influence intervention of any party to maintain neutrality and

guarantee professional management of the sport ".

Verse (3)" Urus as referred to in Verse (1) is prohibited

holds a post that Demonstrate duty, responsibility,

authority, and right as a civil and military civil servant

in order to lead a State or Government organization,

among others the office of echelons in the department or agency government

non department ".

Verse (4) " Care as referred to in Verse (1) is prohibited

holds a public office obtained through a process

direct election by the people or through an election in the Indonesian people's representative council Among others the President/vice president and the members of the cabinet, the governor/deputy governor, the regent/deputy regent, the mayor/deputy mayor, member of the House of RI, member of the House of Representatives, judges, members of the judicial commission, kaporli and commander-in-chief of the TNI ".

9. That, Article 56 Verse (4) PP Number 16 of 2007 as a summation

of Article 40 of the Law No. 3 of 2005 clearly violates the Right

Constitutional Court of Applicant as General Chairman of KONI Surabaya.

Article 123 Verse (6) Ordinance Government Number 16 of 2007

stated, " In case of violation of Article 56 (Regulation

Government Number 16 Year 2007 about the hosting of sport),

ministers may facilitate the election of the election. The new administrator

in accordance with the terms of the sports and regulatory organization

laws ".

paragraph (7)," In terms of the selection of the caretaker as referred to in paragraph

this is not held, the minister may recommend to the party

related to the funding to delay the funding of the funds to committee

national sports, propinsi sports committee, sports committee

county/city ".

10. That, the banning of the post by Article 40 of the Law Number

3 Year 2005 did not describe the specific seraca, so the applicant became

wondering what is behind it? Since the applicant is the General Chairman

KONI Surabaya, it never interferes with the applicant's performance as Chairman

5

Commission E DPRD East Java. It is possible to support each other, as the Commission

E has been able to deal with sports issues in the government of East Java province.

11. That Article 40 of the Law Number 3 Year 2005 and Regulation

Government Number 16 Year 2007 is very disrkiminative. Why? Because the sportskeeper of the sport is not prohibited by the

public officials. For example, TAUFIK EFENDY (Minister of Empowerment

apparatus of State) Pengurus PERPANI (Union of Panahan

Indoensia), Indonesian Pencak Silat Association All Indonesia (IPSI) East Java was held

by SOEKARWO (since the 2nd day of the year). November 2006), which bills as the secretary of the East Java Propinsi. The majority football cabor

the decomposition was held by public officials, e.g., PERSEBAYA Surabaya

held by Vice Mayor Surabaya ARIF AFANDI since 19 November

2005, DELTRAS Sidoarjo was held by Vice Regent Sidoarjo SAIFULILLAH,

Peaches of Kediri etc. What is the difference between Cabor football with KONI, toh cabor

is a part of KONI. This shows how Article 40 of the Invite-

Invite Number 3 of 2005 is made without regard to the principle of philosophy

The creation of the Act should reflect the aspiration

society.

12. Discrimination in the great dictionary of the Indonesian language publication

Education and Homelessness Balai Pustaka's second edition of 1995

defining discrimination is a distinction of treatment against fellow citizens

citizens. While under Article 1 of Clause (3) Act Number

39 of 1999 on Human Rights, discrimination is; any

restrictions, harassment, or impossibility, direct or not

are directly based on the distinction of human on the basis of religion, tribe,

taste, ethnicity, group, group, social status, economic status, type

gender, language, political beliefs, which resulted in a reduction,

deviation or removal of recognition, execution or

use of human rights and basic freedoms in life

well individual and collective in the political, economic, social law

culture and other aspects of life.

13. If the above definition of discrimination is clear, what

contained in the charge of Article 40 of the Act No. 3 of 2005

is a discriminatory form of policy. For obstructing the applicant

6

as a citizen who happens to be a public official (status

social) is hindered to be active as the administrator of KONI Surabaya, not

based on legal terms of procedure, e.g. education, knowledge,

experience in sports and others.

14. Article 28J of the Basic Law of 1945 states; In the run

rights and freedom, each person is mandatory subject to the restriction

specified by the law with the sole intent

to guarantee the recognition as well as the Respect for rights and freedoms

others and to meet fair demands in accordance with

moral considerations, religious values, security and common regularity

in a democratic society.

15. That the applicant is not included in what is referred to by the 28J

The Basic Law of 1945. Because if the above is

referred to limitations in Article 28J of the Basic Law of 1945

solely considering the moral aspects, religious values, security

and the general order. Whereas the restrictions (banning) public officials

being the caretaker of KONI as referred to Article 40 of the Act

Number 3 of 2005 did not explain the moral, religious, and other aspects of the law.

So the constitutional rights of the applicant are not included in

6. That the article has publicly available the public officials (applicant) who

wants to donate his power and mind to the advancement of the world of processor

raga. Thus, the applicant has argued that the applicant has

the legal standing (legal standing) as a party in the application

testing the legislation against the 1945 Constitution.

7. That Article 40 of the Act No. 3 of 2005 forbids

public officials are actively involved in advancing the world of sport for

being feared to abuse the office, unfounded. The question is,

was it indeed during this time when public officials were active in KONI

instead of using his power? There is no evidence of any that

states that when public officials are acitive in their KONI

abuse the office attached to it. During this time, officials

that is stuck in a criminal corruption c

Based on everything described above, the applicant pleads for the Court

The Constitution gives its amused verdict as follows:

1. Grant the applicant's request entirely;

2. Stating:

"Article 40 of the Law No. 03 of 2005 on System

National Sportscaster contradict Article 28C paragraph (2), Article 28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution ";

3. Stating:

" Article 40 of the Law Number 03 of 2005 on System

National sportscaster does not have binding legal force; 4. Ordering the loading of this ruling in the Republic of the Republic of Indonesia News

as it should be;

Or, if the Constitutional Court argues otherwise, please a fair ruling-

be fair (ex aequo et bono).

[2.1.2] Draw that to corroborate his request-control,

The applicant has submitted written evidence that has been passed by the Court,

being designated P-1 to P-13, as follows:

Proof of P-1: Photocopy State Basic Law of the Republic of Indonesia Year

1945;

Evidence P-2: Photocopy Act 24 Year 2003 on the Court

Constitution;

Evidence P-3: Photocopy Act No. 3 of 2005 on System

National Sportsman;

P-4 Proof: Photocopy of the Decree of the General Chairman of KONI East Java Number

821.2/SK.40/309/I/2006 on the Strengthening Of Koni

Surabaya;

Proof P-5: Photocopy of the Decree of the People's Representative Council of Java Region

East Number 16 Year 2004 on Leadership Penetration and

Council Members of the East Java Provincial Council of the term

2004-2009;

11

Proof P-6: Photocopy Event Appointment Vows Member DPRD

East Java Province;

Proof P-7: Photocopy Kliping Newspaper "Jawa Pos" Sunday, April 2, 2006;

Proof P-8: Photocopy Clippings The Newspaper "Birawa" Tuesday, 18 April 2006;

Proof P-9: Photocopy of Government Regulation No. 16 of 2007 on

The sportspersons;

P-10 proof: Photocopy of the Decree of the Indonesian National Sports Committee

No. 38 Year 2007 on Strengthening Improvements

Protective Makeup, Board of Honor, Board

The Maid, the Financial Supervising Board, and the Committee Replacement

Indonesia National Sports Province of South Sumatra Masa Bakti

2007-2011;

Proof P-11: Photocopy of the Decision Letter of the Indonesian National Sports Committee

Number 115 of the Year 2007 on Strengthening Shifts

The Personnel Time Board of Honor, Privy Council, Council

Supervising and Governing Badminton Union All

Indonesia (PB.PBSI) Bakti Period 2004-2008;

Proof P-12: Photocopy of Decision Letter Number Skep/224/PBVSI-JT/XII/2007,

East Java Provincial Director of the All Indonesia Volleyball Union

(East Java PBVSI), on Refinement Of Business

Administrator Of East Java PBVSI The Tenure Of Filial Affairs 2004-2008;

Proof P-13: Surabaya Football Union Decision Letter (PERsebaya)

Number 019 /Kep/PSBY/VIII/2007, about the restructuring of the caretaker

club persebaya 2006-2009;

[2.1.3] Are weighing that in addition to written evidence, the applicant has also been submitted

witnesses and experts namely, witnesses named Herman Rifai, Denny Tristiannto, and

Ismail (witnesses), as well as experts named Dr. John Pieris, SH., MS., Prof. Dr.

Satya Arinanto, S.H., M.H., and Hesti Armiwulan, S.H., M. Hum., who has

heard his regularity under oath, which is at his point as following:

Witness Herman Rifai that due to the position of witness as a Member of the City Council, a witness at

in 2000 was appointed Chairman of the City IPSI Branch (C.D.)

12

Surabaya, with members of the 36 schools. First time the witness served

The chairman of the IPSI Pengcab City of Surabaya did not have any equipment at all. By

the friends of the witness silat were viewed as a public figure,

as a public official, then they hoped that witnesses could

hold those tools, so that at the time it was decided

must buy 2 mattresses, scales, protectors, buy padding pad,

buy a bag, which costs 2000 times nearly 60 million,

by asking a few entrepreneurs to help

procure such equipment;

that of the two positions that are witnesses as Vice Leaders of the City Council of Surabaya and

Chairperson of the IPSI Pengcab City Surabaya, at its core the witness must divide the time

between the interests of the people of Surabaya with the interests of the organization that witnesses

hold;

The Witness's Witness Attraction is Denny's witness. Trisyannto That witnesses were in archery starting in 1980, and

along the witness journey, many of the achievements were achieved

in 1991 the Manila Sea Games national team won the general title,

Then in 2001 in Malaysia as well as a general champion.

That the desire of the athletes was one The commitment at the sport is to

raise the white red in another country, and that's done. In

achieving such commitments, witnesses are assisted by KONI Surabaya and KONI

East Java. Therefore, which is expected to be a synergy of

central and regional governments, the presence of a command line where as

The KONI Chairman there is governor, mayor, and Minister of Youth and Sports

is an extension. a hand from the government.

Witness by the applicant Ismail that when a witness as a government official, that is, as the Chief of Section

The Treasury Department (Acting Eselon IV) has a duty to

verify fluid all over the existing budget assets in the City government

Surabaya includes budget KONI;

that the KONI budget is listed in the budgeting system that is in-

-kan, then technically follow-up to the published operation

The Mayor's Decision Letter for the periodic melting is quarterly. 1

13

up to 4. Over the course of the rule, witnesses as executors

that thaws all the help for KONI by the rules, and never

get one connection or one connection where KONI requests that

be facilitated;

• that when the witness was retired in 2007 and widowed it, the witness

served as the treasurer of KONI. Initial witness sits in KONI, General Chairman

KONI Surabaya publishes rules on how to use and

empowers the KONI budget, which is 75% delivered for the benefit

sports branch, 25% for operational interest Koni, supports

activities that are notcover inside the sports branch, and last cost

operational.

that the entire officer apparatus at KONI gets a reward or money assignment,

but the General Chairman does not want to accept, meaning the General Chairman does not want

receiving the money obtained as a facility in KONI.

The Interest In The Applicant Dr. John Pieris, SH., MS 1. After a thorough and thorough study, it may be profound, that

PETITUM

a. Destination clarity;

b. Institutional or appropriate organ-forming organs;

c. suitability between types and charge materials;

d. can be performed;

e. todayagundation and usability;

f. The clarity of the formula; and

g. openness.

17

In our opinion, there are some critical accounts to be put forward

in this case, that is, in Section 5 of the c, d, e and f related to Section 40 of the SKN Act:

on the letter c. The principle referred to as "suitability between type and charge material" is that in the formation of the law the laws must actually pay attention to the proper charge material with the type of legislation.

Our study, it seems that there is no conformity between the types and

the charge material of Article 36 Verse (3) and Article 40.

in the letter d, the principle of "can be implemented" is that any establishment of a perinvite rule- invitation must take into account the effectiveness of such laws in the in society; either philosophically, juridical or sociological.

After the study appears to be forming the SKN Act does not understand the true principle

"can be implemented". Because of this, Article 40 of the following is difficult

implemented, as there is no substantially (legal

substance) conformity with Article 36.

on the letter e, which is "asas". and the usefulness " is that every law is made because it is absolutely necessary and beneficial in organizing a society, nation and country.

After being reviled, it can be said, that Article 40 not beneficial or

not optimally able to use for improving the committee ' s role

national sports in the sport.

on the letter f, referred to the principle of "rump clarity" is that any laws must meet the technical requirements of drafting Laws, systematics and choice of words or terminology, and its law is clear and easy to understand, so that does not give rise to any kind of interpretation in its implementation.

18

In our study, it appears that between Article 36 and Article 40, there is no

asas "the clarity of the formula" and its legal language is unclear and difficult

understood, resulting in a wide range of interpretations. In short,

forming the SKN Act is not properly understood the formation of the

regulations.

In addition to that the SKN Act also lacks understanding of the principles of

the charge materials of the laws. Section 6 of the Law No. 10 of the Year 2004, confirms: (1) The Code of Concurrent of Laws contains asas:

a. My father, b. humanity; c. nationality; d. Family; e. Let's go, let's go. bhineka singular ika; g. justice; h. Equal footing in law and government; i. order and certainty of the law; and or j. balance, uniformity, and alignment.

We argue, that there are some indications regarding the disobedience

forming the SKN Act against the principles of regulatory charge matter

legislation. To be clear, we are listed as follows:

Which is referred to as "humanitarian asas" is that any material charge material should reflect the protection and respect of human rights as well as the harkat and The dignity of every citizen and resident of Indonesia is proportionally.

After being redeemed, the charge material (provisions) Article 40 and its explanation

turns out to not contain the "humanitarian asas". As it turns out not

reflects the protection and respect of human rights as well as the harkat and

the dignity of each citizen to involve itself in activities and

sports management.

Which is referred to as " asas justice " is that any material charge material legislation should reflect

19

justice is proportionally proportionate to any citizen without exception.

After the study turns out the charge of Article 40 and its explanation is not

reflects justice proportionally to any citizen

without exception [vide Article 27 Verse (1) UUD 1945]. In fact, public officials

could have served the parent branch of the organization, but against

the national sports committee administrator was not allowed. This formula

is real in violation of the principle of justice.

In question, " the principle of common ground in law and government is that the material charge of the laws should not contain things that are of nature. Based on background among other religions, tribes, races, groups, gender, or social status.

After in the dalami, it turns out that the charge material (provisions) Article 36 is not

distingues the rule of the independence of the branch parent organization,

but Article 40 and its explanation distinguish its independence rule

National sports committee administrator. It can be explained here, that the Article

40 is diametrally contrary to Article 36. It can be affirmed

also, that the provisions of Article 40 and its soot are provisions

contrary to the principle isonomia, or the principle equality befote

the law.

Which is referred to as "order of order and legal certainty" is that any material charge of the law should be able to generate order in the community through the guarantee of legal certainty.

If understood, it appears that the charge material (provisions) of Article 40 and

the explanation does not create the principle of order and legal certainty,

because in addition to contrary to Article 1 Verse (3), Article 27 Verse (1)

and Article 28 of the 1945 Constitution, as well. conflicting with Article 36 of the SKN Act

so that potentially elicits legal uncertainty and

untertiban in society, especially in doing

sports management.

For example, an unelected Governor, Regent or Mayor

to fill the public office, surely he could be the Chairman committee

20

regional sports (many Governors, Regent and Mayor as Head

caretaker area).

Which is referred to as "equilibrium, uniformity, and alignment" is that the charge material of each law must reflect balance, uniformity, and alignment, between the interests of individuals and the public with the interests of the nation and country.

If it is understood critically and meticulously, it can be said, that the material

charge of Article 40 and its explanation does not reflect the principle

balance, uniformity and alignment, because of the individual interests

officials the public to advance the sport is held because it is not

may be the administrator of the national sports committee, province,

county/city. This principle has clearly been violated by law-forming

SKN.

7. With respect to Chapter III of Sectiles

principles of formation and principles of charge of law charge regulations-

invitation which is valid under Article 5 and Section 6 of the Law No. 10 Year 2004 as follows: In our opinion, the SKN Act-forming does not understand it carefully

principles of establishment of laws under Article 5

Act Number 10 of 2004 on the formation of Regulation

The laws of which Good. Article 5 of the Law Number 10 of the Year 2004

confirms:

In shaping the Regulation of Legislation must be based on

tme reveal a dalil: The legal system could be damaged in the event of a procedural error and substantial that damnation the efforts of the citizens to achieve justice morally. What is being delivered by Donald Black; the law is not merely viewed

in the rule and logicperspective, but also in the social structure perspective

and behaviour.

24

Black's ideas actually want to remind us not

blindly swallowing legal regime positivism legism embraced by Thomas Hobbes, Hans Kelsen and John Austin, which at its core

separates the laws of the moral and the sense of justice. What Black said was important to understand that the sociology of sports,

the social behavior and structure of Indonesian society, especially those in

provinces, districts/cities wanted to intervene officials-officials

structural and the public to engage actively (structural and functional) in

build a national sport thoroughly.

That does not look with the Governor/Deputy Governor and the members

The House in leading the committee the sport will do something that

harms. It's quite the opposite. Very neutral if

Governor/Vice Governor and House members as well as structural and public officials

others are leading the sports committee, so that they can oversee all

the organization of the sports branch organization. If structural and public officials

can only lead the parent of the sports branch organization, then this policy

is not fair and not neutral because they will focus only

the advancement of one field of sport only.

In actuating legal supremacy, there can be no other Article 40 and

the explanation must be revised into a more fair and democratic article

as well as beneficial for future sports development.

Attraction Expert Applicant Prof. Dr. Satya Arinanto, S.H., M.H.

A. Historical perspectives of Post-Interest Interest between State (State) and Society (Society) in Sports Management

Related to a testing application of Article 40 Law No. 3 of 2005

on the Sports System National submitted by the applicant, first-

tama I submit that based on the material titled "The flashback

Berself KONI" as attached, it appears that in the early days

its establishment, the agency is in charge. The sport's problem was formed by

society (society), which is by the former Governing Sports leaders GELORA,

SON, ISI, et cetera.

In later developments, especially when RI was

preparing for the 1962 Asian Games in Jakarta, the government

initiative to form the Indonesian Asian Games Council (DAGI) in 1959;

25

followed by the formation of the Sports Movement Command (KOGOR) in

in 1961; the establishment of the Department of Sports (Depora) led by

Minister Maladi in 1962; and also the formation of the Sports Council

The Republic of Indonesia (DORI) in 1964. In the period 1959-1964 it was able to

it was said that the state (state) was instrumental in the sport's affairs.

In 1965 the Joint Secretariat-parent Branch of the Branch Organization

Sports attempted to propose replacing the DORI became the independent, independent Indonesian (KONI) Committee of Indonesia (KONI), and was free from political influence. This

could be seen as an attempt to put the sports business on

the position society back. However, in 1966, President Sukarno instead published the Presidential Decree (Keppres) No. 143A and 156A of 1966

to confirm the establishment of KONI in lieu of the DORI. The attempt to

retracted the sports administration to the state hand was not successful because

not supported by the Sports Branch Organization's parent-parent organization was

a political problem at the time.

However As soon as Suharto was with the Order

Barunya rose to the top of power. In those days, the administration

the sport was increasingly placed in the hands of state. It can be seen from stage-

the developmental stage of KONI after 1966 as attached.

Next we know that in the 1980s Suharto also formed

the Ministry of State of Youth Affairs and Sports (Debauchery) led by

dr. Abdul Gafur. At that time the KONI seemed more dominant than Menpora,

since KONI was still led by Sri Sultan Hamengkubuwono IX who also

was the Former Vice President of the Republic of Indonesia. This resulted in Menpora being

looking "sated" and "helpless" facing KONI. This was then

was attempted to be completed by President Suharto by calling

Menpora and Chairman of KONI to the Palace. As a result of the meeting, there was a statement that

attempted to have a good coordination in the management of the sport.

B. Historical aspect effect on Political Law Establishment Act No. 3 of 2005 on the National Sportsman System

The post-ebb situation is attractive between state and society this is what

most likely underlies the legal political formulation in the formation of the Act

Number 3 of the Year 2005 on the National Sports System. In this Act state

(represented by Menpora) is positioned very strongly. This is for example

26

appears in Article 32 Verse (1)-which confirms that the management of the system

national sport is the responsibility of the Minister. Further in

Verse (2)-it is stated that the government determines national policy,

national sporting standards, as well as coordination and oversight of

the management of national sportspersons.

This is reinforced with the assertion that the sports committee administrator

national, the provincial sports committee, and the county/city sports committee are

independent and are not tied to any structural and public office activities

as Affirmed in Article 40 with the explanation. However strangely

this in its preview is not the same as against the parent administrators

the sports branch organization as set up in Article 36. It appears

from the presence of some structural officials and public officials leading the parent-

parent sports branch organization as described in the request from

the applicant party and also revealed in the process Court. This is what

gives rise to inconsistencies. In its reality, the Government's party arguments and

DPR that being KONI's Care-both at the Centre and in the Region-are

heavier than being the Sports Branch Organization's Master Manager is

not exactly, because if a person to be a Master of Branch Organization

Sports at the Central level, then the responsibility will be much heavier

than if to be the KONI Manager at the Regional level; as it becomes

The Parent's Manager The Sports Branch Organization at their Central level must

be responsible for the progress of the sports branch across the educative function. Through the establishment of a democratic, national and responsive law, which is based on a sociological and philosophical basis that

is strong, then the legislation will have a strong, binding power and power

. Here comes the meaning of the educational function. The educational function of the legislation

should be seen in the perspective of the nation's enlightenment and the reinforcement of supremacy

the law, not the supremacy of parliament and government.

In the end let ts, there is not a single standard of human rights