17

The MHI Law Society) for recognition, assurance, protection, and fair legal certainty

as well as the same treatment before the law ".

mechanism known as the integrated criminal justice system. Integrated

criminal justice system is a system that views the completion process

the criminal case as a single continuum since the inquiry, prosecution,

severing the matter up to completion at the level Correctional agencies.

So it is not a system that will be overtaken to the outpacking of functions that

can result in difficult and late problems solving existing problems. Bill

25

The MHI Law Society) "investigation" is the police domain in order to achieve

The integrated criminal justice system,

cause the Police are clear. as the "law enforcement state tool"

as defined in Article 30 Verse (4) of the 1945 Constitution ".

2. Against the reasons for the applicant's request above, we

argue that the Applicant has misinterpreted the sections

referred to as well as the Applicant not deciphing clearly and complete

basis/reason of contention (contradiction) between Article 30 of Verse (1) letter d

No. 16 of 2004 with Article 28D paragraph (1), Article 28G Verse (1) and

Article 30 Verse (4) of the 1945 Constitution; so it is clear that the request of the

The applicant is a far-fetted reason. even the applicant

wants to rid himself of criminal responsibility as a result of

the deeds of the applicant II as well as the citizens subject to the law.

The above description indicates that the applicant ' s plea

is a blurred request (obscuur libel). Therefore,

the applicant ' s request should be declared unacceptable.

V. GOVERNMENT REBUTATION OF THE REASONS RAISED BY THE APPLICANT IN HIS REQUEST

That the provisions in Section 30 Verse (1) of the letter d Act No. 16

In 2004 concerning the Prosecutor of the Republic of Indonesia do not conflict with the

Article 28D paragraph (1) of the Constitution of 1945, Article 28G Verse (1) and Article 30 Verse (4) of the Constitution

1945, for the following reasons:

1. In accordance with Article 30 of the paragraph (1) of the d Law No. 16 of 2004 on

The Prosecutor of the Republic of Indonesia, governing that the Prosecutor has

the authority of conducting a specific criminal conduct investigation (e.g.

Act Number 26 of the Year 2000 on the Court of Rights

Man and Law No. 31 of 1999 on

The Eradication of Criminal Corruption as amended by

Act Number 20 Year 2001 juncto Act Number 20

in 2002 about the Commission on Eradication Of Criminal Corruption).

2. That the prosecutor's authority in the Prosecutor's

handling of criminal corruption charges, cannot be released from the 5

(five) review aspect, that is:

26

Community Law MHI) 2.1. Philosophical Aspects.

57

The MHI Law Society) that it is thus, therefore, as the applicant I is not a party

directly related, and there is no constitutional right of the applicant I

directly related to the a quo, then

The legal logic is clearly not a constitutional loss that

experienced the applicant I.

thus the applicant I did not have a legal position (legal

standing) for not meeting the terms defined by Article

51 Verse (1) Act Number 24 2003 on the Court

Constitution and its Explanation, as well as the Constitutional Court of Justice

Number 006 /PUU-III/2005 and the Constitutional Court Number

010 /PUU-III/2005.

Occupation of Law (Legal standing) Applicant II.

About the legal standing (legal standing) the applicant II, that

in the a quo application has been suggested that the applicant II is

the retired Army of the Army which the inquiry has done

The Police Department later according to the applicant terminated

based on the Letter of Decree Number pol. S. Tap/103/VII/2004/Dit.4

subject of the Investigative Stop (SP3) dated 20 July 2004. However,

on August 6, 2007 the Attorney General has called,

checking and sizzling the discredited applicant

the criminal corruption.

The petitioners in the plea a quo suggest that

with the enactment of the provisions of Article 30 of the Law No. 16

of 2004 on the Prosecutor of the Republic of Indonesia, consider

the rights and/or constitutional authority of the Applicants Harmed

that is feeling treated is not the same in the presence of the law and

feels there is no legal certainty that is with the

summoning, inspection and investigation carried out the prosecutor

to the applicant II. Therefore according to the applicant

the a quo provisions contradictory to Article 28D Clause (1) and the Article

28G Verse (1) of the 1945 Constitution.

58

The MHI Law Society) In this case, against the request a quo needs

in question first about the legal position (legal standing)

The applicant is:

Is The applicant is eligible to qualify as a party

(Applicant Qualification as Section 51 Verse (1)

and Explanation of the Constitutional Court Act, and

meets 5 (five) terms (vide of the Decision of the Number)

006 /PUU-III/2005 and Perkara Number 010 /PUU-III/2005) which

considers the rights and/or its constitutional authority

harmed by the enactment of Law Number 16 of the Year 2004

about the Prosecutor of the Republic of Indonesia?

Whether the applicant ' s constitutional loss

is meant to be specific and actual or at least is

a potential that according to reasonable reasoning can be confirmed

will occur, and whether there is a relationship because of (causal

verband) between the damages up to the legislation

is being honed to be tested?

That to outline an answer to the questions

it will be described as follows:

On whether the applicant is eligible to qualify as

The party that considers the rights and/or authority Its constitutionality

was harmed by the enactment of Law No. 16 of 2004 on

The Prosecutor of the Republic of Indonesia? It can be described as follows:

First, If the applicant considers it to be eligible

which is determined to be the Party of its constitutional rights

aggrieved by expiring Act No. 16 of 2004

about the Prosecutor of the Republic of Indonesia, then this needs to be questioned right

which constitutional has been harmed?

That the Applicant ' s control is right Its constitutionality

has been harmed by the enactment of Article 30 of the Law Number 16

In 2004 on the Prosecutor of the Republic of Indonesia, it was deemed

in violation of Article 28D Clause (1) and Article 28G Verse (1) of the Constitution of 1945

is an unfounded bending.

59

The MHI Law Society) Regarding the limitations of constitutional rights strongly and concrete explained

in the Explanation of Article 51 of Verse (1) Act No. 24 of 2003

on the Constitutional Court of the Constitution said that "in question

with the constitutional right is the rights that are set forth in the Invite-

Invite Basic State of the Republic of Indonesia in 1945". This provision

explains that only the rights explicitly set in

The 1945 Constitution is included in the sense of "constitutional right".

It needs to be understood that the terms of the applicant are the ones

is determined in the Decree of Case Number 006 /PUU-III/2005 and Perkara

No. 010 /PUU-III/2005 one of them is "the constitutional right

The applicant given by the Constitution of the Republic of the Republic

Indonesia Year 1945".

Because it is in relation to the explanation of Article 51 of Verse (1) Invite-

Invite Number 24 of 2003 on the Constitutional Court need

be reviled and understood if there is a constitutional right of the applicant

that explicit the mandated Article 28D paragraph (1) and Article 28G Clause

(1) The 1945 Constitution is related to the postulate of the applicant in

the testing application of Article 30 of the Law Number 16 of the Year 2004

on the Prosecutor of the Republic of Indonesia.

Second, That provisions of Article 28D paragraph (1) and Article 28G Verse (1) of the Constitution

1945 contains substance regarding legal and protection certainty

personal, family, honor, dignity, and property, as well as the feel

safe and fear threat.

To understand the meaning contained in Article 28D paragraph (1) and

Article 28G Verse (1) of the Constitution of 1945 should be viewed is well as the Determination Constitutional Court Number

006 /PUU-III/2005 and Constitutional Court Decree Number

010 /PUU-III/2005?

Does the applicant I have a constitutional right?

Whether there is a constitutional loss as a result of the entry

Act No. 16 of 2004 on the Republican Prosecutor

Indonesia?

That under Article 51 Verse (1) Act Number 24 of the Year

2003 on the Constitutional Court and its Dissolution and Dissolution

Constitutional Court Number 006 /PUU-III/2005 and the Constitutios to be understood by the petitioners, that the prohibition

a second examination of the case with the subject and object that

equal only applies to an act of which it has been

is broken up by the court and the verdict has gained

the power of the law remains. In a a quo, an act that

conducted the applicant is still in the examination stage of the inquiry and

not yet on the court ruling of a fixed law.

The provisions of the prohibition "nebis in idem" are set up Also in Section 18 of the paragraph (5)

Act No. 39 of 1999 on Human Rights

states that: " Everyone cannot be prosecuted for a second

the same time in the same case for a deed. has

obtained a fixed law-force court ruling ".

12. Based on the provisions in Article 18 Clause (5) of the Law No. 39 of 1999 on Human Rights, it is clear

that the Prosecutor's setup of the Prosecutor with

base its authority on Article 30 of the Law Number

16 Year 2004 on the Prosecutor of the Republic of Indonesia is valid and

does not violate the provisions of Article 28D Clause (1) and the Article

67

The MHI Law Society) 28G Verse (1) The 1945 Constitution, even in line with the provisions of Article 28J

paragraph (2) of the 1945 Constitution which reads:

" In exercising its rights and freedom, each person is subject to submission

to the restrictions set forth with the legislation with

The intent is solely to guarantee recognition as well as respect

upon the rights and freedoms of others and to meet the rules

fair according to moral considerations, religious values, security

and the public order in a democratic society".

13. That under control as described, the DPR argued

that the provisions of Article 30 Verse (1) of the letter d Act No. 16

2004 on the Prosecutor of the Republic of Indonesia were constitutionally

not contradictory with Article 28D Verse (1) and Article 28G Verse (1)

Constitution of 1945.

That is based on the above, the House pleads

if the honorable Assembly of the Constitution of Justice gives an amar

the verdict as follows:

1. The applicant a quo does not have a legal position

(legal standing), so that the a quo request should be declared not

is acceptable (niet ontvankelijk verklaard).

2. Rejecting the a quo for all (void) or no-

no a quo request is not accepted

3. Article 30 of the Law No. 16 of 2004

on the Prosecutor of the Republic of Indonesia does not conflict with

Article 28D Clause (1) and Article 28G Verse (1) of the 1945 Constitution.

4. Stating Article 30 of the Law No. 16 of 2004

on the Prosecutor of the Republic of Indonesia remains valid and fixed

has a binding legal force.

If the Honourable Assembly of the Constitution of the Constitution argues another, we

Please a verdict that is fair (ex aequo et bono).

[2.6] weighed that on the January 17, 2008 trial of the Police Direct Related Parties which was represented by Combes Pol RM. Call

has provided an oral and written description, as well as applying for 2 (two)

an expert named Prof. Dr. Drs. Awaloedin Djamin, MPA., and Dr. Otto

68

The MHI Law Society) Cornelis Kaligis, S.H., M.H. who has been heard of his interest in the trial

dated February 12, 2008 as follows:

The Immediate of the Police Direct Related Parties of the Police Department of the MHI Department of Law.

a. The applicant (Legal Standing) is concerning the testing of

Article 30 Verse (1) Act No. 16 of 2004 on the Prosecutor of the Republic

Indonesia which the applicant is considered to be contrary to Article 28D Clause

(1) and Article 28G Verse (1) UUD 1945.

b. Article 30 Verse (1) Law No. 16 of 2004 on the Prosecutor of the Republic

Indonesia reads as follows:

" (1) In the criminal field of the Prosecutor's penal duty and authority:

a. conducting the prosecution;

b. carrying out the precepts of judges and court rulings that have been

a fixed force;

c. perform surveillance on the execution of a conditional criminal verdict,

the oversight ruling, and the conditional Iepas ruling;

d. conduct an investigation, against certain criminal acts based on

undang-undang;

e. complete a specific case file and for it to be able to do

additional checks before being cast into the deep court

The implementation is coordinated with investigators. "

c. The principle of the Constitutional Court's testing of a law should

show and prove the substance of a statute in conflict

with the Constitution of 1945 by the applicant (Legal Standing). In this case

(in casu) The applicant has indicated that Article 30 Verse (1) of the letter d Act

No. 16 Year 2004 on the Prosecutor of the Republic of Indonesia has

contrary to Article 28D Verse (1) and 28G Verse (1) UUD 1945 which

core:

"rights to recognition, assurance, protection, certainty law fair and equal treatment in front of the law".

d. As has been affirmed by Article 1 Verse (3) of the 1945 Constitution is the legal state. The elements of the state of law are constitutionalism that

wishes that the constitution or the basic law in casu Constitution of 1945

is completely retaken the authority of the inquiry is limited to the extent that certain laws are governed. "." Next Pof Dr. Andi Hamzah, SH states that:

" So it is still maintained that the investigation of certain criminal acts is set in legislation on the grounds that there is a impeachment trial of the criminal corruption case That could be vast ... ".

66

The MHI Law Society) Based on that provision, it is clear that the Attorney General's action

performed by the Attorney General in the a quo is not

in violation of the law.

10. By basing on the authority set in Section 30

Verse (1) the letter d, the inquiry done by the Prosecutor against

The applicant II cannot be said to do a recharge (nebis in

idem) because Although the subject is the same, but the object of the object is clearly

different. At the police investigation that

then according to the applicant is terminated based on the Decree

The Pol Number. S. Tap/103/VII/2004/Dit.4 on the Investigative Stop

(SP3) dated July 20, 2004, the object of the object is

embezzlement or fraud (Article 374 or Section 372 of the Criminal Code),

while the investigation is then carried out by the Prosecutor of the Object

The case against which is a corruption criminal.

11. Further neede General Explanation Of The Act Number

16 Year 2004 on the Prosecutor of the Republic of Indonesia. Authorization

The prosecutor's attorney for a specific criminal investigation

is intended to house some of the provisions of the legislation

63

The MHI Law Society) which authorizes the Prosecutor to perform

an investigation for example Law Number 26 of 2000 on

the Court of Human Rights, Act Numd no longer valid.

r. As such, the words "temporary" and "until being changed ... and or

are declared no longer applicable" must be read as a must for us

not to let such provisions prolonged

(or "discontinue"), or even obligall us to promptly revisit to be customized and refined as the demands of the codification and unification are desired by the KUHAP itself. It is further formulated in the Description of Article 284 paragraph (2) of the letter b

KUHAP, as follows:

"Which is referred to as" special plination will occur abuse of power

(misuse of authority), which results in constitutional rights of the

justice seeker (justiciable) within the state the law will be harmed/neglected.

m. With the dual authority attached to the Prosecutor's

directly or indirectly, it has been influential to existence

Polri in conducting the investigation process in particular of the special criminal proceedings

(in this case criminal corruption), which in this case the Prosecutor's party

often makes it up to provide clues in the refinement

The investigation of the case, it is meant to be image of the community that

in countermeasures criminal corruption that is considered capable only

Prosecutor;

n. From the beginning of a law practitioner Dr. O.C. Kaligis, S.H., M.H., not

agrees that there is a given dual authority (inquiry and prosecution) granted

to the Prosecutor's Office. Originally the dual authority was retained

within 2 (two) years or until there was special legislation changes such as the Act

on the Criminal Code of Corruption and the Economic Penal Code. However

The change of the Special Act has never been dealized until this time,

even appears disparities of various laws that provides

authority to the Prosecutor as an investigator. Therefore, it is clear

The dual Prosecutor's authority is institutional no

that controls it or controls it as ideals or purposes

the formation of the KUHAP;

o. Override provisions of the KUHAP as set in Section 284

Verse (2) KUHAP specify:

73

The MHI Law Society) " (2) Within two years after this law was promulcated, then

against all matters enacted this invite provision

with the exception of For a while regarding special provisions

the criminal event as such on certain legislation,

until there is a change and or is declared no longer applicable."

The explanation of Article 2 condems as following:

"a.Which is referred to as" Special Terms of the criminal event as it

in particular legislation " is a special provision of the event

criminal as it is among others:

1. Legislation on the Shrinkage, Prosecution and Judicial Conduct

The Economic Criminal (Law Number 7 Drt. 1955);

2. Legislation on the Eradication of the Corruption Penal Code

(Act Number 3 of 1971);

with a note that all special provisions of criminal events as such

on certain laws will be reviewed, altered or

revoked in a short period of time.

p. The spirit of the renewal of the KUHAP system in order to protect human rights

through the system functional differential (in particular the separation of authority

the investigation and prosecution) among others is reflected in the discussion treatise

bill KUHAP, especially regarding the provisions of Section 284 Verse (2) of the KUHAP that

in a large line have been contained in the KUHAP implementation guidelines issued by Department of Justice RI through the Decree of Minister of Justice RI Number M. 01.PW.07.03 TH.1982, dated February 4, 1982, pp. 114 s.d. 122, which is essentially the following:

-The Government ' s stance stance on "investigators" (which is separated from

prosecution), in addition to being formulated in the draft HAP bill delivered

to the House as a result of Government thinking, can also be found

back At the time of the Government's explanation of expectations

the HAP bill, specifically regarding "investigators" as follows:

"So in concreto" Jaksa/PU does not run a physical investigation or

de facto, except for those by the investigator ' s legislation it is indeed

submitted to The prosecutor, for example, is an economic criminal, a criminal offense

of corruption and bank secrets and/or by the head of state

74

The MHI Law Society) Iangsung is ordered to be handled alone by the Attorney General or the apparatus

The Prosecutor ".

" Whatever HAP is for a criminal case that is special in essence

applies The law is with the special exceptions

.

-uphill of it all, the Government remains opined that:

1) The issues governing special provisions are like

laws and that are not subject to the way that

applies (HIR-kini/HAP) future), it needs to be set in its own.

2) The arrangement does not reduce the nature of the fictitious and unification properties

HAP applicable (both present and later), as

codification and unification still provides opportunities and leeway for

special.

3) That rule needs to be given a constraint to be early to be able

on the HAP pagary so that it would not be repeated if

loss of its properties, in line with the setting that

such special provisions:

a) are found/loaded in an Act, not in PP, KEPPRES, and

others-lain;

b) regulate certain criminal acts beyond the KUHAP and the provisions

special events, so that the section in additional rules and rules

shifts as notes While erasing (draft of Article

3 KUHAP) and can also be loaded in the Cover Rules, suggested

its formula as follows:

" FOR CRIMINAL CASES, WHETHER LOADED IN

IN THE CODE AND THE NO, BASICALLY

ENACTED THE EVENT DESIGNATED IN THE INVITE-

UNDANG THIS, WITH THE TEMPORARY EXCEPTION

REGARDING THE SPECIAL PROVISIONS OF THE CRIMINAL EVENT

AS SUCH IN THE PERINVITE RULE-

INVITATIONS ABOUT CERTAIN CRIMINAL ACTS, UNTIL ANY

CHANGES AND OR OTHERWISE ARE NOT APPLICABLE ".

75

The MHI Law Society) q. It should be explained that this formula contains two main elements:

1) is a principle that HAP is treated for all criminal acts,

in this case it is asserted with the words " essentially enacted

the event set in this Act ";

2) an exception, but against such exclusions

given the strict limitations, namely:

a) the exception is temporary;

b) is only about the following. the special provisions of the criminal event;

c) is limited to the Act that regulates certain criminal acts only;

d) until the presence of changes and.or is declare and purpose. legislation to

limit the buildup of power, in order for law enforcement not easy

terciciti inclination to power.

4) The assignment of assignment given to each instance

law enforcement as a reflection of the principle of differentiation function in particular

between Investigator Polri With PU. In HIR, Polri Investigator and Prosecutor

72

The MHI Law Society) each other has the anal corruption investigation, whereas

corruption by some is already seen as extraordinary crime,

not even just being an enemy of the Indonesian people, but

already the enemy of the world for already a crime

transnational.

8. In a critical view that rests with justice and one

the development is " a political policy that rules the rules

82

The Law Society of MHI) the basis of stp>

The Law Society of MHI) Therefore there is Article 109 with Section 138 of the KUHAP, and the division

special regarding the Broadcast Chapter, Prosecution, Examination, and

correctional.

[2.7] weighed that in the February 12, 2008 trial of the Supreme Court Direct-Related Party represented by Marwan Effendi has

provided the caption orally and written among others as follows:

The Attorney General ' s Direct Related Side Description

1. The position of the Prosecutor in the constellation of constitutional states is set in

Article 24 Section 3 of the 1945 Constitution and functionally the task and authority

relating to the power of the judiciary is governed by the law. Invite-

invite as a product of legislation is a collective political policy instrument,

represents a sovereign people's agreement through its representatives in the

legislature. As a result, the logical consequences

of the product legislation must be obeyed by each citizen as it has been

affirmed by Article 27 Verse (1), that " All citizens together

the two in the "(equility before the law)."

2. The Prosecutor as one of the Institution of Law Enforcement is sub ordinated

of the legislation, and as a holder of the authority dominus litis in

the criminal case (the determinate of one to be confronted with the trial as

The defendant) cannot be able to outline the intent of the legislation

but must also be able to carry out and secure it and

not contra legem, and by statute also

the task and authority to carry out the investigation of the follow-up

criminal corruption.

3. To find out whether the task and authority are at odds or

not with the 1945 Constitution, then it needs to be expressed more dahuhu about 3

views on the law, first legalistic, second functional and third

critical (Sudarto, Law and Criminal Law, 1997: 11). The view that

legalistic rests with "legal certainty (predictability or

rechtszekerheid)", a functional view rests with "usability

or legal expediency (utility or doelmatigheid)" View

80

The MHI Law Society) is critical to "justice (justice or gerechtigheid)" or

other synonyms of legal certainty, legal expediency, and justice

is rechtssicherheit, zweckmassigkeit and gerechtigkeit (Gustav Radbruch,

Einfuhrung in die Rechtswissenschaft, 1961: 36).

4. Legal certainty, justice and legal independence are

constituting the basic values of the law (Gustav Radbruch, Ibid) with the word

another is "the legal idea (rechts idee)" or "legal joy" that is

notion, karsa, copyright and mind with regard to the perception of legal significance.

Cita of Indonesian law is rooted in the implied Pancasila in the paragraph

to the 4th Opening of the 1945 Constitution that set the framework and the basic structure

the organization country (Bernard A. Sidharta, Cita Law Pancasila, 2003: 1-2)

5. Based on what has been put forth above, then to declare

whether a statute or a section of the legislation

contradictory or not with the 1945 Constitution, surely must be seen from third

the base value of the law, meaning not only of the facets of certainty

the law, but also of the aspect of justice and aspect of usability or expediency

the law, in order for an inpartial point of view.

6. In a legalistic view that rests with legal certainty, the law

is seen as identical to legislation and the law is applied to

normative yuridis. As a "logische Geschlossenheit", the law is

a logically closed structure, not contradictory to each other and must be

adhered to the community (Sudarto, Loc Cit). The main one for legal certainty

is the existence of the rule itself (Gustav Radbruch, Loc Cit). By because

that, from the aspect of legal certainty, the prosecution's authority on the case

The prosecution of corruption conducted by the Attorney-based Act

is an attempt to implement the 1945 Constitution and

expressis verbis does not conflict with the 1945 Constitution. In addition, it is

the setting of the investigation of criminal corruption of corruption carried out by more

from one law enforcement institution, its purpose in order to be realized "cheks and

balances", because if one The investigator ignores his authority

does not follow up on a criminal corruption case, so that

is done by another investigator, so that the law can be enforced

consistent and consequent. In various developed countries, the system is still embraced,

81

The MHI Law Society) as in countries following the civil law, among others the Netherlands

and France, as well as other developed countries such as Japan and Korea,

The setting is set. therefore that according to Prof. Sudarto refers to the theory of stir

The steering, not only can more, guarantee legal certainty, even more

may provide benefit to the legislation itself (Sudarto, Capita

Selecta Law Criminal, lecture, 1977).

7. In a functional view that rests upon usability or

legal expediency, given that " the law is made with the purpose of

to achieve certain desired results (Jhering in Bodenheimer,

Jurisprudence, the Philosophy and Method of the law, 1974: 87), which

must be noticed by the results and for that can be seen from the table below:

DATA CRIME ACTS CORRUPTION (PROSECUTION) BEING DOUSED BY THE PROSECUTOR, POLICE AND THE KPK IN 2003 UNTIL 2007

PROSECUTOR R.I. R.I. KPK PERCENTAGE (%)

PROSECUTOR POLRI KPK

2003 588 36-94.2 5.7-2004 515 102 2 83.1 16.4 0.32 2005 589 144 17 78.5 19.2 2.2 2006 593 141 78.3 18.6 3.0 2007 564 83 27 83.6 12.3 4.0

Note : - The source of the Prosecutor General's Special Criminal Prosecution of Criminal Code and KPK

-New KPK was formed late in 2003, so that 2004 was not yet optimal for the case because it was still trying capacity building.

-Data 2006 and 2007 investigation results POLRI still have 11 unreported fingers.

From the quantitative data above, it is conceivable, if the Prosecutor is not

authorities again conduct a crimial provisions of Article 1 clearly provide the authority of the inquiry

only to the Police or civil servants officials number 1-5, moderate

figures 6-7 are clearly authorized to authorize the prosecution as a public prosecutor.

Authorities other than the public prosecutor are carrying out the designation

judge in addition to that one roof is only given to tenggang time 2

(two) years, Article 284 Verse (2) KUHAP.

-That's the fact that the DA' s just sizzling over corruption, the tempting case

that it's temptinct No. 24 of the Year

2003 on Constitutional Court, subsequently called Act MK, juncto Article 12

Verse (1) Act Number 4 of 2004 on the Power of Justice,

LNRI ' s 2004 Number 8, TLNRI Number 4358, Court Authorities prosecute

at the first and last rate the verdict is final, among other things, to

test the legislation against the 1945 Constitution;

[3.4] A draw that the a quo plea is a plea, testing the legislation, in casu testing Verse (1) letter d Section 30 of the Prosecutor Act,

thus, the court is authorized to examine, prosecute, and

cut off a quo;

LEGAL STANDING (LEGAL STANDING) THE PETITIONERS

[3.5] weighed that under Article 51 Verse (1) MK Act, which can apply for test of legislation against the Constitution of 1945, which is

parties who regard the rights and/or its constitutional authority

aggrieved by the enactment of the law, namely:

a) of the Indonesian Citizen, including a group of people that

has the same interests;

86

The MHI Law Society) b) the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in An invitation;

c) the public or private legal entity; or

d) state agencies.

[3.6] The draw that based on the evidence tool [P-1] is a KTP photocopy, it has turned out that either the applicant I, nor the applicant II are the Citizen

Indonesia. Therefore, both are included in the Citizen category

The State of Indonesia, so that it has met one of the qualifying elements of

the legal position (legal standing) to act as the applicant in

a quo application application;

[3.7] Balanced that it will be but for someone or a party to have a legal standing (legal standing) as a testing applicant

legislation, in addition to the meets qualification as intended

in paragraph [3.6] also must meets the terms of the rights and/or constitutional authority. With regard to it, the Court since the Break

Perkara Number 006 /PUU-III/2005 and subsequent ruling, the Court

argue that the loss arising out of the enactment of an invite-

invite according to Article 51 Clause (1) of the MK Act, must meet 5 (five) terms

as follows:

a. The constitutional right of the applicant given by UUD 1945;

b. The applicant ' s constitutional right is considered by the applicant to be harmed

by the enactment of the legislation being tested;

c. That loss is specific (specifically) and actual or at least a potential

potential that reasonably according to reasonable reasoning will be assured of the case;

d. The existence of causation (causal verband) between the losses

is constitutional with the legislation being moveed to be tested;

e. It is possible that with the request of a request then

constitutional losses such as those that are postulate will not or no longer occur;

[3.8] Draw that based on the description in paragraph [3.7] above, for I'm sure the court needs

mechanism known as the integrated criminal justice system which

views the process of solving a criminal case as a single string

unity since investigation, prosecution, case-breaking, up to

settlement at the level of correctional institutions. So, not that system

88

The MHI Law Society) will be taking care of the outputs of functions that can result in difficult

and slow completion of existing problems;

That the investigation authority is performed by Prosecutors in

handling of criminal corruption cases cannot be released from aspects of

philosophical, historical, sociological, strategic environment, and yuridis;

3. Attorney General's description That according to the Supreme Attorney's Related Party, given the authority

The investigation to the Prosecutor in a criminal corruption charge is based on

considerations: experience, professionalism, and Capabilities; to reduce

control range; to anticipate early things that can

weaken the demands; and subvert the control function

interinvestigator;

4. Description of the Related People's Republic of Indonesia

That according to the Indonesian National Police Related, the consequences

a state of law (rule of law) specified in the principles

constitutionalism, must be clearly a legal certainty of either the terms

procedures and applications of law, so that it is not in violation of

the constitutional rights of any person, suspect, or defendant. Principles

built in Law No. 8 of 1981 on Law

Criminal events (KUHAP) are principles applicable in the System

Enforcement of Integrated Criminal Justice System (Integrated Criminal Justice System),

which outlined the differentiation of function and authority in the fieldbject matter, the Constitutional Court (subsequently called the Court), first needs to

consider the following things:

1. Whether the Court is able to check, prosecute, and disconnect

plea a quo;

2. Whether the applicant has a legal standing (legal standing) for

to request the testing of Article 30 Verse (1) of the letter of the Prosecutor Act;

AUTHORITY OF THE COURT