya is a provision that is contrary to the basic principle of equality, isonomia or befote the law. • The definition of "public order and the principle of legal certainty" is that any material charge legislation should be able to give rise to public order in society through a guarantee of legal certainty. If understood, appears to be material charge (conditions) of article 40 and its explanation does not create order and the principle of legal certainty, because in addition to conflict with article 1 paragraph (3), article 27 paragraph (1) and section 28 of the CONSTITUTION of 1945, is also contrary to Article 36 of the ACT so that potentially raises uncertainty SKN law and ketidaktertiban in society, especially in the conduct of the management of the sport. For example, a Governor, Governor or Mayor who was not selected to fill public office, surely he could become Chairman of the Committee of 20 sports area (a lot of Governors, Regents and Mayors as head of a caretaker Government Region). • What is meant by "the principle of balance, harmony, and harmony" is that material charge any legislation must reflect balance, harmony, and the harmony between individual and community interests with the interests of the nation and the State. If understood critically and carefully, it can be said, that the matter of charges article 40 and its explanation does not reflect the principle of balance, harmony and alignment, for the benefit of the individual public officials to advance the sport of terganjal because that should not be a caretaker National Sports Committee, provincial, kabupaten/kota. This principle is clearly has been violated by forming the ACT of SKN. 7. Related to chapter III section 5 of the ACT governing the principle of SKN Organizing Keolahragaan diselenggrakan with keolahragaan, affirmed principles: a. democratic, is not discriminatory and uphold religious values, cultural values, and kemajemukan peoples; b. social justice and the value of the civilized humanity; c. sportive and uphold the values of ethics and aesthetics; d. pembudayaan and openness; e. the development of healthy living habits and active for the community; f. the role of empowerment and community; g. safety and security; and h. physical and spiritual wholeness. After the note, it turns out that article 5 of the ACT does not regulate the principle of independence of SKN in sports. If in Article 36 and article 40 independence rule appears, but the rule should not be mengungkungi or menaifikan the rights of nationalities (public officials and officials of the struktrual) to play a role in managing or coordinating parent sports through national sports Committee, both at the central level, as well as regional (provincial, Kabupaten/Kota). 21 8. Another thing that can be addressed here is the synchronization of legislation regarding equal, i.e. synchronize ACT SKN. Act No. 32 of 2005 about local governance (PD ACT) and Act No. 23 of 2003 about the arrangement and position of the MPR, DPR and DPRD DPD, (Act Susduk), especially regarding the method of synchronization-method law (substance) of the same at least regulating the prohibition of duplicate position. In our study, a duplicate post of prohibition setting on the National Sports Committee and regional structural and officials by public officials in the ACT are not in SKN ACT PD and ACT Susduk. Supposedly, concerning the functions, roles, rights and obligations of officials of structural and public officials in the ACT of SKN (vide Article 36 and article 40 and its explanation) should be adjusted or must comply with the rule of law (the substance) of the same ban on arranging a duplicate position. Understandably, that concerns the legal provisions governing the functions, roles, rights and obligations of officials of structural and public officials as it is regulated in the ACT on PD and Susduk ACT is the primary rules (principal). In the theory of legislation, the rules of the main (principal) that is the source or reference is important for parallel legislation (e.g. LAW SKN), especially those that regulate the legal norms (the substance). That is, the reduction should not rule SKN laws governing the roles, functions, rights and obligations of officials of structural and public officials in connection with the birth of a rule that prohibits the Governor, Deputy Governor, the Chairman and members of the HOUSE of REPRESENTATIVES, DPD and DPRD to be caretaker of the National Sports Committee, provinces and kabupaten/kota in article 40 of the ACT, the rules of the SKN may cause legal controversy is confusing the public. It should be understood, that Article 28 of the ACT stating the PD, the head of the region and Deputy Head of the area are prohibited: a. make a decision that specifically provide advantages for themselves, a family member, a crony, the particular, or political groups that are opposed to the legislation, is detrimental to the public interest, 22 and unsettling bunch of people, or discriminate citizens and/or the community; b. participate in a company, whether private or State/County or in any field of Foundation; c. perform another job that provides benefits for themselves, either directly or indirectly, related to the area in question; d. corruption, collusion, nepotism, and accepting money, goods and/or services from others which affect the decision or action was going to do; e. be advocates or attorneys in a lawsuit in court other than those referred to in article 25 letter f; f. misappropriated authority and violate the oath/promise of his Office; g. and interim positions as officials of other countries, as a member of PARLIAMENT as set out in the legislation. In this chapter, there is no explicit prohibition and clear to the head region and Deputy Head of the region served as caretaker in sports organizations, both regional sports Committee, as well as the parent organization of sports. In Article 104 Para (1) of the ACT Susduk stated: (1) members of the HOUSE of REPRESENTATIVES, DPD, Provincial, and SUB-PROVINCIAL PARLIAMENTS Kabupaten/Kota must not be concurrently: a. position as officials of other countries; b. judges on judicial bodies; c. civil servants, members of the TNI/Polri, officials at the State-owned enterprises, regional and/or other agencies that the budget is sourced from STATE BUDGET/BUDGETS. If Section 104 subsection (1) Letter c is interpreted, then actual and supposed members of the House, DPD, dan DPRD may not concurrently with the Office of the National Sports Committee of the Executive Board and the Executive Board, as well as the parent sport, for the Budget Committee the national sports and regions, as well as the parent sport, sourced from the NATIONAL BUDGET and a GRANT. In addition to the synchronization does not occur against the related articles about the functions, roles, rights and obligations of officials and public officials of structural, or the Governor, Deputy Governor, the Chairman and members of the HOUSE of REPRESENTATIVES, also it didn't seem the existence of 23


consolidation among the related clauses in the ACT of SKN. For example, on considerations to weigh, as well as article 5 of the ACT does not regulate the principle of independence of the SKN sports, but it appears the article governing the independence of the Executive Board of the parent organization of sports and national sports Committee Executive Board independence, provinces and regions. Is not wrong, if the ACT forming SKN also actually have to comply with the principles named Algemene Beginselen Van Behoorlijk Bestuur (General Principles of Good Government = general principles of Good Governance) especially: 1. the principle of legal certainty (the principles of legal certainty); 2. the Basic Act scrupulous (principle of carefulness), which reminds the Government apparatus so that it always acted cautiously so as not to cause any harm to the residents of the community. For example if there is a section of the road that it was heavily damaged, the Government must give a sign not to arise a danger to road users; 3. the principle of the game is worth (principle of fairplay), namely the principle of willed that this agency or Government officials can give a chance to the existence of citizens for truth and justice; 4. principle of Justice or fairness (principle of reasonableness). Noteworthy, that the law does not only have a function regulatif, but also an educational function. Through the establishment of a democratic, national law and responsive, based on sociological and philosophical foundation is strong, then the law will have a belt and a strong-selling power. This is where the meaning of the function edukatifnya. The educational function of the Act must be viewed in the perspective of the pencerdasan peoples and the strengthening of the rule of law, not the supremacy of Parliament and the government. In the end let me reveal a postulate: a legal system could be damaged if there were procedural and substantial errors that stem the efforts of citizens to achieve justice morally. What is delivered by Donald Black; the law is not simply viewed in the perspective of rule and logic, but also in the perspective of the social structure and behaviour. 24 Fruit idea Black actually wanted to remind us not to swallow the membabibuta regime of legal positivism legisme embraced Thomas Hobbes, Hans Kelsen and John Austin, who in essence separating law from morality and sense of Justice. What is said is important to Black understood that sports sociology, social behavior and the structure of society Indonesia, mainly residing in the province, kabupaten/kota requires the intervention of the structural and officials of the public to engage actively (structural and functional) in building a national sport as a whole. That are not visible with the involvement of the Governor/Deputy Governor and a member of Parliament in the lead Sports Committee will do something harmful. Quite the contrary. Very neutral if the Governor/Deputy Governor and member of the HOUSE of REPRESENTATIVES as well as structural and other public officials leading the Sports Committee, so they can master all the overarching goals of the Organization branch of the sport. If structural and officials publicly can only lead the parent organization of the sport, then this policy is unjust and thus not neutral because they will only focus on the progress of one sport only. In realizing the rule of law, there could be another article 40 and its explanation should be revised to section a more just and democratic as well as beneficial to the development of the sport in the future. A Description Of The Applicant's Expert Prof. Dr. Satya Arinanto, S.H., M.H. A. Historical Perspective to the tidal Attraction between the State (State) and society (the Society) in the management of Sports related to the application of article 40 of the ACT test no. 3 of 2005 about National Keolahragaan System proposed by the applicant, first-tama I tell that based on material entitled "overview of the founding of the KONI" as attached, it appears that in the early days of its establishment, the agency that organizes the keolahragaan problems created by the Community (society) , i.e., by the leaders of the former sports Administrators YEA, son, contents, and so on. In a further development, especially when RI is preparing for the Asian Games IV in 1962 in Jakarta, the Government initiative to form the Board of the Asian Games Indonesia (DAGI) in 1959; 25, followed by the formation of the Sports Movement Command (KOGOR) in 1961; the establishment of the Ministry of sport (Depora) led by Minister Maladi in 1962; and also the establishment of the Republic of Indonesia Sport Council (DORI) in 1964. In the period 1959-1964 it can be said that the State (state) plays an active role in the Affairs of the keolahragaan. In 1965 the secretariat together with the parent-the parent organization of the Sports seeks to propose replacing the National Sports Committee becomes DORI Indonesia (KONI) are independent and free from political influence. It can be seen as an attempt to put the management of sports on society's position again. However, in 1966, President Sukarno thus published a Presidential Decree (Presidential Decree No.) number 143A and 156A in 1966 to establish the formation of KONI in lieu of DORI. The effort to pull back the management of the sport into the hands of the state is not successful because the parent is not endorsed by stem-organization of Sport with regard to political issues at the time. Nevertheless the mood is getting changed when Soeharto along his new Order rose to the pinnacle of power. At that time, keolahragaan stewardship are increasingly placed in the hands of the state. It can be seen from the stages of development of the KONI after 1966 as attached. Next we know that in the 1980s, Suharto also forms the State Ministry of youth and sports Affairs (Affairs) led by Dr. Abdul Gafur. At that time KONI appears more dominant than Affairs, as KONI still led by Sri Sultan Hamengkubuwono IX, who is also a former Vice President of RI. This resulted in the Affairs being looked "hesitate" and "helpless" face KONI. It is then attempted to be resolved by the President Suharto by calling Affairs and Chairman of KONI to the Palace. Accordingly, the meeting appeared a statement so that the existence of good coordination attempted in the management of the sport. B. the effect of the historical aspects of the political establishment of Law against LAW number 3 of 2005 about the system of national Keolahragaan the tidal attraction of the situation between state and society this is the most likely underlying the formulation of political law in the formation of ACT No. 3 of 2005 about National Keolahragaan System. In this ACT of state (which is represented by the Affairs) are positioned very strongly. This is for example the 26 looked in article 32 paragraph (1) which confirms that the management of the national keolahragaan system is the responsibility of the Minister. Further in paragraph (2) stated that his Government determines national policy, national keolahragaan standards, as well as coordination and surveillance against the management of the national keolahragaan. This was confirmed with the affirmation that Executive Board National Sports Committee, the Committee of sports and Sports Committee of the province, kabupaten/kota are independent and not tied to the activities of the Office of structural and public office as defined in article 40 and its explanation. But strangely enough it is not enforced same pratiknya in towards the parent organization of sports administrators as set forth in article 36. This seems of some structural officials and public officials who lead the parent-parent organisation of sport as set forth in the petition of the applicant and also revealed in the trial proceedings. This gives rise to inconsistencies. In such, arguing the Government and PARLIAMENT that became the caretaker of the KONI – good in the Centre as well as in the area – is more severe than being the parent organization of Sport Administrators is not appropriate, because if one becomes the parent organization of Sports Administrators at the central level, then the responsibilities thus will be much heavier than when you become a Sysop KONI on local level; because by becoming the parent organization of Sports Administrators at central level they should be held responsible for the progress of the sport all over Indonesia, while if being Sysop KONI on local level then the responsibility only covers the area in question. Thus, the prohibition for structural and officials public officials as stated in article 40 of the ACT were strongly inconsistent with the practice allowed them to become Caretaker Parent Organization of sports. But as explained by party REPRESENTATIVES through the former Chairman of the Working Committee (Panja) Prof. Dr. Anwar Arifin in proceedings in the COURT of RI on 31 January 2008, in the process of drafting the Bill that later became ACT No. 3 of 2005 is already emerging discourse so that structural officials and public officials are also prohibited to become Superintendent of the Organization keolahragaan; but somehow after the Act was passed which 27


banned is simply to be caretaker of the KONI. This inconsistency is expected to be terminated by MK RI as "the guardian of the constitution". C. the inconsistency with the Statutory Prohibition for structural as well as officials of the public officer to be the caretaker of the KONI as expressed in advance also were strongly inconsistent with the provisions that exist in a variety of other legislation. Most striking is that in terms of the ACT on political parties – either in Law Number 31 of 2002 and ACT No. 2 of 2008 – not found such a prohibition. The absence of restrictions caused many public officials like the Vice President and several Ministers at this time became the Leader of a political party. But by becoming a Leader of a political party, their concentration to execute his duties potentially for disturbed, and even more disturbed than if they simply become Sysop KONI. Thus in order to the development of national laws, it is expected that the CONSTITUTIONAL COURT of INDONESIA can play a role in doing the harmonization of legislation, especially in the form of the ACT which indeed became the authority the COURT. This is among other things can be done by canceling the enforceability of article 40 of ACT No. 3 of 2005, in order that such provision does not have the force of law that are binding. A description of the applicant's Expert Hesti Armiwulan, S.H., m. Hum 1. In the terminology of human rights there is a difference of emphasis that quite significantly between the rights that are categorized as civil and political rights with the rights that are categorized as economic, social and cultural. a.. In principle the civil and political rights was the right to be free from the interference of the State/Government. To ensure the recognition, protection and fulfilment of civil and political rights then the role of the State/Government should be minimized. Civil and political rights, the position of State/Government have obligations being passivity. Therefore the dikualifikasikan rights as civil and political rights are known as negative rights (negative rights), meaning that the dikualifikasikan rights as civil and political rights will be fulfilled when the State intervention/ruler of 28 very small (negative). In other words, in principle the civil and political rights are meant to reduce/limit the powers of the authorities/agencies. Based on the understanding to guarantee the protection and fulfilment of civil and political rights, very precise and absolute in nature in the legislation regarding regulated power restrictions/authority owned by the authorities including public officials as well as officials of the structural. This is intended to avoid arbitrariness/abuse of power (abuse a power). b. Whereas in the economic, social and cultural rights is in principle the rights be in dire need of participation or involvement of the most out of the country. Economic, social and cultural position of the country to be active. State/Government should clearly make programmes to guarantee the rights to satisfy economic, social and cultural rights fulfillment gradually so that the economic, social and culture increasingly good that finally can manifest prosperity for all the people. State/Government liable and responsible for the fulfillment of economic, social and cultural. Therefore the dikualifikasikan rights as rights to economic, social and cultural rights are known as positive (positive rights). That is, hk economic, social rights and culture will be fulfilled when the role/state intervention are quite dominant. In other words, the greater the greater State intervention also possible satisfy the rights of economic, social and cultural. Based on the understanding that in the context of economic, social and cultural, of the State/Government should do everything possible efforts through development programs either Center or region. Regarding the extent of the involvement of the State/Government to guarantee the economic, social rights be met and culture on the one hand and on the other to avoid conflict of interest (conflict of interest), then need to set restrictions in 29 consistently devoted to the entire apparatus including structural officials and public officials. 2. to understand the principles of human rights must be based on standards or norms of human rights universally recognised/international as set forth in the Universal Declaration Of Human Rights, The International Covenant on Civil and Political Rights and The International Covenant On Economic, Social and Cultural Rights. a. the principle of Anti-discrimination "Every one is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". (Everyone is entitled to all the rights and freedoms set forth in this declaration with no exceptions whatsoever, such as discrimination on race, colour, sex, language, religion, political or other views, national origin or citizenship, ownership, birth or other status/position) b. the notion of restrictions (limitation) "In the exercise of his rights and freedoms, everyone shall be subject only to such limitation the US are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society ". (In the exercise of his rights and freedoms freedom, everyone shall be subject only to such limitations as are determined by law/legislation whose purpose is solely to ensure proper recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society). Based on these things then when observing the provisions of article 40 of Act No. 3 of 2005 associated with the Constitution, there are a few things to get attention. 30 1. Regarding sports, none of the standard/norm of human rights explicitly mention a right relating to sports. But when sports meant as part of the right to health and the right to well-being, then standard/norm of human rights relevant to the sport is: "everyone is entitled to an adequate level of life to the health and well-being of himself and of his family including the right to food, clothing, housing and health care ..." It means things that are related to sports can be dikualifikasikan in the group rights of economic, social and cultural. With respect to it then in the terminology of human rights, the position of the State/Government must guarantee responsible/recognition and fulfillment of the rights related to sports. State/Government should actively make/take the role for the realization of those rights. (Positive Rights). Thus the development in the field of sport takes the role as well as a very large (dominance) of the State/Government therefore should get more attention and become a liability/responsibility of State/Government to its fulfillment. 2. With the assumption of positive rights based on the point that the greater State intervention/Government then the more likely satisfy the rights of ekosob. Structural or officials banned public officials being sysop means limiting KONI intevensi/the role of State/Government. This will may result in the development in the field of sport could not thrive if it turns out that public participation has not been fullest attention to coaching is willing to do voluntarily. As structural as well as officials of the public officials, they have a responsibility and obligation for the promotion, protection and fulfilment of human rights so as to ensure a correct fulfillment in the context of human rights in the terminology of human rights allowed the presence of restriction to the restrictions in question. However it is not true when the existence of these restrictions is precisely human rights guaranteed in the Constitution and in other laws and regulations cannot be met. If this occurs, it means the 31


State/Government issues have done deliberately (by Ommission). Based on the assumption that article 40 of ACT No. 3 of 2005 contrary to Article 28I paragraph (4) and paragraph (5) of the Constitution of the Republic of Indonesia in 1945. 3. rights to be free from discriminatory treatment is constitutional rights because these rights are guaranteed in the State Constitution of the Republic of Indonesia in 1945. On the one hand structural officials or public officials carry the responsibility and the obligation to ensure the promotion, protection and fulfilment of human rights. But on the other hand structural officials or public officials is a human being who has the right to develop his social life of men/the other Indonesia citizen. As an official concerned, by no means should lose his rights as a human being or as a member of society. Is not fitting for a reason so that the structural/functional officials were more focused on the job of principal on one side and the reason professionalism KONI on the other side is done by means of structural/public officials banned so that they lose their social rights as members of the public to build the community, the nation and the State. The independence and professionalism of benchmarks should be the authority on KONI. As an independent organization was supposed to KONI to determine benchmarks self-reliance, professionalism, measurable and transparent through the internal mechanism that was agreed upon, including to become sysop KONI. Thus needs to be regulated is indicato/terms of professionalism and sanctions for sysop KONI. Thus the structural/public officials prohibits became caretaker KONI is contrary to Article 28C and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945. [2.2] considering that the Government has given a written description that is read out at the trial on 8 January 2008, which outlines the following things: 32 i. General the Constitution of the Republic of Indonesia in 1945 confirms that Indonesia is a State of law. In line with these provisions, all aspects of life in the areas of community, national, and State of the Union including the Government must always based on the law. Sports are part of the process and the achievement of national development goals so that the presence and the role of sport in the life of society, nation, and State should be placed in a position which is clearly in the national legal system. For this field of keolahragaan is only governed by laws-an invitation under applicable laws, partial or not regulate all aspects of the national keolahragaan thoroughly, and not reflective of the orderly law order in the field of keolahragaan. National keolahragaan increasingly complex problems and deals with the dynamics of the social, economic, and cultural communities and the nation as well as the demands of global change so it's about time Indonesia has a law governing the keolahragaan thoroughly with attention to all aspects related to the development, adaptive sports and society, as well as a legal instrument capable of supporting the construction and development of national keolahragaan on the present and the future. On the basis of this is the need to established laws on the National Keolahragaan System as the Foundation for every juridical activities keolahragaan throughout the State Union of Republic of Indonesia. Things are set up in this regard for the legislation the principle of decentralization, autonomy, community participation, keprofesionalan, partnership, transparency, and accountability. System management, coaching, and development of national keolahragaan set with the spirit of the policy of the autonomous region in order to realize the ability of regions and communities that are able to independently develop the activities keolahragaan. Handling keolahragaan can no longer be addressed in sekadarnya but should be handled in a professional manner. Raising resources for the construction and development of national keolahragaan 33 is done through the formation and development of the working relationship of the parties associated harmoniously, open, reciprocal, mutually beneficial, and synergistic. The principle of transparency and accountability be directed to encourage the availability of information that is accessible so as to provide opportunities for all parties to participate in the activities of keolahragaan, enabling all parties to implement obligations optimally and certainty to obtain its rights, as well as allowing the passage of the control mechanisms to avoid deficiencies and irregularities so that keolahragaan national goals and objectives can be achieved. In this Act, the national keolahragaan system is the entire subsystem related keolahragaan programmatically, integrated, and sustainable to achieve the goal of national keolahragaan. Subsystem is meant, among other things, the perpetrators of sports, sports organizations, sport funding, infrastructure and means of sports, community participation, and supporting keolahragaan including science, technology, information, and sports industry. Interactions between sub system needs to be set in order to achieve the goals of national keolahragaan the benefits can be felt by all parties. An entire subsystems of the national keolahragaan organized with attention to linkages with other areas as well as systematic efforts and sustainable in order to face the challenges of subsystems, among others, through improved coordination between agencies that handle keolahragaan keolahragaan organization, empowerment, human resources development, the development of keolahragaan and means, improved management of resources and funding, as well as structuring a system of coaching and development of the sport as a whole. This Act is expressly set of rights and obligations as well as the authority and responsibilities of all parties (Governments, local governments, and communities) as well as synergistic coordination between the Center vertically and horizontally between regions and related institutions at both the central level as well as at the regional level in the framework of the management, coaching, and development of national keolahragaan. As a manifestation of concern in the construction and development of the sport, the public can participate by forming the parent organisation of sport on a regional and central level 34. Institutional/organization formed by that society needs a legal basis so that the seat and its existence will be more steady. The limitations of the funding source is the special problems in the activities of keolahragaan in Indonesia. It is increasingly felt with the development of modern sports that demand management, coaching and development keolahragaan is supported by an adequate budget. To that end, the policy on the system of allocating funds within the budget of revenue and Expenditure of the State and the budget of income and Expenditure in the field of keolahragaan Area in accordance with the capabilities of the budget should be implemented so that the construction and development of national keolahragaan can run smoothly. In addition, the resources of society needs to be optimized, inter alia, through the participation of the community in the procurement of funds, procurement/maintenance of infrastructure and means, and in the sports industry. With this law the system of construction and development of national keolahragaan styled as a keolahragaan building system which in essence done coaching and sports development beginning with the stages of the introduction of sports, scouting and monitoring, as well as the development of talents and increased achievement. The phasing is directed to pemassalan and pembudayaan sports, nursery, and increased achievement sports on the local level, nationally, and internationally. All these involve the phasing element Assembly, the unit of the family, education, and sports organizations that exist in society, both at the level of the region as well as the Centre. In accordance with the phasing, the entire scope of the sport can be synergized forming the national keolahragaan system building a flexible and comprehensive. This system involves three lines, namely the family line, the line of education, and the society that synergized for the newly acquired building system of national keolahragaan. The national keolahragaan system improved, inter alia, through the setting of national standards that include the keolahragaan power keolahragaan, the content of a program upgrading/training, infrastructure and facilities, conducting keolahragaan, 35


keolahragaan organization and management, as well as minimum service keolahragaan. The law on the national Keolahragaan System will provide legal certainty for Governments, local governments, and the community in the activities of keolahragaan, in realizing the peoples and Nations that are keen, active, healthy and fit, as well as the top achievers in the sport. Thus, the movement promoted the sport and mengolahragakan communities as well as the efforts of improving the achievements of sports can uplift the dignity and the dignity of peoples at the international level in accordance with the goals and objectives for sustainable national development. II. Against the position of the law (Legal Standing) Applicant based on the provisions of article 51 paragraph (1) of Act No. 24 of 2003 about the Constitutional Court mentioned that the applicant is a party which considers the rights and/or obligations 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 is the constitutional rights "are the rights provided for in the Basic Law the Republic of Indonesia in 1945. Thus in order for a person or a party may be accepted as an applicant who has the position of law (legal standing) in a petition against the law Ppengujian the Constitution of the Republic of Indonesia in 1945, then the first must explain and prove: a. Credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; 36 b. Right and/or authority konstitusionalnya in the qualification which is considered to have been harmed by the enactment of the legislation being tested; c. Loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. Further the Constitutional Court of INDONESIA has 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 (vide since verdict Number 006/PUU-III/2005 and subsequent Awards), which must meet the five terms, namely: a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. the applicant's constitutional rights that are considered by the applicant have been wronged by an act that was tested; c. Constitutional losses that the claimant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. The applicant that his position as Chairman of KONI Surabaya also as Chairman of the Commission E DPRD Jawa Timur, in his petition stated that with the enactment of the provisions of article 40 of Act No. 3 of 2005 about the system Keolahragaan Nasonal, then the right and/or authority konstitusionalnya harmed, because the provisions of a quo is considered to have been memasung or at least limiting public officials (including the appellant) who want to contribute their energy and mind for the progress of the sport also, according to the applicant the terms a quo may give rise to an attitude of doubt in the act proportionately and professionally towards the construction and promotion of national keolahragaan, in short a quo public provision has led to discriminatory treatment against the applicant, and therefore the provisions of a quo was deemed contrary to article 27 paragraph (1) of article 28D, paragraph (1) of article 37 team of paragraph (3) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945. Therefore, the applicant's interest is unquestionable, is it appropriate as a party which considers the right and/or authority konstitusionalnya harmed by enforceability of Act No. 3 of 2005 about the Keolahragaan Nasonal System. Also is there a constitutional disadvantage Applicants in question is 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 that occurred with the enactment of laws that petitioned to be tested. More also needs to be questioned who actually harmed over the enforceability of the legislation a quo, do a whole range of Sports Committee, all members of the DPRD Kota Surabaya, structural, officials throughout the entire public official or just an applicant as an individual? If the applicant on behalf of Chairman of KONI (though in Act No. 3 of 2005 about National Keolahragaan System does not recognize the term national sports Committee, but rather the KONI or KON) Surabaya city then it is sepatutnyalah based upon the power of the whole range of its administrator, or the parties have the authority to sign the giving power of attorney if the applicant referred to, and on behalf of themselves as members of the DPRD Kota Surabaya (applicant I) then had to get a special power of attorney to act for and on behalf of the REGIONAL city of Surabaya as an institution. The Government considers the applicant's plea is not clear, no care, no focus and blur (libels obscuur), primarily within the constructed constitutional losses experienced by the claimant, on one hand, the applicant stated the material charge Act a quo was considered contrary to the Constitution of the Republic of Indonesia in 1945, but on the other hand, the applicant to question and dispute the enforceability (constitutionality) Government Regulation number 16 in 2007 about the conduct of the exercise, which should be done testing (judicial review) to the Supreme Court [vide Article 24A of the Constitution of the Republic of Indonesia in 1945; Article 11 paragraph (2) letter b 38 legislation Act No. 4 of 2004 about the Power of Justice; and article 31 of Act No. 5 of 2004 about the change in the law No. 14 of 1985 on the Supreme Court]. The Government argued that the applicant currently serves as the Chairman of the Commission E DPRD Kota Surabaya, uninterrupted and reduced at all in carrying out its activities in order to fight for the well-being of the constituents and the public at large, according to the Government's efficient Office that was carried by the applicant is an important and strategic position, which certainly requires time, effort, thoughts as well as full concentration. So if you're still willing and/or given the job or position "nyambi" others (including as Chairman of KONI) is highly effective and not merely annoying, especially in public services (public services) as well as other governmental functions, thus according to the Government's provision of a quo thus has provided a guarantee of legal certainty (onrechtzekerheid) towards the construction of the national keolahragaan. On the other hand, according to the Government's efficient, if the applicant wishes to devote or contribute support effort, thoughts as well as financial support (funding) for the construction and progress keolahragaan national, then the applicant can get engaged and help the construction and promotion of a national sport in other ways (don't need to be a sysop or a Sports Committee Chairman), for example was Chairman of the Executive Board (PB) sports, become donors remain one of sport and others. According to the Government so that everyone (including as a public official or structural officials) can participate to participate to provide support in a variety of ways and forms (doesn't have to be the Acting Chairman of the National Sports Committee) to the furtherance of national keolahragaan. Based on the foregoing, the Government requested to the applicant through his Excellency the Chairman of the Constitutional Court Judges Assembly/to explain and prove legally in advance whether the applicant as a party right and/or authority konstitusionalnya harmed. The Government argues that there is no and/or has incurred losses for the rights and/or the applicant's constitutional authority over the enforceability of Act No. 3 of 2005 about National Keolahragaan System, because 39


It is the seat of the law (legal standing) of the applicant in the application for this test did not meet the requirements as stated in Article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as well as based on the rulings of the Constitutional Court. Based on the description above, the Government requested his Excellency the Chairman of the Constitutional Court Judges Assembly/wisely declared the applicant's application was rejected or at least unacceptable (niet ontvankelijk verklaard). However when his Excellency the Chairman of the Constitutional Court Judges Assembly/argued others, following the Government's explanation of the material delivered testing Act No. 3 of 2005 about National Keolahragaan System. III. The Government's explanation of the Above Application testing (Constitutional Review) Act No. 3 of 2005 About National Keolahragaan System. With respect to the applicant's presumption in their petition to the effect that the provisions of article 40 of Act No. 3 of 2005 about the system of national Keolahragaan, which States the following: "National Sports Committee, Executive Board, province, and Sports Committee, the Committee of sports kebupaten/cities are independent and not tied to the activities of the Office of structural and public office". The above provisions considered contrary to article 27 paragraph (1) of article 28D, paragraph (1) of article team of paragraph (3) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945, which States as follows: article 27 paragraph (1) States, "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya". Team of the article paragraph (3) States, "every person has the right to freedom of Association, of Assembly, and issued an opinion". Article 28D paragraph (1) States, "every person has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". 40 Article 28I paragraph (2) States, "every person has the right to be free from discriminatory treatment on the basis of any kind and is entitled to protection against discriminatory treatment". According to the Applicant the terms a quo, considered to have caused the following things: 1. That the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System, is supposed to have limit or Sha-whether or not it has been memasung the parties associated with the structural as well as the Office of public office (including the appellant) who want to contribute their energy and mind for the progress of national sport, which in turn can lead to an attitude of doubt in the Act to develop and promote the sport of proportionately and professionally. 2. That the provision of a quo is also thought to have led to discriminatory treatment, because on one side of the holder of a public office or structural position is not prohibited to be caretaker of the sport (cabor) as well as other offices (such as the Chairman of a political party), but on the other hand is not allowed or prohibited to occupy the Executive Board Committee of sports both national, provincial or district/city. With respect to the applicant's assumption, the Government may provide clarification as follows: a. the philosophical and sociological Explanation of the formation of Act No. 3 of 2005 about National Keolahragaan System, things can be submitted as follows: 1. That the coaching and development of national keolahragaan that can ensure equitable access to sport, health promotion and wellness, increase in achievement, and management keolahragaan which is able to face the challenges and demands of the national and global life change requires a national keolahragaan system dealt with focused and professional. 2. That the nature of professionalism within the framework of the construction and development of national keolahragaan is indispensable in order to avoid conflict of interest 41 (conflict of interest) and in order to maintain neutrality in the construction and promotion of national keolahragaan, primarily against the management of the National Sports Committee, so hopefully management can be managed by parties who have the opportunity of time, effort and thought that was enough. 3. That if a Head region, Deputy Head of the county or the Chairman/Vice Chairman of the DPRD (structural officials or public officials) the Chairman or Core National Sports Committee, certain conflict of interests (conflict of interest), particularly in the planning, discussion and implementation (operational) budget support keolahragaan. In other words it is extremely unlikely a structural or public officials who discuss and determine the magnitude of the budget allocation of keolahragaan but also as a user of the budget in his capacity as Chairman of the Executive Board or the core national sports Committee. B. a description of the material against the charge of verse, chapter, and/or parts of laws that petitioned to be tested, things can be submitted as follows: 1. Tasks and powers of the Central Government and regions in the field of keolahragaan, i.e. as follows: a) the Government has the task of setting and implementing policies as well as the standardization of field keolahragaan nationally, and local governments have a duty to implement policies and coordinate the construction and development of keolahragaan and implement standardization field of keolahragaan area (vide Article 12 of Act No. 3 of 2005 about the system Keolahragaan National). And the Government determines national policy keolahragaan, keolahragaan national standards, as well as the coordination and supervision of the conduct of the national keolahragaan against, and the responsibility of the Minister (vide article 2 of the Government Regulation Number 42 2007 16 years of conducting of Keolahragaan). While local governments have the task of implementing the national policy set by the Central Government, and the standardization of keolahragaan in the area (vide article 6 the Government Regulation number 16 in 2007 about the conduct of the Keolahragaan). b) Authorize national keolahragaan system management is the responsibility of the Minister, and can define a national policy, national keolahragaan standards, as well as coordination and surveillance against the management of the national keolahragaan, and as the provider of the national keolahragaan the Government's responsibility to do the planning keolahragaan, keolahragaan organization, funding, and oversight (vide article 32 Act No. 3 of 2005 about National Keolahragaan System; Article 42 and article 43 government regulations number 16 in 2007 about the conduct of the Keolahragaan). While the provincial government authorities implement policies keolahragaan, planning, coordinating, coaching, development, application of standards, mobilizing resources, and oversight (vide Section 33 Act No. 3 of 2005 about National Keolahragaan System). Gurbenur, as the local authorities have the responsibility to make the planning of provincial keolahragaan, both the strategic plan and operational plan (vide Article 45 Government Regulation number 16 in 2007 about the inaugural Keolahragaan). From the description above, describe clearly and firmly that the management keolahragaan is the responsibility of the Central Government and local governments as set forth in Act No. 3 of 2005 about National Keolahragaan System and Law Number 32 of 2004 concerning Regional Government juncto Government Regulation Number 38 in 2007 about the Division of Authority Between the Central Government and local governments. 43 2. The duties and functions of the National Sports Committee, the Committee on the exercise of the province, kabupaten/kota Sports Committee and the parent organization of the sport that is as follows: a) National Sports Committee formed by the parent organization of the sport have a task that is as follows: 1) help the Government create a national policy in the field of management, coaching, sports development and achievements at the national level; 2 the parent organization which coordinates) sports, sports organizations, as well as the Sports Committee of the Sports Committee of provincial and district/city; 3) carry out management, coaching, sports development and achievements on the basis of those powers; and 4) carry out and coordinate the activities of national sports multikejuaraan. Provincial sports Committee, formed by the parent organization of the sports of the province and is independent, is in charge of the management of the provincial sports. And Sports Committee at the level of district/city, formed by the parent organization of sport kabupaten/kota and are independent, have a duty as follows: 1) Assist local governments in making regional policies in the field of management, coaching, sports development and achievements; 2) Co-ordinate the parent organization of sport and functional sports organizations; 3) carry out management, coaching, sports development and achievements; and 4) Prepare, implement, and coordinate the participation of sports achievement in sporting activities that cross regional and national in nature. (vide Section 36 to article 39 of the Act No. 3 of 2005 about National Keolahragaan System, article 53, article 44


54, article 55 the Government Regulation number 16 in 2007 about the conduct of the Keolahragaan) b) National Sports Committee has the authority to propose to the Minister a plan and programme in making national policy concerning the management and the construction and development of national sports achievements, and coordinate the parent organization of the sport, the parent organization of the provincial sports committees, functional, as well as the Sports Committee of the County/city in the framework of the construction and development of national sports achievements (vide Article 53 , Article 54, Article 55 and the Government Regulation number 16 in 2007 about the conduct of the Keolahragaan) with regard to the provisions set forth in Act No. 3 of 2005 about National Keolahragaan System and Government Regulation number 16 in 2007 about the conducting of Keolahragaan, clearly expected a duplicate post of nothing among officials and the public with structural National Sports Committee in accordance with article 40 of Act No. 3 of 2005 about National Keolahragaan System. 3. The use of the budget in support of the construction of a sport that is as follows: a keolahragaan budget Resources) found in the income and Expenditure Budget of the State and the budget of income and Expenditure area. In addition funding sources can be obtained from keolahragaan: 1) of the community through various activities based on the provisions in force; 2) mutually beneficial cooperation; 3) foreign aid are not binding; 4) sports industry business results; 5) compensation over the status and transfer of the sportsmen; 6) funds the construction of professional sportsmen; 7) other legitimate sources based on the provisions of regulation perudang-invitation. 45 aside from the sources above, keolahragaan funding can be obtained from other sources, namely: 1) ticket matches/competition; 2 sports facility rental); 3) selling products means sports; 4) sport labeling; 5) advertising; 6) sports broadcasting rights; 7) promotions, exhibitions, and sports festival; 8) Agency; and 9) information services and consultancy keolahragaan. (Vide Article 69 and article 70 of Act No. 3 of 2005 about National Keolahragaan System; Article 6 the Government Regulation number 18 of 2007 about funding Keolahragaan) b) deliberations of the Mechanism to support the funding of keolahragaan, the Government can form a State-owned keolahragaan company incorporated law (Vide section 8 Government Regulation number 18 of 2007 about funding Keolahragaan). c) Allocation of funds obtained from the funding source as mentioned above, can only be allocated for organizing the keolahragaan includes: 1) sports education, sports recreation, sports and achievements; 2) coaching and sports development; 3) management of the keolahragaan; 4) weekend and sports championships; 5) coaching and sports development of the perpetrator; 6) improved quality of and quantity of infrastructure and means of sports; 7) development of science and technology keolahragaan; 8) empowerment of communities in the activities of peranserta keolahragaan; 46 9) development cooperation and information keolahragaan; 10) coaching and development of the sports industry; 11) standardization, accreditation, and certification; 12) prevention and control of doping; 13) award; 14) implementation of oversight; 15) development, oversight, and management of professional sports. (Vide article 9 the Government Regulation number 18 of 2007 about funding Keolahragaan) d) keolahragaan Funding is used for the implementation of sports education, sports, recreation and sports achievements (Vide article 9 the Government Regulation number 18 of 2007 about funding Keolahragaan). Based on the description above, in order to ensure transparency and accountability in the preparation and use of budget keolahragaan then required is not setting public officials/officers for assuming the post of Chairman of the structural Committee Sports national and provincial sports Committee and district/city but rather setting a firm and clear about the system of the separation of responsibilities between compilers and users budget. 4. The mechanism of supervision (control) against the use of the budget keolahragaan, that as follows: supervisory Mechanisms use a) keolahragaan budget by the Government is carried out by the Minister at the national level, the Governor at the provincial level and at the level of the Bupati/Walikota kabupaten/kota, and society conducted with the principles of transparency and accountability (Vide Section 87 of the Act No. 3 of 2005 about National Keolahragaan System, article 113 Government Regulation number 16 in 2007 about the Organization of Keolahragaan and section 13 the Government Regulation number 18 of 2007 about funding Keolahragaan). 47 b) liability the use of budgets allocated through the NATIONAL BUDGET or the BUDGETS must be made in accordance with the principle of responsibility mechanisms of transparency and accountability. Based on the description above, especially regarding the supervision of the use of budget keolahragaan will not give rise to a conflict of interest (conflict of interest) in the structural/public officials officials not concurrently served as Chairman of the National Sports Committee, Chairman of provincial sports Committee, Sports Committee Chairman or Kabupaten/kota. Otherwise, once the stuktural officials/public officials while he was Chairman of the National Sports Committee, provincial sports Committee Chairman, Sports Committee Chairman or district/city, then in case of violations/deviations against the use of budget keolahragaan it is not possible structural officials/public officials will give/dropping sanctions against national sports Committee Chairman, Chairman of the Sports Committee of the provincial sports Committee Chairman, or district/city that in fact the acting itself. So it is entirely appropriate and well-founded provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan Systems prohibit the fhui National Sports Committee, Sports Committee and Sports Committee of the province, kabupaten/kota replacing structural officials/public officials. Further to article 40 of Act No. 3 of 2005 about National Keolahragaan System expressly instructed that the National Sports Committee of the Executive Board, Committee on sports and Sports Committee of the province, kabupaten/kota are independent and not tied to the structural position activities or public office. The Government does not agree with the arguments and/or propositions of the applicant in the application for a quo, stating that the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System, or at least limit is considered to have been memasung public officials (including the appellant) who want to contribute their energy and mind for the progress of national sport. 48 according to the save the Government any person (including the applicant) to be able to devote, engaged, and contribute thoughts or his energies to the advancement of the sport through a variety of means and channels available. For example, in its capacity as a public official/structural officials (such as the applicants) can still provide ease/facilities in the provision of sports facilities and infrastructure, assist and fight for budget allocated keolahragaan in the discussion of BUDGETS, become donors remain on one sport, and so on. In other words the participation of every citizen to participate in furthering the sport doesn't have to be the Chairman of the Executive Board or Committee national sports, the Sports Committee of the province, or district/city Sports Committee. In addition, according to the Government restrictions against the Chairman of the Executive Board or Committee national sports, the Sports Committee of the province, or district/city Sports Committee for not replacing public officials/structural, officials were not able to immediately be considered as discriminatory treatment since the restrictions were not based upon religion, tribe, race, ethnic, group, class, social status, economic status, gender, language and political beliefs (vide article 1 paragraph (3) of Act No. 39 of 1999 on human rights and article 2 paragraph (1) of the International Covenant on Civil and Political Rights as well as the Olympic Charter-September 1, 2004) confirms that "any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement" (Fundamental Principles of Olympism No. 5). To this day approximately 200 member countries of the International Olympic Committee (IOC) comply with the principles. Public or Government officials in those countries no one complained or objected to the restrictions as defined in Chapter 4 of Article 29 of the Olympic Charter which reads: "the Government or other public authorities shall not designate any members of an NOC. However, an NOC may decide, at its discretion, to elect the members of the U.S. representatives of such authorities ". 49


In addition to these restrictions are also in order to provide the protection and fulfilment of the rights of others (everyone) which also obliged given the same opportunity to devote his energies and thoughts and donated for the sake of the progress of the sport or in short terms a quo is a form of public protection for everyone who want to participate in furthering the sport in Indonesia. So the above restrictions, according to the Government also have been efficient in accordance with the provisions of article 28J paragraph (2) of the Constitution of the Republic of Indonesia in 1945, other than regulated by statute (Act No. 3 of 2005 about National Keolahragaan System), as well as the restrictions on does not conflict with the norms of religion, morality, public order or the applicable legal norms. Such restrictions also cannot be seen immediately at odds with the Constitution of the Republic of Indonesia in 1945, because of the choice of such a system is the policy (legal policy) which cannot be tested, unless done arbitrarily (willekeur) and beyond the authority of lawmakers (detournement de pouvoir), in other words of wisdom that became the authority of lawmakers (President and House of representatives), vide the verdict of the Constitutional Court Docket Number 070/PUU-II/2004 and no. 19/PUU-V/2007. That from the description above, the Government does not agree with the assumptions and postulates of the applicant stating the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System is considered to have been memasung or at least limiting the parties associated with the structural as well as the Office of public office (including the appellant) who want to contribute their energy and mind for the progress of the sport, and that in turn according to the applicant the terms a quo considered had led to discriminatory treatment towards the fulfillment of the guarantee to get treatment that same 50 before the law and Government as well as a guarantee of legal certainty (rechtszekerheid), as guaranteed in the provisions of article 27 paragraph (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945, according to the Government's provision of a quo thus has given assurances over the creation of legal certainty (rechtszekerheid), and a sense of Justice in society, especially in giving equal opportunity to the Community (everybody) are not as a public official or officials of the structural , and therefore the provisions of a quo is not contrary to article 27 paragraph (1) of article 28D, paragraph (1), the team of the Article paragraph (3) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945, and not adversely affect the rights and/or constitutional authority to the applicant. IV. CONCLUSION based on the above explanation, the Government appealed to his Excellency the Chairman of the Constitutional Court Judges Assembly/Republic of Indonesia are checking and testing application termination (constitutional review) Act No. 3 of 2005 about National Keolahragaan System, against the Constitution of the Republic of Indonesia in 1945, can give a verdict as follows: 1. to declare that the applicant has no legal position (legal standing); 2. Rejects the plea the applicant testing (void) entirely or Sha-whether appeal Applicant testing is unacceptable (niet onvankelijk verklaard); 3. Accept the Description of the Government as a whole; 4. Declares Article 40 of Act No. 3 of 2005 about National Keolahragaan System, is not contrary to article 27 paragraph (1) of article 28D, paragraph (1) of article team of paragraph (3) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945. 5. the Stated Act No. 3 of 2005 about National Keolahragaan System, still have the force of law and 51 apply binding on the entire territory of the State Union of Republic of Indonesia. However when his Excellency the Chairman of the Constitutional Court Judges Assembly/Republic of Indonesia holds another verdict, please the wise and seadil-fair (ex aequo et bono). [2.3] considering that to strengthen his statement, the Government has proposed witnesses and expert witnesses, named the witnesses called Aristo Munandar, h. Mahfouz, S.H., and Gus Irawan, S.E., as well as the experts named Prof. Dr. Harzuki, S.H., M.H., Prof. Dr. Toho Cholik Muttohir, M.A., Ph.d., Prof. a. Mansyur Effendi, Drs. Ramli Puratmaja, m. Si., Prof. Dr. Rusli Lutan, who has testified under oath at the trial date of January 31, 2008, which explains the substantially as follows: Aristo Munandar • Government Witness that the witness served as head and also given positions as Chairman of KONI Subdistrict. Since the year 2000 has served as the Regent of West Sumatra Province and Agam based on Deliberation Areas KONI was appointed Chairman of KONI District Agam and last on 11 and 12 December 2007 on Musda KONI in Agam. its administrator is no longer ruled by public officials and officials of the structural, in accordance with the provisions of article 40 of the ACT SKN; • Regulatory ACT that before the SKN is present, there is a hope and desire of the public lover of sports and the parent-the parent organization that assumed by public officials or officials of a structural, as related to how provision of facilities and support. But those problems have been answered by SKN ACT particularly article 12 paragraph (1), article 13, article 16, concerning the form of the role of Government. • That as policymakers, Government does not hand disowned, remain responsible for the advances in the development of the sport. Then in implementing that policy on KONI. Thus, it is precisely what the ACT implemented SKN; Government Witness H. Mahfouz, S.H. • That relates to the implementation of the ACT and REGULATION Number SKN 16 2007, the witness made a statement to stop, as caretaker of the KONI, 52 because of what is already specified in article 40 and in PP number 16 of 2007 Article 56 expressly already set up that public officials or officials of a structural should not be an sysop KONI, and are also bound by the oath of Office and duties as head of the region and Deputy Head of the region have to obey and execute the provisions of the regulations of the legislation , so no other words unless the witness has to carry out the provisions in question; • That relates to a member of PARLIAMENT, in the Act No. 32 of 2004 on local governance, article 54 paragraph (1) stated, "members of PARLIAMENT barred from sitting positions as State officials, a. b. the judge at the trial, c. civil servants, members of the INDONESIAN ARMED FORCES, employees at State-owned enterprises, local-owned enterprises or other agencies that the budget is sourced from STATE BUDGET and GRANT ". The issue is regarding the circle inside it's own stewardship sometimes ask public officials or structural officials to remain in his position as Chairman; • That regarding budgeting KONI after no longer duplicate assumed by public officials or officials of structural does not matter, for having now held by private budgets KONI be 5 billion, which was originally only 2.6 billion. Therefore, there is no relation of Executive Board the KONI public officials not public officials. With the ACT of SKN and PP number 16 of 2007 is truly a blessing for us (especially the witnesses). Because as such witnesses as public officials can focus a number of obligations that should be done by local authorities together with the PARLIAMENT. Government witness Gus Dunlap, s. E • that to achieve the best results of the Act the national Keolahragaan System menginkan Executive Board and management of the KONI independently professional focus and thus independent. Independent escort referred to then there should be a pemisahaan function, to avoid a conflict of interest at the same time, that there are at least 3 functions in the ACT of SKN, first planning and budget. The second third, and organizing surveillance. Governments, Governors, mayors and Regents remains on a position with the functions and interests is so great, that is the responsibility of the Government is in order the construction achievements of 53


sports infrastructure, with funding by the Government, and respect for the achievements of sports as well as by the Government. So that the function of planning and budget are in the Government. While the organization is on KONI should not be done by the Government. Similarly the pengawasannya carried out by the Government, and also by the HOUSE of REPRESENTATIVES, PARLIAMENT. • That an organization should indeed there is a separation of functions, will become independent if not all functions there are in the hands of a body of one person; Description Government Expert Prof. Dr. Harzuki, S.H., M.H. • That KONI is an agency that organizes keolahragaan in Indonesia. However because there are rules of the Olympic Charter the Olympic Charter or then the Government is limited. Thus the restrictions not only by legislation alone, but there are also specific restrictions of the IOC to government officials, namely among others mentioned in article 29 of the Olympic Charter that says, that the Government or a public authority to another so as not to be appointed as a member of the National Olympic Committe (NOC), or Indonesia Olympic Committee (KOI), except if it is asked or there is a policy of the leadership of the IOC or the NOC itself; • That after Sri Sultan Hamengkubuwono IX, the late Chairman of KONI, KONI and KOI made sort of the side of the coin. Where's the KONI directly on the parent organizations that carry out activities in the country while the KOI only related to the International Olympic Committe (IOC) or the International Olympic Committee who has basic budget called the Olympic Charter, and in Indonesia in its development still cling to those two things, namely, KOI and KONI; • That KONI Act to invigorate the parent organization that deals with the Government, but the KOI should not touch or may not be directly associated with the Government, should cooperate but may not associate themselves with the Government. When compared with some coaching abroad, for example in the USA, there are only KOI, KOI where also given authority under the legislation by the Senate legislation in America, then in Malaysia, Malaysia has two National Sports Council, which the Government acted in 54 countries, and build the sports activities in the country, while the Malaysian Olympic Committe, serving abroad to participate in the Olympic movement; Description Government Expert Prof. Dr. Toho Cholik Muttohir, M.A., Ph.d. • That the intention of the drafting of the Statute of the national Keolahragaan is indeed aspirational, adaptis, and reformatif. Act No. 3 of 2000 about National Keolahragaan System is a foundation and starting point of the construction and planning of national keolahragaan more advanced, with attention to the various changes that occur, both national and international. Things that are set forth in Act No. 3 of 2000 about National Keolahragaan System paying attention to the principle of decentralization, autonomy, community participation, keprofesionalan, partnership, transparency, and accountability. System management of the construction and development of national keolahragaan organized in the spirit of the policy autonomy of the region, in order to realize the ability of regions and communities that are able to develop their activities independently and keolahragaan. Development of keolahragaan can no longer be addressed gradually became legally but should be handled in a professional manner. • That the Act No. 3 of 2005 about National Keolahragaan System through a long process involving the whole stakeholders including KONI Sports Center, KONI, KONI Provincial County town, the parent organization of the sport, expert, college sports, and society in General, and furthermore has been through socialization, public test and get feedback from various parties for the consummation of legislation of the system of national Keolahragaan. One of the contents spread associated with Article 40 of Act No. 3 of 2005 about National Keolahragaan System is concerned the question of whether it is true that the enactment of article 40 of the Act means the initial sign of SKN to the demise of the sports world Indonesia with or without the bureaucrats directly involved sports activities of overarching goals. According to experts, thus sparing with the enactment of Article 40 of Act No. 3 of 2005 about the system of national Keolahragaan national keolahragaan will be upbeat, more advanced due to the management of sports will be carried out professionally in accordance with the demands of the development of the sport insist the management of 55 system more productive, effective, efficient, and transparency and accountability. Sports in the future is predicted to increasingly complex and complicated so requires a systemic management and professionals as well as supported by the technology with the overall setting. Obviously in this context, the sport can no longer managed part-time, part-time, and not focus on the tasks and functions; • Article 40 of Act No. 3 of 2005 mentions, that the National Sports Committee of the Executive Board, the Committee on the exercise of the provincial, the Regency of the city Sports Committee are independent and not tied to the structural position and activity of public office. According to experts, saving that article 40, in accordance with the demands of sports management oriented to the future and the progress of the sport. It is based on the consideration, that the management of the keolahragaan of the future should be treated independently and in a sense is free from the influence and intervention of the interests of any party including educators to maintain neutrality and guarantee keprofesionalan management. Neutrality and keprofesionalan is an inevitability which should be maintained in the management of modern sport. • Article 40 should still be implemented because there is no aggrieved parties who, because of this article in fact does not restrict the rights of public officials or officials of the structural opportunities or even provide ample opportunity for anyone who wishes to advance the sport through the stewardship of the National Sports Committee, the Committee of the provincial sports and Sports Committee of the District of the city. According to experts, saving that article 40, have been considering the workload includes a lot of work and service to the community to do structural officials or public officials that require greater attention in the present and the future. • Structural in terms of official Duties as Governor have been regulated specifically in article 12 of Act No. 3 of 2005 about National Keolahragaan System Article 18 juncto Government Regulation number 16 in 2007. In this regard, the Governor as the head of Government of the province implement policies, coordinating construction, development, implement the standards, and conduct surveillance. With such capacity, an official of the Governor when the remaining positions as Provincial Sports Committee Chairman 56 then it would cause confusion in carrying out the duties and functions of each. This obviously gives rise to inconsistencies in the conduct of the national keolahragaan system. When structural officials and public officials and interim positions as Chairman of the Sports Committee, then it will give rise to a conflict of interest and confusion in the system of accountability for the financial administration of the State is supposed to do appropriate financial accountability mechanisms. • Relate to discrimination, in Act No. 39 of 1999 on human rights at Article 1 point 3 mentions, "discrimination is any limitation, harassment or exclusion directly or indirectly based on the distinction of man or the basis of religion, tribe, race, ethnic, group, class, social status, economic status, language, sex, political beliefs, resulting the removal, diversion or removal of the recognition of the implementation or use of the HUMAN RIGHTS and basic freedom in the life of the individual as well as collective good in the field of political economics , social, cultural and other aspects of life. " In addition, according to the expert, efficient restriction is against the Chairman and administrator of the National Sports Committee, the Committee on the exercise of the province or district/city Sports Committee for not replacing public official or officials may not necessarily be structurally considered as being discriminatory treatment, it is also aligned with the Olympic Charter, which until then was more or less from 200 countries from the IOC subject to these rules. The public and Government officials in those countries no one complained or objected to the existence of such restrictions. • Article 40 in fact is not a restriction but only as a legal policy setting that does not conflict with article 28J UUD 1945. The analogy of the restriction, is also regulated in Act No. 32 of 2004 on local governance, for example Article 28 Letter B stated, "the head of the region and Deputy Head of the region are prohibited from participating in a good company of private property or State/County or in any field, Foundation". Another example, in Act No. 43 of 1999 regarding the change in the law No. 8 of 1974 about Staffing issues article 3 States, "civil servant serves as the elements of the State apparatus responsible for 57


providing service to the community as a professional, honest, just and equitable in the discharge of the duties of State governance and development. In the position and tasks referred to in the paragraph above, public servants must be neutral from the influence of everyone from political parties and not discriminatory in providing services to the community. " To guarantee neutrality referred to civil servants in the top public servants are prohibited from becoming members or trustees and political parties. • Next is related to why administrators KONI is not tied to replacing structural officials and public officials while in sysop should sports. According to experts, the glasses that the task of the National Sports Committee at its core is to help Governments, provincial sports Committee helps provincial governments and district/city Sports Committee helps the County Government/cities in the fields of management, coaching, officiating and overachievers and mengkoordiansikan parent branches of sport. Whereas the task of the organization is doing a sport coaching and development of sport achievement on one type of branch keolahragaan both on the local level, national and international level. A parent organization Chairman sports much lighter burden of his task so if replacing public officials or structural officials will not be affected directly against public office as well as their structural position. So the existence of a parent organization Chairman sports focus to coaching after his branch and minimize the occurrence of CCN, abuse of authority and position, as well as exercise the coaching is good governance. KONI has the task of spacious coverage because carriers coordinate sports and has the duty of coaching and development achievements of one type of sports. • Governor, Governor, Mayor as officials in the Government have structural duties, authority, and responsibility of organizing the national keolahragaan system in an area that includes the sports education, sports, recreation and sports achievements. This Article 12.13, 14 laws SKN, Jo. REGULATION No. 15 of 2007 Chapter II, chapter III and chapter IV. Pay attention to the duties and responsibilities of officials in such a broad structural coverage, according to the experts, saving unnecessary and disproportionate when structural 58 officials such as governors, Regents, mayors hold office again as Chairman of the Sports Committee that in fact its task of assisting local governments in fostering sports achievements. • Review of internal consistency structural officials already right for not serving as caretaker Committee Chairman sports, because it may cause confusion or deception in the Office. As in Act No. 3 of 2005 assignment of authority and responsibility of the parent organisation of sport is explicitly not to help the Government as well as the National Sports Committee. In this context, an official of structural is already fit and does not cause confusion to the Treasurer of the parent organization of the sport, because this is not contradictory. This condition also provides flexibility for structural officials to devote itself in the field of sports and can develop his mind in the development of sport achievement. • Relate to public officials, by law Number 32 of 2004 concerning Regional Government, article 54 regulates about prohibition and the dismissal of members of the PARLIAMENT who stated, "member of PARLIAMENT banned also concurrently served as officials of other countries, judges on the judicial bodies on civil servants, members of the TNI/national police officers at STATE-OWNED ENTERPRISES/LOCAL and or other bodies that the budget is predicated on a BUDGET/BUDGETS. Members of PARLIAMENT also are prohibited from doing work appropriate structural officials on private education institutions, public accountants, consultants advocate, lawyer, notary, physician practices and other work related to the tasks of the authority and others as a member of PARLIAMENT; Description Government Expert Prof. a. Mansyur Effendi • That at its core, according to experts, Act No. 3 of 2005 about National Keolahragaan System there is no element of discrimination, that there is a regulation, which is set in a kind of specification where people increasingly intensive, serious in many areas. Therefore, associated with article 29 paragraph (2) of the Declaration of HUMAN RIGHTS which States, "everyone runs the obligations subject to the restrictions set out in the legislation to ensure the respect of freedom of confession, in accordance with rule 59, order public morals, general welfare is fair in the well-being of democratic societies". So internationally allows to do such limitations. Thus, the HAM is not completely free, but there are restrictions in the interest of the public. Therefore, in Article 73 Law Number 39 of 1999 there are also limitations and prohibitions; • Frugal experts that according to, first, Article 40 of Act No. 3 of 2005 about National Keolahragaan System should be linked to article 3 the Sports Act, which describes the problem of discrimination is clearly not desirable. Second, in order for us all to understand correctly the meaning of HUMAN RIGHTS itself, since HUMAN RIGHTS are universal belonging to all humanity so that we should be able to put in a professional manner. Third, don't easily simplify, mensimplikasi, or expand the meaning of HUMAN RIGHTS itself; Description Government Experts Drs. Ramli e. I Puratmaja, M.Si 1. Understanding The Structural Position. a. Act No. 43 of 1999 regarding the change in the law No. 8 of 1974 regarding Staffing issues, the explanation of article 5 paragraph (1) States that, "the Office is a Position that shows the tasks, responsibilities, authority, and the right of a person's civil servants in a given unit of the Organization". While the Structural Position is "a Term expressly exist in the organizational structure". b. Act No. 3 of 2005 about the system of national Keolahragaan in the explanation of article 40 States that the structural position is "a term which indicates the duties, responsibilities, authority and rights of a civil servant and military in order to lead a unit of organization of State or Government, among others, the Office of Echelon in a Department or a non government institutions Department". Understanding the structural position in the Staple Employment laws and legislation of the national Keolahragaan System, has the same essence that is is the leadership or the Office that looks firmly in government organization units. 60 2. The Sense Of Public Office. a. Act No. 3 of 2005 about National Keolahragaan System, an explanation of article 40, was a public office is "an Office which is obtained through a process of direct election by the people or through the election in PARLIAMENT-RI, among others, President/Vice President and members of the Cabinet, the Governor/Deputy Governor, Regent/Vice Regent, the Mayor/Deputy Mayor, members of the DPR-RI, DPD-RI, a member of PARLIAMENT, Chief Justice, members of the Judicial Commission TNI Commander and Assistant, ". b. Regulation of the Minister of State for Administrative Reform State number PER/04/URM.PAN/4/2007 on guidelines of the Formulation, implementation, evaluation and revision of Public Policy Performance In Environmental Agencies of the Central Government and the regions, in the introduction, the letter E number 11 States that "public officials is any State apparatus which has the authority to make public policy on the environment and local government". The sense of public office in the law on the system of National Keolahragaan and regulation of such Youth, essentially the same IE both have authority in public policy making and formulate, in legislation including Perda. 3. Perangkapan Position. a. restrictions on multiple structural and public office position on Act No. 3 of 2005, based on a consideration of the principles of good governance (Good Governance): 1) build partnerships with communities through NGOS so as to work together; 2) Can give space to other people (society) for his role as one of empowering the community; 3) within the framework of checks and balances where the Government plays the role of regulators and the evaluation, while the implementation is carried out by NGOS; 4) so that the professionalism of public officials and structural position in the running of tasks is not interrupted because of the bustle in the field of 61


each has been very solid; 5) so that public officials and officials of the structural focus and give full attention including time in providing service to the community in the field of duty respectively. b. limitation of rangkapan as one of bureaucratic reform agenda in the fact that since 1999 has been running gradually, for example: 1) the ban on CIVIL SERVANTS being members of political parties and members of the NATIONAL POLICE reinstated the TNI & structural except switch status, as set forth in Act No. 8 of 1974 juncto Act No. 43 of 1999. 2) Prohibition Candidate head of a region and Deputy Head of the region in the status as acting head of the region and the DPRD, as set forth in Act No. 32 of 2004. 3 the DPD) candidate from civil servants, members of the INDONESIAN ARMED FORCES, or a member of the State police should qualify, among others, had to resign as a member of the INDONESIAN civil servants, the police, members of the RI, as set forth in law No. 12 of 2003 on general elections members of the HOUSE of REPRESENTATIVES, DPD, and PARLIAMENT, article 64. 4) Government Regulation Number 2000 100 juncto Government Regulation No. 13 concerning the appointment of CIVIL SERVANTS in the Office of a structural, i.e. CIVIL SERVANTS occupying the position of structural should not be reinstated as a structural double structural or functional importance. Description Government Expert Prof. Dr. Rusli Lutan • the need to understand That behind the Act No. 3 of 2005 about National Keolahragaan System, is in order to answer what model construction keolahragaan suitable for Indonesia. Therefore, it is in fact very unusual article 40 in order, arrange for in Chapters V, VI, VII, Act No. 3 of 2005 about National Keolahragaan System is set up, that the local governments are responsible in order to formulate public policy, interpretation and to the evaluation. We hope thus KONI back to the original spirit that is as NGO, which at that time put the sport as a political platform in 62 revolutions multi complex that its peak is very unusual in the 4th Asean Games; • That the expert's own academic manuscript was co-author of Act No. 3 of 2005 about National Keolahragaan System is, therefore, nothing is harmed by the Act a quo, since Act No. 3 of 2005 about National Keolahragaan System thus set up more solid order, as well as in a synergy that steady; [2.4] considering that the House of representatives had given a written description that is read out at the trial on 8 January 2008 and additional information presented in the Council on 31 January 2008, outlining the following: a. the provisions of Act No. 3 of 2005 about national Keolahragaan System appealed to penguijian against the Constitution. The applicant filed his petition in testing over the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System, which reads: "National Sports Committee Executive Board, Committee on sports and Sports Committee of the province, kabupaten/kota are independent and not tied to the activities of the Office of structural and public office". B. Rights/constitutional authority according to Applicant aggrieved by the enactment of Act No. 3 of 2005 about National Keolahragaan System. 1) that the applicant in his petition argued, that the right/konstitusionalnya authority violated and harmed by the enactment of Act No. 3 of 2005 about National Keolahragaan System, as guaranteed in the provisions of article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution. 2) that the applicant in the application for a quo also suggests that citizens have equal rights and the same obligations before the law and the Government as guaranteed in the Constitution of 1945. That the existence of the restriction and distinction between sysops KONI and the sports, of course, shaper legislation 63 laws had committed gross negligence, has reduced significantly obstruct, reduce the applicant's constitutional rights, because the framework between the administrators and the KONI sport is almost the same, let alone sports is part of KONI, resulting in discrimination and harm the applicant's constitutional rights. 3) That as for the rights/constitutional authority according to the applicants harmed by the enactment of the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System is: "that the applicant aggrieved as the Chairman of the Commission E DPRD Jawa Timur konstitusionalnya lost the right to donate labor and his thoughts for the progress of world sport". 4) that the Applicant therefore considers the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System is contrary to the Constitution of the Republic of Indonesia in 1945, especially in terms of: 1. Article 28C paragraph (2) which reads: "everyone has the right to promote himself in the fight for the right collectively to build community, the nation and the country." 2. Article 28D paragraph (1) which reads: "every person has the right to the recognition, protection, and guarantee legal certainty the fair and got rewards and decent and fair treatment in employment relationships". 3. Article 28I paragraph (2) which reads: "every person has the right to be free from discriminatory treatment on the basis of anything and is entitled to protection against discriminatory behaviour". C. Description of the HOUSE of REPRESENTATIVES on the basis of the applicant's application for a quo can be explained as follows: 1. The position of the law (Legal Standing) Applicant qualifications that must be met by the applicant as a party have been arranged in the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court, which declared that "the applicant is a party which considers 64 right and/or authority konstitusionalnya harmed by the enactment of legislation , that is: a. an individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the 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." The provisions of article 51 Paragraph Explanation (1) explains, that only the rights explicitly regulated in the Constitution of 1945 that included "constitutional rights". Therefore, according to Act No. 24 of 2003 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 in 1945, then the first must explain and prove: a. Credentials as the applicant in the application for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; b. rights and/or authority referred konstitusionalnya "explanation of article 51 paragraph (1)" which is considered to have been harmed by the enactment of laws; c. Loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. Limitation on losses of constitutional, Constitutional Court of Republic of Indonesia have given understanding and limitation of losses arising from the constitutional enactment of a statute must meet five terms (vide the verdict Matter Number 006/PUU-III/2005 and Number 010/PUU-III/2005) is as follows: 65


a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. the applicant's constitutional rights that are considered by the applicant have been wronged by an act that was tested; c. Constitutional losses that the claimant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. In the fifth such terms are not met by the applicant in filing testing legislation against the Constitution, then the applicant has no legal position qualification (legal standing) as parties. PARLIAMENT argues that there is not the slightest constitutional rights of the applicant are harmed by the enactment of Article 40 of Act No. 3 of 2005 about National Keolahragaan System with an explanation as follows: a. the applicant States with the enactment of Article 40 of Act No. 3 of 2005 about National Keolahragaan System have been detrimental to the rights and/or constitutional authority the applicant as guaranteed in article 28C paragraph (2) of the Constitution. Evidence that the applicant's unsubstantiated and could not be justified given the current Applicant without obstruction able to exercise the right and/or authority konstitusionalnya as guaranteed in article 28C paragraph (2) of the Constitution, namely being a member of a political party as a container/vehicle politics in the political fight for collectively to build community, nation, and State by becoming Members of PARLIAMENT. While as a member of PARLIAMENT (public officials) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, the regional representative Council, and the regional people's representative Council 66 prohibits to concurrently with other specific position in order to create a system of Government that is clean and free of corruption, Nepotism and Kolisi (will be explained further in the subject matter of case). Thus Article 40 of Act No. 3 of 2005 about National Keolahragaan System does not constitute a barrier or a provision which mengeliminir or eliminate rights for the applicant to exercise the right and/or authority konstitusionalnya as guaranteed in article 28C the CONSTITUTION of 1945. b. the applicant States with the enactment of Article 40 of Act No. 3 of 2005 about National Keolahragaan System have been detrimental to the rights and/or constitutional authority the applicant as guaranteed in article 28D paragraph (1) of the Constitution. The evidence of the applicant are not unfounded and erred in interpreting Article 28D paragraph (1) of the Constitution, considering Article 40 of Act No. 3 of 2005 about National Keolahragaan System there is no relevance between the provisions of the prohibition on duplicate Office provided guarantees, protection and legal certainty the fair as set forth in the provisions of article 28D paragraph (1) of the CONSTITUTION of 1945. That guarantees protection and legal certainty of fair and equal treatment before the law as intended by article 28D paragraph (1) of the Constitution is essentially gives you the assurance and protection to all CITIZENS in obtaining legal certainty of fair and equal treatment in terms of doing the legal efforts. Thus no loss of rights and/or constitutional authority to the applicant, the Applicant was questioned because of a quo is a duplicate post of the prohibition provisions is set out in the legislation that enacted the same for all public office. c. the applicant a quo declared Article 40 of Act No. 3 of 2005 about National Keolahragaan system is discriminatory, thus contrary to Article 28I paragraph (2) of the Constitution. 67 the applicant's unsubstantiated Evidence and erred in interpreting Article 28I paragraph (2) of the Constitution, considering Article 40 of Act No. 3 of 2005 about National Keolahragaan System enforced equally against all public office are prohibited from remaining as caretaker of the KONI. That need to be paid by the applicant, that the notion of discrimination under article 1 point 3 Law Number 39 of 1999 on human rights, stating that, "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, economic status, sex, language, political beliefs, resulting the reduction, diversion or removal of recognition , the implementation or use of the human rights and basic freedom in the life of the individual as well as collective good in the areas of political, economic, social, cultural, legal and other aspects of life ". That is based on the understanding of discrimination in Act No. 39 of 1999 on human rights, it is clear there is not relevant and cannot be relied upon to say that the provisions of the prohibition on duplicate position for all public office discriminatory provisions are considered. Based on the propositions above, then there is no loss of rights and/or constitutional authority that the Applicant aquo, therefore then the PARLIAMENT contends that the applicant has no legal position (legal standing) so that the applicant's plea must be declared unacceptable (niet ontvankelijk verklaard) 2. Testing of Material top of Act No. 3 of 2005 about National Keolahragaan Systems of the applicant in the application for a quo, argues that the right konstitusionalnya has been harmed by the enactment of the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System, namely that the applicant aggrieved as the Chairman of the Commission E DPRD Jawa Timur konstitusionalnya lost the right to donate labor and mind 68 for the progress of the world of sports with the ban being sysop KONI. Applicant a quo also argued, that as Chairman of KONI Surabaya never interfere with the performance of the applicant as Chairman of the Commission E DPRD Jawa Timur, thus can support each other because the Commission E: the problem of sports in the East Java provincial government. Against the views of the HOUSE of REPRESENTATIVES, the claimant testified as follows: 1) that according to the provisions of article 1 point 3 of Act No. 3 of 2005 about the system of national Keolahragaan States that, "the national keolahragaan System is a whole aspect of interrelated keolahragaan programmatically, systematic way, integrated, and sustainable as a whole which includes settings, education, training, management, coaching, development, and supervision for achieving the objectives of the national keolahragaan". The provisions of article contains the passion for the intellectual life of the nation through instrument development in field of keolahragaan which is an effort to improve the quality of human life Indonesia based on Pancasila and the 1945 CONSTITUTION. 2) That in order to achieve improved quality of human beings as stated in Figure 1 above, the necessary arrangements for the National Sports Committee of the Executive Board, the Committee of sports and Sports Committee of the province, kabupaten/kota to be self-sustaining (vide Article 36 paragraph (3), article 37, paragraph (2) of article 38 paragraph (2) of Act No. 3 of 2005 about National Keolahragaan System) that is free from the influence of any party , aimed at maintaining neutrality and keprofesionalan management keolahragaan. Based on the explanation of article 40 of Act No. 3 of 2005 about National Keolahragaan System, "which is a standalone is free from the influence and intervention of any party to maintain neutrality and guarantee keprofesionalan management keolahragaan". That the independence of a national sports Committee/provincial/district/city needed in order to enforce the principle of 69


transparency and accountability are in anyway control mechanism provides an opportunity to eliminate the shortcomings and irregularities so that keolahragaan national goals and objectives can be achieved. 3). That to maintain neutrality and keprofesionalan management of keolahragaan needs to be set regarding the management of the Sports Committee in order not to be bound by the term structural activities and public office as specified in article 40 of Act No. 3 of 2005 about National Keolahragaan System, where the reason/basic conditions seen in the discussion of the Bill on Keolahragaan treatise on the Working Committee meeting (Panja) to 4 on Thursday August 4, 2005, mentioned by the Chairman of the Meeting, Prof. Dr. h. Anwar Arifin appropriate approval/agreement of the meeting suggests that: "... that could be a sysop KONI and became caretaker of the parent sports that are not public officials, not structural, so sports officials is taken care of with all the time and not opening opportunities existence of CCN conducted by KONI officials or officials of the parent organization and interim offices in the Government". 4) that in the description of article 40 of Act No. 3 of 2005 about National Keolahragaan System mentioned: "what is meant by structural position in these terms is a term which indicates the duties, responsibilities, authority, and rights of a civil servant and military in order to lead a unit of organization of State or Government, among others, the Office of Echelon in a Department or agency of Government nondepartemen". "What is meant by these terms in public office is an Office that is obtained through a process of direct election by the people or through the election of representatives of the Republic of Indonesia, among others, President/Vice President and members of the Cabinet, the Governor/Deputy Governor, Regent/Vice Regent, the Mayor/Deputy Mayor, Member of PARLIAMENT, Member of DPD RI, members of PARLIAMENT, judges, members of the judicial Commission, Assistant , and Commander of the INDONESIAN ARMED FORCES ". 70 5). That the position of Member of PARLIAMENT as public office obtained through a process of direct election by the people is also provided for in the provisions of article 52 Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Regional Representatives who mentions, "Provincial political party members made up of election participants were selected based on the results of the elections". 6). That the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System is also in line with the provisions of article 104 Para (1) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, the regional representative Council, and the Regional Representatives, which reads as follows: "members of the DPR, DPD, dan DPRD Provincial, Kabupaten/Kota must not be used as : a. other State officials; b. judges on judicial bodies; c. civil servants, members of the TNI/Polri, officials at the State-owned enterprises, regional and/or other agencies that the budget is sourced from STATE BUDGET/GRANT ". The foregoing prohibitions is a duplicate post of, among others, to members of the Provincial public service in his other position among others on other agency budget is sourced from STATE BUDGET/BUDGETS. 7.) that in terms of article 4 of Presidential Decree Number 72 in 2001 of the National Sports Committee of Indonesia mentioned that: "the budget to carry out the activities referred to in article 2 and article 3, may be obtained from the help of the Central Government budget and local community funds, obtained lawfully, and the help of other parties that do not bind". Thus it is clear that one of the sources of funding on a KONI is from the Central Government budget and local governments. Therefore, these provisions in accordance with the provisions of article 104 Para (1) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, the Council of Regional Representatives and 71 Representatives Area which States prohibit members from the institution for the remaining term on the other agency budget is sourced from STATE BUDGET/BUDGETS. One of these other agencies is KONI. 8) that the provisions on prohibition and interim term as has been described above are regulated in Article 54 paragraph (1) of Act No. 32 of 2004 on local governance that reads: "members of the DPRD and interim positions as prohibited: a. any other State officials; b. judges on judicial bodies; c. civil servants, members of the TNI/Polri, officials at the State-owned enterprises, regional and/or other agencies that the budget is sourced from STATE BUDGET/GRANT ". From the provisions of article are arranged that members of PARLIAMENT barred from sitting positions as officers in the Agency's budget is predicated on a BUDGET/BUDGETS. 9) That serves as the Provincial Member of the elements Organizer in the administration area of the province as stipulated in article 60 of Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Regional Representatives that reads, "Provincial institution representatives area which serves as the regional government institutions of the province". In the running of local governance, a member of the Provincial Authority has a duty and as provided for in article 62 paragraph (1) of Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Regional Representatives that reads: "Provincial has duties and authorities: a. establish local regulations are discussed with the Governor to get oersetujuan together; b. assign BUDGETS along with the Governor; 72 c. carry out surveillance against the implementation of local regulations and other legislation, the decision of the Governor, BUDGETS, policies, local governments in carrying out the program of regional development, and cooperation in the area of internasonal; d. proposed appointment and dismissal of the Governor/Deputy Governor to the President through the Secretary of the Interior; e. provide opinion and consideration to the regional Government of the province against the plan of international treaties that concern the interests of the region; f. report a description of accountability in the implementation of decentralised tasks Governor ". From the provision of article on the letter b, set about the task and powers of Provincial BUDGETS set along with the Governor and the letter c on the functions of supervision, it is increasingly clear the position of the members of the Provincial budget and oversight function. When associated with the provisions of article 4 of Presidential Decree Number 72 in 2001 of the National Sports Committee of Indonesia which stated that: "the budget to carry out the activities referred to in article 2 and article 3, may be obtained from the help of the Central Government budget and local community funds, obtained lawfully, and the help of other parties that do not bind", then this would be a contradiction and conflict of interest whereby on the one hand as a determinant and supervisor BUDGETS but on the other hand as a recipient of a GRANT the control mechanisms does not run in accordance with the principles of transparency and accountability. 10). That in article 104 Para (2) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Regional Representatives that reads, "a member of the MPR, DPR, DPD, dan DPRD Provincial, Kabupaten/Kota may not do the job as acting structural on private education institutions, public accountants, consultants, advocate/lawyer, notary, physician practice and 73


another job that has to do with the duties, authority, and as a member of the MPR, DPR, DPD, dan DPRD, Provincial district/city ". Of such provision is obviously prohibitive for members of Provincial PARLIAMENT to do the job that has to do with the tasks and authority as a member of Provincial PARLIAMENT as stated in Article 62 paragraph (1) of Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Representatives of the area above. The provisions concerning the ban on doing other work-related tasks, authority and rights of the Members of PARLIAMENT are regulated in Article 54 paragraph (2) of Act No. 32 of 2004 on local governance that reads, "members of PARLIAMENT barred from doing work as a structural officials on private education institutions, public accountants, consultants, advocate/lawyer, notary, physician practices and other work related to the tasks, the authority , and as a member of PARLIAMENT ". The provisions of article underscores the prohibition to members of PARLIAMENT to do the job that has to do with the tasks, authority and privileges as a member of PARLIAMENT. 11). Next in the provisions of article 104 Para (4) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, regional representative Council and Regional Representatives mentioned that, "the members of the MPR, DPR, DPD, dan DPRD Provincial, Kabupaten/Kota that do the work referred to in subsection (2) is obligated to release the job for being a member of the MPR, DPR, DPD, Provincial , and REGIONAL district/city ". These terms explain to members of the DPRD if doing other work that has to do with the duties, authority, and as a member of the MPR, DPR, DPD, dan DPRD Provincial, Kabupaten/Kota is obliged to relinquish the job. 74.12). Based on the whole of the above description, it can be concluded that the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System has been aligned and no contradiction with laws that specifically regulate the position of Member of PARLIAMENT i.e. Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, the regional representative Council, and the House of representatives and regional law Number 32 of 2004 concerning Regional Government. 13). That the provisions on the position of Member of PARLIAMENT barred from sitting position on other agencies that the budget is predicated on a BUDGET/BUDGETS and the prohibition to members of PARLIAMENT do other work related to the tasks, authority and privileges as members of the DPRD is to place members of the DPRD as organizer of local governance which have the functions of the budget and oversight so that it can carry out the control mechanism. Thereby, the provisions of article 40 of Act No. 3 of 2005 about National Keolahragaan System does not conflict with article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945, even in line with the provisions of article 28J paragraph (2) of the Constitution of the Republic of Indonesia in 1945 that read, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just guidance in accordance with considerations of a moral, religious values, security and public order in a democratic society ". 14). That is based on the propositions above, PARLIAMENT may invoke the Tribunal Judges the Constitution give amar verdict as follows: 1. The applicant Asserts a quo has no legal position (legal standing), so that the application for a quo must be declared unacceptable (niet ontvankelijk verklaard). 75 2. Reject the application for a quo for entirely or at least petition aquo not acceptable 3. Declared article 40 Act No. 3 of 2005 about National Keolahragaan System does not conflict with article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution. If the Tribunal Judges the Constitution holds, we please the ruling seadil-fair (ex aequo et bono). Additional description of the HOUSE • That BILL the National Keolahragaan System was not made hastily already through the discussion in the HOUSE of REPRESENTATIVES Commission VI and the Government is also preparing a BILL like that. Because the HOUSE was born in the era of reform, then the main elements for drafting the law embraced the views or the paradigm of how we appreciate the reality-the reality of society, with keolahragaan field re-arrange and other areas. Opposite of these things, along with Government REPRESENTATIVES drafting and discussing draft legislation. • That article 40 of the ACT, it was decided in the meeting SKN Panja on 29 August 2005, which is one article which is quite a lot. Before the HOUSE of REPRESENTATIVES, it was decided to invite the Chairman of KONI who ruled at that time by Mr. Agum Gumelar, regarding the status of the KONI in law SKN? Would need to be listed in capital letters or not? and Mr. Agum Gumelar as a reformist says, submitted to the HOUSE of REPRESENTATIVES as a representative of the people and also to the Government to decide what's best for KONI. Sports cannot be done entirely by the Government, must be opened with the participation of the community. Therefore, there is a principle in law Keolahragaan that is increasing the role of community empowerment. It corresponds to the HOUSE thinking that is how to combine or synergy between Government's role with the role of the community. • That KONI is "creatures" special, he is an NGO (community), but the Chairman of the General and its administrator is designated by Presidential Decree No. and appointed by State officials, as well as funding from the STATE BUDGET, with the allocation of funds about 30 billion and even if completed its use almost 80 billion. The existence of NGOS who use the NATIONAL BUDGET, the HOUSE and 76 then Government needs to organize it. One of the spirit of reform that has always held that good governance is good governance, where there is transparency, efficiency, effectiveness, and accountability. • That based on the experience of Panja during a visit to the area, can never be met with Chairman of KONI in areas ruled by the Governors at the time were always ex officio status, which can be found the Chairman was simply unable to take important policy. • That there are meetings in Tractate Chairman of KONI Province disputed between the two parties, especially facing elections, and it was a very bad experience. In the area there is the Chairman of KONI was led by one of the officials from the party and hard-once a meeting. Finally after the meeting concludes and Panja which is quite a lot and long as well as hearing from the Government, then taken some decisions which were proposed so that public officials not to enter into a sysop KONI, and most insist thus comes from the House. • That political people themselves do not want to make the National Sports Committee as a tool, and should be omitted from politics. Therefore, it is in the ACT of SKN found some elements of reform, namely, first, the title of the BILL was changed to the national Keolahragaan System and answer the insurer was Minister of sports wing. That is, everywhere, in the Sports Department, at school, and in society, but the highest person in charge is the Minister in charge of the sport. Second, it appears the term pengolahraga next to the sportsman. Third, the question of the arrangements Committee Sports Indonesia separated from national sports Committee, which previously fused. Fourth, setting a national sport that is not structured in cascading into the area. That is, the National Sports Committee is not structured into the area, there is no relationship with the Centre in stuktural but only koordinatif. The fifth, setting the criteria of the National Sports Committee of the Executive Board must be independent, not tied to the structural position and activity of public office. Sixth, setting about the obligations of the Government and the local Government of helping the organization or agency that handles keolahragaan in the area. Seventh, kesengketaan mechanism keolahragaan arrangement. Eighth, the existence of the liability and responsibility of the Government to perform the allocation keolahragaan through STATE BUDGET or BUDGETS. 77


• That the restrictions in article 40 of the ACT is not discrimination but the SKN regulation or setting. So there is no discrimination against human rights, if you want to help the sport of disilahkan, does not need to be a sysop. In order for the sport to care for people who have kompentensi, interest, commitment, and enough time. Indeed in the debate in the area it's hard to find people as desired. However, as evidenced in these areas have started to grow, have started to born Chairman-Chairman of KONI which are not ex officio. Therefore, the DPR and the Government agree, the so-called "red plates", those public officials, not to mention taking care of national sports Committee. • That Panja thinking at that time, the entire Executive Board up to sysops who became Chairman of the KONI public officials then if he can't sign by itself, and implied that the Chairman of the parent sports also should not be a sysop if public officials, because it would be ex officio Trustees KONI, unless not wanting to be a sysop KONI. Thus, there is absolutely no discrimination, of which there are only settings only. [2.5] considering that the relevant parties of the National Sports Committee of Indonesia (KONI) had testified in the trial on 8 January 2008, describing substantially as follows: • That the sports community is coordinated by KONI is very proud to have been the birth of Act No. 3 of 2005 about National Keolahragaan System, it is recognized, because of the existence of such laws is very supportive of the advancement of sport in Indonesia that serve as the legal umbrella. • That in accordance with the law, the society formed the parent sport, which later formed the KONI. Thus KONI was as coordinator of parent-parent sports. • That the legislation by presenting a quo, at the 10th National Congress in 2005, had decided a few things on the bottom line, among others, recommend to investigate more deeply to the existence of article 40 of Act No. 3 of 2005 about National Keolahragaan System, and adjust the articles of Association and bylaws KONI in accordance with Act No. 3 of 2005. 78 • incidence study recommendations That article 40, because there was a tingle of article 40, any limitations in terms of a public officer to serve as Chairman of KONI previously no restrictions. The recommendations arose because in article 36 Act No. 3 of 2005 about the system of national Keolahragaan, parent branch of sport and KONI are independent. However, in article 40 the only parent, whereas KONI sport, thus further recommendations to the community who feel aggrieved to test them through existing mechanisms. [2.6] considering that the applicant and the Government gave a written conclusion that each received at the Registrar of the Court on 8 February 2008 and on 15 February 2008, substantially fixed on their respective evidence if possible, the more attached in the docket; [1.7] considering that to shorten the description of this ruling, everything that happened dipersidangan was appointed in the News Events of the trial, and it is a unity that can not be separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that before giving consideration towards things of the Number 27/PUU-V/2007, in advance of the Constitutional Court (hereinafter the Court) considers the need to explain that based on statutes, Court Number URTAP.MK/46/2007 December 10, 2007 has been designated the merger proceeding Number 27/PUU-V/2007 with the case number 30/PUU-V/2007, because the material charge plea on two of the same matter namely testing article 40 Act No. 3 of 2005 about National Keolahragaan System (hereinafter referred to as the ACT of SKN) against The Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution); [3.2] considering that through his letter dated 22 January 2008, the applicant in the case number 30/PUU-V/2007 apply to unplug (pull back) their petition. The application for withdrawal of the 79 re-affirmed by the applicant in the proceedings on 31 January 2008. Against the withdrawal of the petition, the Court then by Ordinance No. 15/URTAP.MK/2008 dated 31 January 2008 has been granted the petition for a recall petition for quo with all its legal consequences, since the recall petition a quo is not contrary to the Act. Thus, the next will be considered in this ruling are just propositions of the applicant in the case Number 27/PUU-V/2007; [3.3] considering that before considering any further application for Staple a quo, the Court will first consider the following things: 1. Whether the Court is authorized to inspect, judge, and break the petition a quo; 2. Whether the applicant has the legal position (legal standing) to apply for a quo to the Court; Against both, the Court held as follows: the authority of the Court [3.4] considering that the subject authority of the Court, article 24C paragraph (1) of the Constitution stated the court authorities, among other things, to adjudicate on the first and last level that an award is final to examine legislation against the Constitution. That provision reiterated in article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (hereinafter referred to as ACT MK) juncto article 12 paragraph (1) of Act No. 4 of 2004 about the Power of Justice (No. 8 of 2004 LNRI, TLNRI Number 4358); [3.5] considering that the object of the petition filed by the Applicant a quo is testing law, in casu article 40 of ACT SKN promulgated on 23 September 2005 against the Constitution. Therefore, the Court is authorized to inspect, judge, and break the petition a quo; 80 the position of law (Legal Standing) the applicant [3.6] considering that according to the provisions of article 51 paragraph (1) of the ACT, the COURT may apply for a testing legislation against the Constitution is the party that assumes the rights and/or authority konstitusionalnya harmed by the enactment of the Act, i.e. a) individual citizens of Indonesia (including groups of people having the same interests); b) customary law community unity along is 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) public or private legal entities; or d) State agencies; [3.7] Whereas until now the Court held that the loss of rights and/or constitutional authority 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 losses must be the specific constitutional (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 the constitutional losses as postulated would not or is no longer the case. [3.8] Considering that in order for a person or a party may be accepted as an applicant in the case of testing legislation against the Constitution, according to the provisions of article 51 paragraph (1) of the ACT the COURT, person or party in question shall be: a. explain credentials, i.e., whether as individual citizens of Indonesia, the unity of Community law, the law of Agency, or State agencies; 81


b. loss of rights and/or authority of konstitusionalnya, in the qualifications referred to in letter a, as a result of the enactment of laws that petitioned testing; [3.9] considering that based on explanation against the provisions of article 51 paragraph (1) of the ACT the COURT and terms of the loss of rights and/or constitutional authority as set forth above, then the Court will consider the position of the law (legal standing) of the applicant in accordance with the applicant's description in his petition with relevant evidence; [3.10] considering that the claimant substantially argued that the provisions of article 40 of the ACT has been a detriment to SKN constitutional rights of the applicant, according to the applicant the disadvantages are: a) that article 40 of the ACT has been memasung SKN public officials (the applicant) who want to contribute their energy and mind for the progress of the sports world. b) that article 40 of the ACT is very discriminatory and SKN contrary to Article 28I paragraph (2) of the Constitution, because it prohibits public officials participate actively in promoting the sports world because it feared that the abuse of Office. c) that bans public officials became caretaker KONI is not only provided for in article 40 of the ACT a quo, but also Government Regulation number 16 in 2007 about the conduct of the Sports Article 56 which States:-subsection (1), "National Sports Committee of the Executive Board, the Committee of sports of the province, kabupaten/kota Sports Committee are independent and not tied to the activities of the Office of structural and public office". -Subsection (2), "in the exercise of its duties, obligations and Trustees referred to in subsection (1) must be free from the influence of intervention from any party to maintain neutrality and guarantee keprofesionalan management keolahragaan". -Paragraph (3), "the Superintendent referred to in subsection (1) are prohibited from holding an Office which indicates the duties, responsibilities, authority, and rights as a civil servant and military in order to lead an organization of State or Government, among others, the Office of Echelon in a Department or a non government institutions Department". 82-subsection (4), "the Superintendent referred to in subsection (1) are prohibited from holding a public office that is obtained through a process of direct election by the people or through the election of representatives in Indonesia, among others, President/Vice President and members of the Cabinet, the Governor/Deputy Governor, Regent/Vice Regent, the Mayor/Deputy Mayor, Member of PARLIAMENT, members of PARLIAMENT, judges, members of the Judicial Commission, Assistant, and Commander of the INDONESIAN ARMED FORCES". d) that Article 123 government regulation number 16 in 2007 stating:-paragraph (6), "in the event of a breach of article 56 (Government Regulation number 16 in 2007 about the Organization of sports), the Minister may facilitate the election of a new Executive Board are invited, to compliance with the conditions of the sports organizations and laws-invitation". -Subsection (7), "in terms of the election of the Executive Board as referred to in this paragraph are not held, the Minister may recommend to the parties to postpone the funding related to the channelling of funds to the National Sports Committee, the Committee on the exercise of the provincial sports committees, district/city". e) That article 40 of the ACT a quo and Government Regulation number 16 of 2007 very discriminatory, as sports administrators (cabor) are not prohibited from replacing by public officials. For example the BPS (Union of Badminton Throughout Indonesia) assumed by the Governor while still serving as the Governor of DKI Jakarta. Bonds of Pencak Silat Throughout Indonesia (IPSI) East Java ruled by Soekarwo Secretary of East Java and others. This shows how article 40 of ACT a quo was made without regard for the principle of the philosophy of making the legislation should reflect the aspirations of the community. f) that article 40 of the ACT a quo if associated with human rights thus contrary to Article 3 of Act No. 39 of 1999 on human rights which States: • paragraph 1, "every person is born free with dignity and human dignity, and equal and endowed with reason and conscience to live community, nation and State in the spirit of brotherhood". 83 • verse 2, "everyone is entitled to recognition, guarantees, protection and fair legal treatment as well as legal certainty and equal treatment before the law". • Paragraph 3, "everyone is entitled to the protection of human rights and fundamental human freedoms, without any discrimination". g) that the applicant Saleh Ismail Mukadar, sh., the individual is a citizen of Indonesia who served as General Chairman of the KONI Surabaya and also as a public officer as Chairman of the Commission E DPRD Jawa Timur. The applicant considers the rights of konstitusionalnya given by article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution harmed by the enactment of article 40 of the ACT on the prohibition SKN for public officials to be the caretaker of the KONI; [3.11] considering that thus according to the Court, the applicant has the legal position (legal standing) to apply for a quo, so that the subject matter of the petition needs to be considered further; The subject matter of the petition [3.12] considering that the Principal applicant's Application is about the constitutionality of article 40 of the ACT the Applicant according to SKN contrary to the applicant's constitutional rights that are guaranteed by article 28C paragraph (2), section 28D subsection (1), and article 28I paragraph (2) of the Constitution. Article 40 the SKN ACT reads as follows: National Sports Committee, Executive Board, province of Sports Committee, Sports Committee of kabupaten/kota are independent and not tied to the activities of the Office of structural and public office ". According to the applicant, article 40 of the ACT the SKN, contrary to the Constitution, namely: • Article 28C paragraph (2), "everyone has the right to promote himself in the fight for the right collectively to build community, nation, and the country". • Article 28D paragraph (1), "everyone is entitled to recognition, guarantees, protection and legal certainty are fair, as well as equal treatment before the law." • Article 28I paragraph (2), "everyone has the right to be free from discriminatory treatment which is 84 on the basis of any kind and is entitled to protection against discriminatory treatment." [3.13] considering that with the breakdown of the application and the applicant's information as mentioned above, the question of law to be considered by the Court was whether article 40 of ACT SKN contrary to Article 28C paragraph (2), section 28D subsection (1), and article 28I paragraph (2) of the Constitution, as postulated the applicant; [3.14] considering that in considering the application, in addition to the staple have examined the evidence proposed writing letters/Applicant, the Court has also heard of witnesses and oral description and/or read the affidavits of experts proposed by the applicant, namely, the witness named Herman Rifai, Denny Trisyanto, and Ismail, as well as the expert named Dr. John Pieris, S.H., M.H., Prof. Dr. Satya Arinanto , S.H., M.H., and Hesti Armiwulan, S.H., M.H., the more loaded on the Sat Matters, which in anyway explains as follows: the applicant's Witnesses Herman Rifai That witnesses, as Vice Chairman of the DPRD, in 2000 was appointed Chairman of the Executive Board Branch (Pengcab) Surabaya IPSI, with 36 members of the martial arts college. The beginning of the first witness, the witness served as gathering friends administrators, it turns out that time IPSI has no equipment silat at all. Because publics pencak silat witness is seen as a character (public figure), in this case as the public officials (Vice Chairman of the DPRD), they hope that a witness can have equipment for the benefit of the organization. According to witnesses, the experience of the Office as Chairman of the IPSI Pengcab, on the one hand do not interfere with the execution of the duties as Vice Chairman of the DPRD Surabaya, on the other hand, since his position thus facilitate in providing support for the Organization, namely IPSI may ask to some entrepreneurs to help procure equipment of pencak silat needed IPSI. Witness Applicant witness Trisyanto That Denny's dabbling in the sport of archery began in 1980 and the witnesses deal with the national team in 1991 at the Manila SEA Games winning 85


General, similarly in 2001 in Malaysia also public champion. That want to convey is that we witness in the area must have a "father", since the end of the construction of the sport actually is in the area. We're just athletes, so if talk about laws, systems, then that can reach targets Government later are athletes. The bottom line is it needs to be synergy between the Central Government and regions that constitute the line of command, in which the Chairman of KONI Area was the Governor, the Mayor, as the length of the hand from the Government, given that our "father" in the area was the Governor, the Mayor, the Regent. While Mr. Affairs, is our father when we become on national athletes nationwide. Therefore, no prohibition for Governors, Regents, mayors to become Chairman of KONI in the area. The applicant's witness Ishmael • that by the time the witness held Echelon IV as head of sub-division of the Repertory has a duty to menverifikasi disbursement budget of all assets that are in Surabaya City Government including budget KONI. Witnesses need to explain, that budget KONI listed in the budgeting system that Supercede-kan, then technically operational follow-up published Decree of the Mayor for periodic quarterly disbursement of 1 up to 4. During the validity period of that rule, the executor witness dilutes the whole assistance for KONI never found there are occurrences that KONI asked that facilitated, and witnesses to perform appropriate rule. • That by the time witnesses have retired in 2007 and menjelangnya, the witness served as Treasurer of KONI. Early reinstated, the Chairman has published one Ordinance the rules, how to use and empowers the budget KONI, then how to divide the budget it needs keolahragaan KONI, 75% was delivered to the interests of the sport, 25% for the operational interests of the KONI to support activities not ter-cover in the sport, and costs of operations, in which the entire apparatus of the clerk at the KONI get reward or money task , but the Chairman didn't want to accept, that is, the Chairman did not want to accept the money gained as a facility at KONI. The Applicant's Expert Dr. John Pieris, S.H., MS. 86 • that the formulation of article 40 of the ACT and the explanation can be described SKN that the phrase "independent nature" applies only to the National Sports Committee of the Executive Board. Thus it can be concluded that the National Sports Committee of the Executive Board are independent. Article 40 of the ACT and its explanation does not formulate a SKN Organisation National Sports Committee are independent. In the context of free from the influence and intervention of any party. Associated with it in Article 36 paragraph (1) of the ACT SKN formulated, "the parent organization of the sport as stipulated in article 35 forms a national sports Committee". In the Explanation of article 36 paragraph (1), no explanation of the formula phrase self-reliance. Then in Article 36 paragraph (3) of the ACT SKN formulated, "the parent national sports organizations and national sports Committee as referred to in paragraph (1) are independent", according to expert opinion, because there is no explanation in the formulation of words about the parent organization and independence of the National Sports Committee. Then the creation of legislation in this House and the President understand that the parent organization and national sports Committee as an organization that is independent. • That the difference between article 40 with the explanation to article 36 is, article 40 with Explanation asserts that the National Sports Committee of the Executive Board are independent, whereas Article 36 and its Explanation does not explain that the parent national sports organization Executive Board are independent. Thus, it cannot be denied by the birth of the provision in article 40 referred to, then the haze had occurred in interpret and understand the legal norms that are interlinked, even though it contains content, substance, the soul, and the material of the same charge. • That the appearance of article 40 accompanied the explanation cannot be accounted for from the aspect of the theory of legislation and can not be justified legally. Thus it must be annulled by law also annulled by the justice. Associated with such matters can be explained the provisions of article 40 and its explanation is not appropriate and even contrary to the principles of the formation of the material principles and legislation as fundamental norms in the context of both the State of law perspective. Article 40 and its explanation is also very contrary to human rights as set forth in article 87 28C subsection (2), section 28D subsection (1), article 28I paragraph (2), article 28I paragraph (5), and article 28J subsection (1) and paragraph (2) and therefore judging from the logic of the law, article 40 a quo is also contrary to article 1 paragraph (3) of the Constitution, in other words Article 40 and its explanation is contrary to the principle of State of law and the doctrine of constitutionalism. The Applicant's Expert Prof. Dr. Satya Arinanto, S.H., M.H. • That historically formed by KONI society (society) rather than by the State. But in a further development based on the decision letter of President Sukarno, the number 143a and 156a change KONI from society to the state. • That the politics of law ACT SKN is pulling everything into the hands of the country or state, as evidenced by Article 32 paragraph (1) that says, "the national keolahragaan system management is the responsibility of the Minister". Relates to the national keolahragaan system can be seen the definition in article 1 paragraph (3) of the ACT SKN. • That the debate on article 40 and in the same chapter also with some other article, there are indeed some problems should also be seen in the historical context. The existence of a prohibition such as that referred to in the application for the structural and held the position of public office to be the caretaker Committee on sports, both at the State level or local level, but on the other hand there is no such prohibition, in article 36, although in fact it is not appropriate, because in article 36 paragraph (3) is there an explanation that it is actually the parent organization of the sports National Sports Committee is independent. • That in order the construction law, if the Court held that article 40 of the ACT does not conflict with the SKN Constitution 1945, then there should be a synchronization, because now it's forbidden only sysop KONI while others not banned, like to be the parent organization of sports administrators are not prohibited. If it is logically due to possibility of disturbance or the possibility of the existence of a potential disruption of concentration and time, then certainly it applies 88 for all structural position or public office. Thus, the expert view on national legal systems there are partial interests. This sport is just part of the interests of the national law. So experts expect the Court to set the record straight in the context of the development of national laws. Expert Applicant Hesti Armiwulan, S.H., M.H. • That paying attention to the substance of article 40 of the ACT SKN basically wants to give the ban to public officials to be the caretaker of the KONI. Substantially from the existing constitutional rights in Article 28I paragraph (2) of the Constitution, which clearly determined that everyone is free from discriminatory treatment on the basis of any sort of the bottom line and are entitled to the protection of constitutional rights, which is the entire citizens of INDONESIA, then indeed if note the substance of article 40 of the ACT the SKN impressed there is discriminatory, because it is seen in the Article 28I paragraph (5) of the Constitution clearly mentions , that to uphold, protect HUMAN RIGHTS in accordance with the principles of a democratic State then the implementation must be guaranteed HUMAN RIGHTS, set up, and poured in laws-invitation. Two of the provisions of article 28I paragraph (2) and article 28I paragraph (5) of the Constitution ACT clearly SKN perceived in substance does not guarantee the existence of a sense of Justice and discriminatory. • That the substance of article 40 of the ACT means giving a SKN assumption that all are not prohibited by the law may mean. If the note to article 40 of the ACT prohibits public officials for SKN became the caretaker of the KONI, but there are some other laws that apparently did not give the ban to public officials to be a sysop. This shows that there is proof that the ACT does not guarantee the existence of SKN sense of Justice and discriminatory from the side with regard to the headquarters. For its sports fields are also apparently got the treatment of discrimination, because it doesn't get the attention of officials where to exercise it, the officials should not be administrators, but for the others. • That in the terminology of HAM is known the existence of negative rights, namely the right to mention that the authority of the State, government apparatus as much as 89


may be reduced even dinisbikan to satisfy civil and political rights, and Indonesia has already ratified the Covenant on Civil and political rights by law number 11 of 2005. Satisfy the civil rights politics when then State or Government intervention for the fulfilment of civil and political rights. Does it mean that if this relation the fulfillment of civil rights and political rights are indeed right. But if the economic rights in the terminology of social culture known the existence of what is called with the right positive or positive right, that the right economic, social, cultural of these guaranteed can be fulfilled if the intervention or the role of the State or the Government that's getting bigger. The greater intervention of the State (Government) then it would more likely satisfy economic, social and cultural rights. • That the question of sports included in the capacity or in the realm of economic, social, cultural. That is, that it is precisely in this country (Government) intervention should be profuse, intervention widely to satisfy economic rights included in the socio-cultural construction in the field of keolahragaan. This is in line with what is set in Article 28I paragraph (4) of the Constitution which specifies that Government has the responsibility and the obligation of not only provide protection, but enforcement is the fulfillment of human rights. That is, the ACT governing keolahragaan SKN to satisfy a sense of Justice for the world keolahragaan in Indonesia then State intervention, government intervention should be a maximum included in it are public officials in the area. They should be responsible for doing the coaching and fulfillment to keolahragaan. So it's pretty obvious if article 40 of ACT SKN in perspective of HUMAN RIGHTS is indeed impressed there is discrimination not only to the headquarters but also to the world of sports. [3.15] considering that the Government has provided oral and written description, the more information is contained in the section on Litigation, which Sits on anyway as follows: • that if a Head region, Deputy Head of the county or the Chairman/Vice Chairman of the DPRD (structural officials or public officials) the Chairman or Core National Sports Committee, certain conflict of interests (conflict of interest), particularly in the planning, discussion, 90 and implementation (operational) budget support keolahragaan. In other words it is extremely unlikely a structural or public officials who discuss and determine the magnitude of the budget allocation of keolahragaan but also as a user of the budget in his capacity as Chairman of the Executive Board or the National Sports Committee Core; • That in order to ensure transparency and accountability in the preparation and use of budget keolahragaan then required is not setting public officials/officers for assuming the post of Chairman of the structural Committee Sports national and provincial sports Committee and district/city but rather setting a firm and clear about the system of the separation of responsibilities between compilers and users budget. • That any person (including the applicant) to be able to devote, engaged, and contribute thoughts or his energies to the advancement of the sport through a variety of means and channels available. For example, in its capacity as a public official/structural officials (such as the applicants) can still provide ease/facilities in the provision of sports facilities and infrastructure, assist and fight for budget allocated keolahragaan in the discussion of BUDGETS, become donors remain on one sport, and so on. In other words the participation of every citizen to participate in furthering the sport doesn't have to be the Chairman of the Executive Board or Committee national sports, the Sports Committee of the province, or district/city Sports Committee. • That the provision of article 40 a quo thus has given assurances over the creation of legal certainty (rechtszekerheid), and a sense of Justice in society, especially in giving equal opportunity to the Community (everybody) are not as a public official or officials, and hence the structural provisions of a quo is not contrary to article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution , and is not detrimental to the rights and/or constitutional authority to the applicant. [3.16] considering that in addition, the Government also proposed the witnesses and expert witnesses, namely named Drs. Aristo Munandar, h. Mahfouz, S.H., and Gus Irawan, S.E., as well as the experts named Prof. Dr. Harzuki, S.H., M.H., Prof. Dr. 91 Toho Cholik Muttohir, M.A., Ph.d., Prof. a. Mansyur Effendi, Drs. Ramli Puratmaja, m. Si., Prof. Dr. Rusli Lutan, that his statement was heard by the Court, the more information is contained in the section on Litigation, Sitting on the point as follows: Government Witnesses Drs. Aristo Munandar • that the witness served as head and also given positions as Chairman of KONI Subdistrict. Since the year 2000 has served as the Regent of West Sumatra Province and Agam based on Deliberation Areas KONI was appointed Chairman of KONI District Agam and last on 11 and 12 December 2007 on Musda KONI in Agam. Its administrator is no longer ruled by public officials and officials of the structural, in accordance with the provisions of article 40 of the ACT SKN. • Regulatory ACT that before the SKN is present, there is a hope and desire of the public lover of sports and the parent-the parent organization that assumed by public officials or officials of a structural, as related to how provision of facilities and support. But those problems have been answered by SKN ACT particularly article 12 paragraph (1), article 13, article 16, concerning the form of the role of Government. • That as policymakers, Government does not hand disowned, remain responsible for the advances in the development of the sport. Then in implementing that policy on KONI. Thus, it is precisely what the ACT implemented SKN. Government Witness H. Mahfouz, S.H. • That relates to the implementation of the ACT and REGULATION Number SKN 16 2007, the witness made a statement to stop, as caretaker of the KONI, because what is already specified in article 40 and in PP number 16 of 2007 Article 56 expressly already set up that public officials or officials of a structural should not be an sysop KONI, and are also bound by the oath of Office and duties as head of the region and Deputy Head of the region have to obey and execute the provisions of the regulations of the legislation 92, so that there are no other words unless the witness has to carry out the provisions in question; • That relates to a member of PARLIAMENT, in the Act No. 32 of 2004 on local governance, article 54 paragraph (1) stated, "members of PARLIAMENT barred from sitting positions as State officials, a. b. judges on judicial, c. civil servants, members of the INDONESIAN ARMED FORCES, employees at State-owned enterprises, local-owned enterprises or other agencies that the budget is sourced from STATE BUDGET and GRANT". The issue is regarding the circle inside it's own stewardship sometimes ask public officials or structural officials to remain in his position as Chairman; • That regarding budgeting KONI after no longer duplicate assumed by public officials or officials of structural does not matter, for having now held by private budgets KONI be 5 billion, which was originally only 2.6 billion. Therefore, there is no relation of Executive Board the KONI public officials not public officials. With the ACT of SKN and PP number 16 of 2007 is truly a blessing for us (especially the witnesses). Because as such witnesses as public officials can focus a number of obligations that must be implemented by local authorities together with the PARLIAMENT. Government witness Gus Dunlap, s. E • that to achieve the best results, the Executive Board and management want the SKN KONI independently professional focus and thus independent. Independent escort referred to then there should be a pemisahaan function, to avoid a conflict of interest at the same time, that there are at least 3 functions in the ACT of SKN, first planning and budget. The second third, and organizing surveillance. Governments, Governors, mayors and Regents remains on a position with the functions and interests is so great, that is the responsibility of the Government is in order, the sports achievements coaching infrastructure with funding by the Government, and respect for the achievements of sports as well as by the Government. So that the function of planning and budget are in the Government. While the organization is on KONI should not be done by the Government. Likewise with pengawasannya conducted by Government, 93


and also by the HOUSE of REPRESENTATIVES, PARLIAMENT. • That an organization should indeed there is a separation of functions, will become independent if not all functions there are in the hands of a body of one person. A Government expert, Prof. Dr. Harzuki, S.H., M.H. • That KONI is an agency that organizes keolahragaan in Indonesia. Because there are rules of the Olympic Charter the Olympic Charter or so government involvement is limited. These restrictions not only by the Government or legislation alone, but there are also specific restrictions of the IOC to government officials, namely among others mentioned in the Olympic Charter Article 29 which says, that Governments or other public authorities so as not to be appointed as a member of the Indonesia Olympic Committee (KOI) or National Olympic Committe. Except if it is asked or there is a policy of the leadership of the IOC itself. • That after Sri Sultan Hamengkubuwono IX, the late Chairman of KONI, KONI and KOI made some sort of two sides of the coin, it means the parent directly on KONI organizations that carry out activities in the country and the KOI only related to the IOC or International Olympic Committe which has basic budget called the Olympic Charter. So in its development are indeed we still hold on to those two things, namely the KOI and KONI, KONI where it domestically and act to invigorate the parent organization connected with the Government, but KOI should not touch or may not be directly related to the Government, could work together should not associate yourself with the Government. A Government expert Prof. Dr. Toho Cholik Muttohir, M.A., Ph.d. • That the intention of the drafting of the ACT SKN indeed aspirational, adaptis, and reformatif. The ACT of SKN is a foundation and starting point of the construction and planning of national keolahragaan more advanced with attention to the various changes that occur, both in the national and international level. Things that are regulated in the ACT on the basis of observing the SKN decentralization, autonomy, community participation, keprofesionalan, partnership, transparency, and accountability. System management of the construction and development of national keolahragaan 94 arranged with the spirit of the policy autonomy of the region, in order to realize the ability of regions and communities that are able to develop their activities independently and keolahragaan. Development of keolahragaan can no longer be addressed in sekadarnya but should be handled in a professional manner. • That with the enactment of article 40 of the ACT, the national keolahragaan SKN will optimistically ahead because the management of the sports will be carried out professionally in accordance with the demands of the development of the sport that demands the existence of a management system more productive, effective, efficient, and transparency and accountability. Sports in the future is predicted to increasingly complex and complicated so requires a systemic management and professionals as well as supported by the technology with the overall setting. • That article 40 of the ACT in accordance with the demands of the SKN sports management oriented to the future and the progress of the sport. It is based on the consideration that, future keolahragaan management should be handled independently and in a sense is free from the influence and intervention of the interests of any party including educators to maintain neutrality and guarantee keprofesionalan management. Article 40 should still be implemented, because there is no aggrieved parties who, because of this article in fact does not restrict the rights of public officials or officials of the structural opportunities or even provide ample opportunity for anyone who wishes to advance the sport through the stewardship of the National Sports Committee, the Committee on the exercise of the provincial and kabupaten/kota Sports Committee. Article 40 of the ACT SKN have been considering the workload includes a lot of work and service to the community to do structural officials or public officials that require greater attention in the present and the future. When structural officials and public officials and interim positions as Chairman of the Sports Committee, then it will give rise to a conflict of interest and confusion in the system of accountability for the financial administration of the State is supposed to do appropriate financial accountability mechanisms. 95 • that the restrictions in question against the Chairman and administrator of the National Sports Committee, the Committee on the exercise of the province or district/city Sports Committee for not replacing public official or officials may not necessarily be structurally considered as being discriminatory treatment. • That the task of the National Sports Committee at its core is to help Governments, provincial sports Committee helps provincial governments and district/city Sports Committee helps the County Government/cities in the fields of management, coaching, officiating and achievers as well as coordinate parent branches of sport. Whereas the task of the organization is doing a sport coaching and development of sport achievement on one type of branch keolahragaan both on the local level, national and international level. In order that the presence of a parent organization Chairman sports focus to coaching after his branch and minimize the occurrence of CCN, abuse of authority and position as well as exercise the coaching is good governance. KONI has the task of spacious coverage because carriers coordinate sports and has the duty of coaching and development achievements of one type of sports. A Government Expert, Prof. A. Renowned Effendi, SH.MS. • That the ACT of SKN no element of discrimination, that there is a regulation, in order to organize some kind of specification so that people increasingly intensive, serious in many fields that he did. Therefore, if it is we associate also with article 29 paragraph (2) of the Declaration of HUMAN RIGHTS said there "everyone runs the obligations subject to the restrictions set out in the legislation to ensure the recognition, respect of freedom in accordance with the rules of morals, public order, public welfare is fair in the well-being of democratic societies. Thus, any internationally Article 29 paragraph (2) of the Declaration of HUMAN RIGHTS makes it possible to do such limitations. • That the HAM is not completely free with no limits, therefore, in article 73 Law Number 39 of 1999 on HUMAN RIGHTS there are also limitations and prohibitions. Thus, article 40 of the ACT must be attributed to SKN 96 article 3 of ACT SKN, where discrimination is clearly not desirable. Then due to universal HUMAN RIGHTS belong to all of humanity, then we should be able to put proportionally, and don't be too easy we simplify, mensimplikasi or expand the meaning of HUMAN RIGHTS itself. Government experts Drs. Ramli EI Puratmaja, M.Si • that according to the Constitution of one of our goals in the opening of "the intellectual life of the nation and promote the general welfare", formed a Government. The Government of the country we choose is a democratic system of Government. A democratic system of Government's purpose is to advance and have to clean government and nurtures good governance, one of the Government's program to promote good governance is the existence of synergies between Government, the private and the public. It is these roles trying to ACT in the unfolding SKN i.e. There is separation of the powers of Government as a regulator and regulator of the evaluation community through NGOS (KONI) as implementation, so it created the existence of checks and balances, this can be seen in article 40 of the ACT SKN. • That the Office in duplicate on various occasions it has often been in a government program started and gradually, as in Act No. 43 of 1999 as the consummation of the Act No. 8 of 1974, we began to reform the bureaucracy. Activities also included State officials had begun structural officials reduced his role to perangkapan, including kekaryaan-kekaryaan have already begun to be eliminated. The point of it all is that everyone focus on jobs where our goal is to provide the best service to the community proportionally. • That article 40 of the ACT is not the existence of intention conceived SKN discrimination, first, don't close the opportunity to others, but rather the willingness to let officials structurally, the professional and public officials are not bothered with the bustle that means leaving her job in taking care of, appointed caretaker managers of branches one branch for example one example. Second, there is no intervention implementation and evaluation, but the existence of checks and balances. Third, awakened the community partnership as one of the good governance that 97


Currently we develop through give space to others for his role in the matter. A Government expert Prof. Dr. Rusli Lutan  SKN ACT That is in order to answer what model construction keolahragaan suitable for Indonesia. Article 40 of the ACT is very unusual in SKN set order. In chapters V, VI, VII is set up that local governments are responsible in order to formulate public policies to the interpretation and then to the evaluation. Expected quite the KONI back to its original spirit as NGO. • That in conclusion, because the expert himself was co-author of academic texts that SKN ACT, therefore, nothing is harmed by the enactment of the ACT in particular article 40 of ACT SKN SKN set order more solid. Who takes care of what? In a synergy. [3.17] considering that the House of representatives (DPR) has provided oral and written description, more information is contained in the Lawsuit, which Sits on anyway as follows: • that the necessary arrangements for the National Sports Committee of the Executive Board, the Committee of sports and Sports Committee of the province, kabupaten/kota to be self-sustaining (vide Article 36 paragraph (3), article 37, paragraph (2) of article 38 paragraph (2) of the ACT, namely the SKN is free from the influence of any party , aimed at maintaining neutrality and keprofesionalan management keolahragaan. Based on the explanation of article 40 of the ACT SKN which reads, "the definition of independent is free from the influence and intervention of any party to maintain neutrality and guarantee keprofesionalan management keolahragaan". The independence of a national sports Committee/provincial/district/city needed in order to uphold the principles of transparency and accountability which substantially provides the control mechanisms to eliminate the shortcomings and irregularities so that keolahragaan national goals and objectives can be achieved. • That in order to maintain neutrality and keprofesionalan management of keolahragaan needs to be set regarding the management of the Sports Committee in order not to be bound by the activities Office 98 structural and public office as specified in article 40 of the ACT, where the reason SKN/basic conditions seen in the discussion of the Bill on Keolahragaan treatise on the Working Committee meeting (Panja) to 4 on Thursday August 4, 2005, mentioned by the Chairman of the Meeting, Prof. Dr. h. Anwar Arifin appropriate approval/agreement of the meeting suggested that the : "... that could be a sysop KONI and became caretaker of the parent sports that are not public officials, not structural, so sports officials is taken care of with all the time and not opening opportunities existence of CCN conducted by KONI officials or officials of the parent organization and interim offices in the Government". • That the provision of article 40 of the ACT SKN also in line with the provisions of article 104 Para (1) Act No. 22 of 2003 about the arrangement and position of the people's Consultative Assembly, the House of representatives, the regional representative Council, and the Regional Representatives, which reads as follows: "members of the DPR, DPD, dan DPRD Provincial, Kabupaten/Kota must not be concurrently: a. position as officials of other countries; b. judges on judicial bodies; c. civil servants, members of the TNI/Polri, officials at the State-owned enterprises, regional and/or other agencies that the budget is sourced from STATE BUDGET/GRANT ". The foregoing prohibitions is a duplicate post of, among others, to members of the Provincial public service in his other position among others on other agency budget is sourced from STATE BUDGET/BUDGETS. • That the provision regarding the position of Member of PARLIAMENT barred from sitting position on other agency budget is predicated on a BUDGET/BUDGETS and the prohibition to members of PARLIAMENT do other work related to the tasks, authority and privileges as members of the DPRD is to place members of the DPRD as organizer of local governance which have the functions of the budget and oversight so that it can carry out the control mechanism. As such, then the provisions of article 40 of the ACT does not conflict with article SKN 28C subsection (2), 99 Article 28D paragraph (1) and article 28I paragraph (2) of the Constitution, even in line with the provisions of article 28J paragraph (2) of the Constitution reads, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just guidance in accordance with the moral considerations , religious values, security and public order in a democratic society ". [3.18] considering that the Related Party the National Sports Committee of Indonesia (KONI) has provided a description of the dipersidangan, more information is contained in the Lawsuit, which Sits on anyway as follows: • That the sports Community is coordinated by KONI is very proud to have been the birth ACT of SKN, it is recognized that the existence of the ACT of SKN is very supportive of the advancement of sport in Indonesia because it became the umbrella law. • Keep in mind That, in accordance with the law, the society formed the parent sport, then the parent sport form the KONI. Thus KONI was as coordinator of parent-parent sports. With the inception of the ACT, the National Congress on the SKN 10th in 2005 as the holder of the supreme power of KONI, decided a few things, the essence, the participants, including KONI-KONI the province recommends, among others, to investigate more deeply to the existence of article 40 of the ACT SKN. • That in the Commission there are two important things, first, to adjust the articles of Association and bylaws KONI in accordance with UU SKN. Second, is the review of article 40 of the ACT SKN, because in the area felt the tickling, there are limitations in terms of a public officer to serve as Chairman of KONI previously since the inception of the KONI no restrictions. This is due, as in Article 36 of ACT SKN, parent and KONI sport are independent. Thus the parent sport and KONI are independent. But then comes the Article 40 100 which only limit KONI, whereas the parent sport is not, if this is not discriminatory? • On the recommendation of the decision of the 10th National Congress referred to, then the KONI team assessment. The assessment team consisted of elements of the sports community the results of rekomendasinya, that article 40 is associated with other laws that there are discriminatory, thus further recommendations to the community who feel aggrieved to file further testing through existing mechanisms. The opinion of the Court [3.19] considering that after checking carefully the description of the petition and the propositions put forth evidence of the applicant, who submitted oral or written description, the PARLIAMENT and the Government, as well as the description of a witness or an expert, the Court held as follows: [3.19.1] That the rights set forth in Article 28C paragraph (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution, which provided the Foundation of a petition for quo argument is a constitutional right in the form of human rights inherent to the people (naturlijke persoon). Whereas, article 40 of the ACT instead of the SKN set about human rights but the restrictions set on the prohibition of the double Office for structural officials and public officials. Duplicate post with the ban only applies to the structural and officials that public officials, none of the rights of the applicant as a private person (naturlijke persoon) are violated. The applicants are not terpasung right to advance ourselves collectively, do not lose the right to the recognition, guarantees, protection and legal certainty are fair, and not treated are discriminatory with the enactment of article 40 of the ACT SKN; [3.19.2] That the provisions of article 40 of the ACT does not conflict with the rights of SKN each people to develop themselves in a fight for collectively to build community, nation, and her country. With the enactment of article 40 of the ACT, the claimant as SKN personally is not restricted or eliminated the right of asasinya. The reduction or limitation of the new HUMAN RIGHTS occurs if an applicant is prohibited be structural or officials of public officials. Article 40 of the ACT do not contain any discriminatory treatment of SKN, for restrictions on the 101


contained in article a quo applies to everyone. A differentiation of treatment is based on the distinction between those who held public office with structural and those who do not occupy the Office. Discrimination is treating differently against the same. Vice versa is not discrimination if treated differently against things that are different. If treatment of humans (everyone) is not the same as treatment of structural officials or public officials, it is not a discriminatory treatment; [3.19.3] That if any treatment is considered differently, then it was not incompatible with everyone over the treatment, guarantee, protection and legal certainty. Because, Justice itself has two meanings, that is komutatif, which gives justice to everyone just as much without looking at the merits of her achievements, and justice/distributif, which gives to every person in accordance with the service/achievements. Justice applied to article 40 of the ACT is justice distributif SKN. Justice in this meaning may be used in determining the conditions to be met for the specific position occupied. Such terms may include the determination of the boundaries of age, education, experience, health, a duplicate title, and others; [3.19.4] That must be distinguished between the limitation on constitutional rights and requirements made in the framework of the policy options (legal policy). Limitation of structural and officials the right officials not to concurrently be a steward KON (KONI) as stated in article 40 of the Act a quo is not a limitation on the applicant's constitutional rights. Such restriction is the policy options open to lawmakers with the aim solely to create good governance more effectively. For creation of the legislation, the limitation of Office as listed in article a quo is the capacity (permittere), not an obligation (obligatere) or ban (prohibere). The capacity is certainly has its advantages and disadvantages (cost and benefit). If the public official or sit in the structural management of KON, then with the authority inherent in the Office that can facilitate the collection of funds and can be more arousing awareness of the community to support the activities of KON. In contrast to the involvement of a public official or structural 102 can cause terkendalanya the independence and effectiveness of the annoying KON official itself in carrying out the task anyway. In addition, open the possibility of abuse of the function of acting for personal gain, and HER question. Both the above mentioned policy options are both constitutional and did not violate human rights. Pragmatic cost-benefit considerations in both of the above policy options, it is in fact over a wide range of alternatives being authorized the creation of laws to break the chain, and does not include the question of the constitutionality of norms. Likewise, the distinction between the position of the double setting for the parent Organization with Governance, and HER Sport is also a legal policy. In other words, it was left to the creation of the legislation to set it up, will it be equated or distinguished. Because between the parent Organization and KON Sport there are indeed similarities but there are also differences. [3.19.5] That on the one hand despite its formation KON, performed by the parent organization of the sport, but in terms of his job, he is an institution that carries out some duties of the Government in the field of keolahragaan as set forth in article 36 paragraph (4) of the ACT, namely, SKN: a. assist the Government in making national policy in the field of management, coaching, sports development and achievements at the national level; b. coordinate the parent organisation of sport, sports organizations, as well as the Sports Committee of the Sports Committee of provincial and district/city; c. carry out management, coaching, sports development and achievements on the basis of those powers; and d. carry out and coordinate the activities of national-level sports multikejuaraan. Therefore, the status of a fully KON community organizations are given a budget by the Government and functions implement (the implementation of) the construction of the keolahragaan, are different from the parent Organization status of sports. Meanwhile, the Government serves as a policy Planner and supervision. Therefore, it will indeed happen confusion if public officials as the planner of policies and supervision is also involved in activities that she should watch HER. It would interfere with the principle of accountability. While the Parent organisation of Sport is a non-governmental organization, so there is no question of accountability if the public official or structural and 103 positions as administrators of the parent organization of sports. But if any will be required that public officials and structural also may not concurrently served as caretaker of the Parent branch of the sports organization, so any time is a choice left to the policy-forming legislation to set it up that do not relate to the question of the constitutionality of norms. In remarks delivered by former Chairman BILL Panja a quo revealed that indeed in discussion in Panja never appear such opinion because Trustees sports was ex-officio was also steward KON; 4. Considering that the CONCLUSIONS DRAWN based on the entire consideration of the above, the Court concluded that: [4.1] that the applicant's plea is unwarranted; [4.2] that the provisions of article 40 of the ACT does not conflict with article SKN 28C subsection (2), section 28D subsection (1) and article 28I paragraph (2) of the Constitution. Thus the applicant's plea must be declared rejected; 5. AMAR VERDICT By Recalling Article 56 paragraph (5) of Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316); Judge: the applicant's appeal was rejected. The case was decided in the meeting of the provisional Judges, attended by the nine Judges of the Constitution on Wednesday, February 20, 2008, and is spoken in the plenary session of the Constitutional Court is open to the public on this day, Friday, February 22, 2008, by seven Judges of our Constitution, namely, Jimly Asshiddiqie as Chairman and Member, Achmad Roestandi, h. h. Abdul Mukthie 104 Maruarar Siahaan, Dawn, H.A.S. Natabaya, I Dewa Gede Palguna Soedarsono, and each Member with accompanied by Cholidin Nasir as a substitute Clerk and attended by the applicant/applicant's Authority, Government or representing, and the House of representatives or representing, as well as Related National Sports Committee; Chairman, ttd. Jimly Asshiddiqie members of ttd. H. Achmad Roestandi ttd. H. Abdul Mukthie Dawn ttd. Maruarar Siahaan ttd. H.A.S. Natabaya ttd. I Dewa Gede Palguna Soedarsono CLERK of the surrogate, ttd. Cholidin Nasir 105