Key Benefits:
various interpretations of the phrase "withheld" and "prisoner" in Article 197 of the verse
(1) the letter k of the KUHAP is not appropriate;
9. From examples of concrete cases above are seen that there is a multitafsir Article 197
paragraph (1) of the letter k KUHAP post MK Number 69 /PUU-X/2012 has
real-real inflicts legal uncertainty even as it makes
the enforcement apparatus laws have varying interpretations, so that
potentially in the certainty of law enforcement as a condition of the country's, canceling the letter "k" in Article 197 of verse (2) KUHAP,
while rejecting the Applicant Petition for testing of Article 197 paragraph (1)
letter k KUHAP;
It turns out that post-termination of the MK is instead a different interpretation of
Article 197 paragraph (1) letter k KUHAP or may also was called "misinterpreted"
by some parties so that it gives rise to multitapsir even
a legal state;
For some people including some law enforcement apparatus. because
The verdict of MK cancels the letter k in Section 197 paragraph (2) KUHAP, then
for the Putermination of the Supreme Court prior to November 22,
2012 that is when it is read Number 69 /PUU-X/2012, by some
that party Article 197 paragraph (1) letter k KUHAP is interpreted as still
5
beriaku includes for Supreme Court termination and Putusan-Putermination
The Court of State or High Court which when the accused is not
is being held. so that the verdict is considered null and void
the law;
The interpretation is compounded due to a misconception regarding the meaning
constitutional "withheld" and "prisoner" in Article 197 of the paragraph (1) the letter k KUHAP
which equated with the execution order of a legal ruling
fixed or idonization, as Article 197 of the paragraph (1) of the KUHAP letter is considered
as an execution order, then this erroneously misinterpretation is
the court is good State Court ruling, High Court until
Supreme Court ruling that does not contain The provisions of Article 197 paragraph (1) of the letter k
KUHAP are non-executable or cannot be executed;
Consequently, criminalized, criminalized before MK termination
Number 69 /PUU-X/2012 potentially to issue a problem verdict-
The verdict is each included if the verdict is in the verdict
The Supreme Court if it does not contain Article 97 of the paragraph (1) of the KUHAP k;
8. To further facilitate the understanding of the problem
the constitutionality of Article a quo. The applicant provides one example of a case
a concrete that can be advised that Article 1 of the paragraph (3) and Article 28D
paragraph (1) of the 1945 Constitution of the state of law and assurance of certainty
a fair law becomes broken, as is the case of the law. Unraveled the following;
After Decree Number 69 /PUU-X/2012 dated November 22, 2012 there
a state that raises new legal uncertainty related to the failure
The Supreme Court's execution of the Supreme Court Number 899 K/PlD.SUS/ 2012
dated November 22, 2012 which amar verdict declared refused
plea for Cassation by the Prosecutor General and by defendant Susno
Duadji;
While the Jakarta High Court Number
35 /PID/TPK/2011/PT. DKI dated November 9, 2011 cut the accused
guilty and sentenced to 3 years and 6 months in prison and fined Rp 200 million
subsider 4 months in confinement;
Earlier, sdr. Susno Duadji was snapped up by the State Court in status
not detained because the detention and detention authority of PN had been
depleted. In an appeal law effort, the High Court did not do
6
detention;
When broken up by the High Court, Susno Duadji's status was not withheld and
The High Court did not feel the need to conduct detention,
so in the High Court Termination no order to
the defendant is detained, remain in custody or be released;
Then the Supreme Court rejected the cassation of the Prosecutor's Prosecutions
General nor the Defendant. The Supreme Court ruling became a force
fixed law (inkracht van gewisjde) of course there was no more restraining terms
and no order for the accused to be held, remain in custody
or be released;
Due to a misinterpretation of Article 197 of the paragraph (1) the letter k KUHAP
as described earlier, then Convicted Susno Duadji declined
executed for the non executable reason and void for law
because There's no restraining order. This misinterpretation even briefly
made the prosecutor unable to perform his duties in accordance with Article 270
KUHAP to carry out his execution and parenation of the misinterpretation
was made the reason for the West Java Police. protecting the penal;
Based on the coverage contained in various mass media, the Commander of Purn
Susno Duadji and its legal powers refuse to be executed by the Prosecutor
the Great on the grounds of either the Supreme Court and the Putermination of the Supreme Court.
The High Court of Jakarta, both of which do not contain " orders so
The defendant is detained or remains in custody or released " as
referred to in Article 197 of the paragraph (1) of the letter k KUHAP;
Then on the grounds that the Constitutional Court's Constitutional Number
69 /PUU-X/2012 dated 22 November 2012 which invalidate Section 197 paragraph
(2) the letter k KUHAP is not retroactive, then General Susno Duadji and the power
The law interprets that the prosecutor should not execute
because the verdict is null and void;
On On 24 April 2013 the prosecutor did not successfully execute
The criminal verdict. Even Komjen (purn) Susno Duadji gets
the law of the law " from West Java Regional Police which makes
The prosecutor is impede his duty to carry out executions. In the meantime,
various plrights also have different opinions regarding
whether the criminal verdict is null or void for law or not related
7
interpretation differences over Section 197 paragraph (1) KUHAP post MK Number
69 /PUU-X/2012 are not retroactive;
That the prosecutor's inability to do its job is any more
the prosecutor's inability to be assured The public that his actions
carried out an execution is by law, indicating there is
a new issue of the norm Article 197 paragraph (1) the letter k KUHAP, and
according to the applicant this issue of uncertainty is due to the existn this pleas with the Request Case Number 69 /PUU-
X/2012 and why the subject should be checked by the Court, so that
may be the Court's consideration to state the authority
check, adiii and disconnect this case;
The request submitted by the applicant is different from the Request
Case Number 69 /PUU-X/2012 filed by Parlin The Riduansyah and
are properly checked and disconnected by the Court because;
A. Case number 69 /PUU-X/2012 tests the keselumhan Article 197
paragraph (1) of the letter k KUHAP, whereas the applicant is testing limited to the phrase
"withheld" and " prisoner ' in that section;
b. The request of the applicant was filed after the onset of the new post
The verdict of the case number 69/PUU-Xy2012 was a polemic and
a real interpretation difference to factually making the apparatus
law enforcement cannot. the KUHAP.
as well as the public distrust of the enforcer of the enforcement apparatus
the law, making the norm Article a quo potentially has uncertainty
the law should not be given a constitutional interpretation by the Constitutional Court;
39. According to the applicant, a multitaption of Article 197 paragraph (1) of the n by the Prosecutor
and the inability of the law enforcement apparatus to convince the public
regarding the "correct interpretation" of Article 197 of the paragraph (1) of the letter k off 1981 on the Law of the Law of Penal Event (the State Sheet of 1981 Number 76 and the Additional Sheet of the Country) 1981 No. 3209) is a conditional constitution (conditionally constitutional) of the Constitution of 1945 as long as it is defined as a ruling that has never been seen, has no legal value, has no power. laws and cannot be executed by prosecutors;
4. Ordered the loading of this verdict in the Republic of Indonesia News. Or if the Assembly of Justice of the Constitutional Court argues for another, please discontinue the adducary.
11
27. That against that request the Court rejected all
the request of the applicant with an amar Putermination Number 69 /PUU-X/2012 that
has been deciphed in the initial part of this plea;
28. That according to the applicant, the sound of the Court of Justice as in
the beginning indicates that the Court rejected the petitioners of the case
No. 69 /PUU-X/2012. which in point request that Article 197 paragraph (1)
letter k is declared conditional constitutional constitutional
(conditionally constitutionaf) against the 1945 Constitution, as long as that phrase is defined
as Lists the provisions of Article 197 of paragraph (1) the letter k of the KUHAP in
any ruling ruling is imperative and signed in
all judgment decisions on all levels of the courts (Courts
Negeri, High Court and the Supreme Court);
29. That according to the applicant, in the presence of such refusal, the Court
argues that the applicant's interpretation of the case Number 69 /PUU-X/2012 as
in the petitum is unfounded and has no legal reason, which
by hence rejected;
30. That according to the applicant, amar Putermination of the Constitutional Court Number
69 /PUU-X/2012 that overturned the letter k in Article 197 of the paragraph (2) KUHAP
does not mean the Court justifies the applicant's case Number
69 /PUU-X/2012 that implores In order for the provisions of Section 197 paragraph (1) of the letter k
KUHAP is interpreted as imperative and signing in all the rulings
the payment on all levels of the courts (State Courts,
High Court and Supreme Court);
31. That is, as it is known, the Constitutional Court of Justice Beriaku to
front and not retroactive as set out in Article 47 of the MK Act.
that reads, "The Constitution of the Constitutional Court obtained the legal force
has remained since its completion in an open pieno hearing to the public";
32. Thus, according to the applicant, Article 197 of the paragraph (2) of the Criminal Code is intact,
including the presence of the letter k in the section, for the decree
the applicant prior to the termination of the Constitutional Court, still beriaku
provisions Before MK Number 69 /PUU-X/2012 dated 22 November
2012;
33. That is like MK Number 69 /PUU-X/2012 that refused
A plea filed by Pariin Riduansyah who asked for an interpretation.
12
Article 197 paragraph (1) of the letter k KUHAP is imperative and mandatory in
all judgment decisions on all levels of the courts (Courts
Countries. Tinqgi Court and the Supreme Court), the applicant agrees
with the MK that the interpretation is unwarranted
law;
According to the applicant, Article 197 of the paragraph (1) the letter k of the KUHAP is imperative and
The mandatory is limited to the PN and PT ruling, and depends on the conditions
whether the time of the PN and PT are being read, the defendant is being held or
not; and whether the assembly of judges that examine the case feels necessary
does Detention for which is not withheld; or continuing detention
or acquit to the defendant who Status is under arrest, this
in accordance with the intent of Section 193 and Section 242 of the Criminal Code juncto section 21
KUHAP;
According to the Applicant Article 197 paragraph (1) the letter k KUHAP applies to the Termination
The Court of State and the Court High but not applicable to the Putermination
Supreme Court because after the Supreme Court ruling as a ruling
the final is no longer a detention of the forester if the verdict contains
the idlever;
According to the applicant, Article 197 paragraph (1) letter k KUHAP speaks of
detention, which is different meaning and not with respect to the sever or
execution of the criminal verdict that has inkracht;
With the rejection of that interpretation then Article 197 paragraph (1) of the letter k KUHAP
should be a constitutional article because it has been clear and give
the legal certainty without additional interpretation of the interpretation.
34. However, Putermination Number 69 /PUU-X/2012 does not provide
sufficient consideration of the reason for rejection of petitum pleas
The applicant Pariin Riduansyah for more consideration
regarding the reasons In this section, Section 197 of the paragraph (2) of the letter k of the Criminal Code, which is not
on the request of the applicant. This is then used by various parties
to twist the disconnect by retaking the interpretation
The actual case number 69 /PUU-X/2012 has been rejected;
35. In the midst of society there is an opinion that
due to non-receding and broken criminal rulings
prior to November 22, 2012, which did not contain a restraining order
13
is null and void, with the interpretation that the limit of the ruling is iuga
beriaku for the Supreme Court ruling of the cassation level as the verdict in
kracht. This opinion is first delivered by Prof. Dr. Yusril Ihza Mahendra
who also powers the law of the applicant Number 69 /PUU-X/2012 and
was used by Pum Susno Duadji to reject the execution of the party
the prosecutor's decision of the ruling. in kracht;
36. Ironically, the prosecutor was unable to perform a firm execution
because there was a swarm of interpretations like that and consequently failed to do
execution. It is said that this state of affairs raises legal uncertainty
and damages the legal state order as the state loses with the wrong interpretation;
37. While this may be seen as a matter of application
the law, however, the failure of the execution and strength of the ambiguity is ambiguity in
2. It states that the phrase ' letter of the judgment contained "among others" order that the defendant may be detained or remain in custody or be released " in Article 197 of the paragraph (1) of the letter of Law No. 8 of 1981 on the Acts of the Law of the Event Criminal (State Sheet 1981 Number 76 and Additional Gazette 1981 Number 3209) is conditional constitutio >verdict to him;
Thus, the execution of the criminal verdict that has acquired the force
the law is unhooked with the context of detention in Article 197
paragraph (1) letter k KUHAP, cause between incarceration with an idanness
has a different essence;
60. Thus, from the systematics of Article 193, Article 197 of the paragraph (1) letter k, and
Article 242 of the KUHAP, as well as view and compare it with the contents of BAB XVll
Second Part; Examination of the Cassation Level in the KUHAP, then clearly meanads, " If in the examination of the appeal level
The convicted defendant is in custody, then the court is high in
The verdict ordered that the defendant need to remain in custody or
released ";
51. Of the substance of the article above it is clear that Article 197 paragraph (1)
letter k KUHAP is an integral part of the Article
193 and Article 242 of the KUHAP;
52. Article 197 of the paragraph (1) of the letter k of the KUHAP when read together with Article
193 and Section 242 of the KUHAP shall be understood as follows:
The termination of the idation contains things with the following conditions:
− If it is not under arrest. A PN level judge may order
the defendant is detained throughout the eligible section 21 and there is
reason enough for that
− If withheld, a PN judge may assign the defendant to remain in
the prisoner or release him, if there is sufficient reason for it
− At the appeal level, if the defendant is detained, the judge PT ordered
that the defendant remain in custody or be released.
53. From the passage of the Articles, the philosophical basis of existence
Article 193, Article 197 of the paragraph (1) of the letter k and Article 242 is the guarantee
the status of detention for a defendant while undergoing the process
examination at each level. The absence of a guarantee of this detention status may
result in a ruling null and void in accordance with Article 197
paragraph (2) prior to MK Putermination Number 69 /PUU-X/2012, to the extent
that absence is not a result of the wealth of the or a mistake in writing;
54. From the passage of the Articles above, based on the grammatical interpretation
it can be concluded that the phrase "withheld" and " prisoner ' in Article 197 of the paragraph
(1) the letter k KUHAP refers to the definition of containment according to the KUHAP,
that is put the accused on a place (Hires, homes, cities) for
a certain and limited time, in interest of the examination if the examination
has been completed because the verdict has inkracht, no more incarceration exists
18
idanings (for a convicted verdict). Thus, the penntah
withheld/remains in custody is not related to criminal execution.
B. Systematic Interpretation
55. In conducting a systematic interpretation we can view the location of Section 197
paragraph (1) of the letter k KUHAP in the systematics of the KUHAP and compare it
with the chapters that have the same charge;
56. To perform a systematic interpretation, Section 197 of the paragraph (1) of the letter k KUHAP
must be associated with Article 193 of the Criminal Code in Chapter XVI: Examination
Court Session; Fourth Section: Opening and Disruption in the Event
Examination Ordinary, and Section 242 of the KUHAP in Chapter XVll; Legal Efforts
Ordinary; Part Parts; Examination of Appeals as well as paying attention
the location of the Articles in the systematics of KUHAP and compare it
with Chapter XVll Second Part; The Level of Cassation Check that is not
is a similar arrangement;
57. That based on the systematics of the KUHAP, then Article 193 of the KUHAP
is reserved for the termination of the PN level, while Article 242 of the KUHAP
is reserved for the Severing of the appeal level. As for the part of the cassation it is not
there is a similar order for a Supreme Court judge to order
in order for the accused to be detained, remain in custody or be released;
58. That based on the layout of Section 193, Article 197 of the paragraph (1) of the letter k, and the Article
242 KUHAP, by using a systematic interpretation, is associated with the
with a grammatical interpretation of the meaning of the containment according to the KUHAP:
in order examination interest, may be concluded that "the order to
the defendant is detained, remain in custody or waive" for the purpose of
for the High Court and High Court termination, and does not apply to
The Termination Supreme Court;
That the court in dropping the ruling, if the defendant does not detained,
may order that the defendant be detained, if fulfilled
provisions of Article 21 and there is sufficient reason for it or in matter
The defendant is detained, the court in dropping its verdict, may
assign the defendant to remain in custody or release him,
if there is sufficient reason for it (vide Section 193 of the Criminal Code), then it is set
further that the decree of the idation contains an order to be
the defendant is detained or remain in custody or be released [vide Article 197
19
paragraph (1) letter k KUHAP];
For the degree of appeal: If in the examination of the defendant's appeal level that
is convicted it is in custody, then the high court in its verdict
ordered that the defendant be The periu remains detained or released.
In Chapter XVll: Ordinary Legal Efforts, Second Section; Level Examination
Cassation, no provisions set regarding restraining order
or waive as well as Article 193, Section 197 verse (1) letter k KUHAP
and Section 242 KUHAP). This absence indicates that the detention was only
in the interest of the examination, in the sense of the trial process
still process, while if it had been the final verdict in the case,
The restraining order was not prodicated again because it has been an idation
with criminal discharges and no legal efforts (ordinary) again;
More in Section 66 paragraph (2) Act No. 14 of 1985 on
Supreme Court as amended by Law Number 5 of the Year
2004 and amended last with Law No. 3 Year 2009 on Changes
Second on Law No. 14 of 1985 on the Supreme Court, determined
that the review request returned not to suspend or
stop the execution of the court ruling.
59. Further, Article 197 of the paragraph (1) of the letter k of the KUHAP is not directly related to
the execution of the idlects. Execution of a law-strong criminal verdict
remains an authority and order under the Act
to the Prosecutor as referred to as Article 270 of the Criminal Code;
Article 270 of the Criminal Code: Implementation of the court ruling which have obtained a legal force
remains done by the prosecutor, for which the panitera sends a copy of the letter
48. After that, to obtain a comprehensive grammatical understanding
over the phrase "withheld" and "prisoner" in Section 197 of the paragraph (1) of the letter k KUHAP,
there is also the meaning "withheld" and "prisoner" with the Article
in that Article 193 and Article 242 of the KUHAP.
49. Article 193 of the KUHAP reads as follows:
(1) If the court argues that the defendant is guilty of performing
a criminal act that is impediated to him, then the court
is dropping the criminal >
Its explanation, which can act as a applicant in testing an
Act against the Constitution of 1945 is those who consider the right
and/or its constitutional authority to be harmed by the enactment of the Invite-
Invite which is required to test, that is:
a. Individual citizens of Indonesia (including groups of people
have common interests);
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 Republiined" and "prisoner" referred to is the detention of the
KUHAP of the placement of a suspect or a defendant in a specific place by
the investigator or the public prosecutor or judge with his repressors
detention of state custody, home detention, urban detention which
is the State of the State Court Judge, the High Court Judge,
Supreme Court Justice who admised the case for interest
first-degree examination, appeal or cassation as set in
Article 1 Number 21, Section 21 juncto Section 22 juncto Section 26 juncto Section 27
juncto Article 28, Section 193 and Section 242 KUHAP "
IV. Conclusion
70. That in order not to open any other interpretation of Article 197 of paragraph (1) letter k
KUHAP, then replace the Court Applicant need to provide an interpretation
the constitution is wired for the phrase "withheld and" prisoners ", with the interpretation of
both phrases It would not be open-open for various parties to
avoid execution and not open any potential conflict between the authorities
law enforcement who has their own interpretation
V. Petitum
Based on the reasons above. Please to
The Constitutional Court of Justice Constitutional Court to cut off as follows:
1. Accept and grant the entire request of the Act
The applicant;
2. Stating the phrase "withheld" and "prisoner" in Article 197 of the paragraph (1) letter k
KUHAP is conditional constitutional to be interpreted as "withheld"
and "prisoner" referred to as staging by KUHAP:
placement a suspect or a defendant in a particular place by an investigator or
A public prosecutor or judge with his represser of house arrest
24
state custody, home detention, municipal detention that is
authority of the State Court Judge, High Court Judge, Judge
Supreme Court prosecuting case for inspection purposes
level the first, the appeal or the cassation as set in Article 1 of the figure
21, Section 21 juncto Article 22 juncto Article 26 juncto Article 27 juncto Article 28,
Article 193 and Section 242 KUHAP;
3. Stating the phrase "withheld" and "prisoner" in Article 197 of the paragraph (1) letter k
KUHAP has a binding force throughout constructs that "withheld"
and "prisoner" referred to as staging by KUHAP are
placement a suspect or a defendant in a particular place by an investigator or
a public prosecutor or a judge with his repressor of a house arrest
state custody, house arrest, municipal detention that is
the authority of the Judge of the State Court, Judge of the High Court, Judge
Supreme Court of justice to justice for justice. examination interests
first level, appeal or cassation as set in Section 1 figure
21, Section 21 juncto Section 22 juncto Section 2670, Article 27 juncto Article 28,
Section 193 and Section 242 KUHAP;
4. Ordered the loading of this termination in the News of the Republic of the Republic
Indonesia as it should be.
Or if the Constitutional Court of the Constitutional Court argues otherwise, please
the verdict is in its fair (ex aequo et bono).
[2.2] weighed that in order to prove its control, the applicant
submitted a letter of letter proof/writing that has been given a proof of P-1 proof until
with the P-4 evidence as follows:
1. Proof of P-1: Photocopy Act No. 8 of 1981 on
Criminal Event Law;
2. Evidence P-2: Photocopy of the Population Card on Taufik Basari's name;
3. Evidence P-3: Photocopy of Jakarta High Court Decision Number
PTJ. PANKUM 1063 /PH/2002 about the Rapture As
The Practice Lawyer, dated October 31, 2002;
4. Evidence P-4: Photocopy of the failure of the execution of Susno Duadji by
Prosecutor;
25
[2.3] weighed that in order to shorten the description in this ruling,
then everything indicated in the news of the trial event has been contained
and is an inseparable part of this ruling;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant is
application of the constitutionality testing of the phrase "withheld" and"prisoners" in
Section 197 paragraph (1) letter k Act No. 8 of 1981 on the Law
The Criminal Event (later called KUHAP) stated, "Letter of the ruling
the idlers load: ... k. order for the defendant to be detained or fixed in
the prisoner or be released" against Article 1 of the paragraph (3) and Article 28D Invite-
Invite the State of the Republic of Indonesia in 1945 (subsequently called UUD
1945);
[3.2] Draw that before considering the subject matter,
The Constitutional Court (hereafter called the Court) first will
consider first the following things:
a. The Court's authority to prosecute a quo;
b. legal (legal standing) applicant to apply a
quo;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] Is weighing that Under Article 24C of the paragraph (1) of the Constitution of 1945, Article 10
paragraph (1) of the Law No. 24 Year of 2003 on the Constitutional Court
as amended by Law No. 8 of 2011 on
Changes to the Number Act 24 Years 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia) 2011 Number 70,
Additional Gazette Republic of Indonesia Number 5226, further called
Act MK), Article 29 paragraph (1) letter a Law No. 48 Year 2009 on
Justice Power (Republic of the Republic of the Republic) 2009 Indonesia Number
157, Additional Gazette Republic of Indonesia No. 5076), one
Constitutional authority of the Court is testing the Act against
26
The Basic Law;
[3.4] Draws That The Applicant's plea is regarding the testing
constitutionality of the Act in casu the phrase "withheld and prisoners" which
is listed in Article 197 paragraph (1) of the letter k KUHAP against UUD 1945, so
The court of law for prosecuting a quo;
Legal Standing (Legal Standing) the applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act as well as needs to be assertive,
given the constitutional interpretation. And it's confirmed to be the understanding,
69. The Constitutional Court's ruling on the applicant may be
a guideline for the understanding of a part of society, including those
declaring itself a legal expert, which currently misunderstands the norm
phrase "withheld." and "prisoner" in Article 197 of the paragraph (1) of the letter k KUHAP, and
23
to b onsidered valid and valid
until there is another court ruling that is authorized to cancel it;
[3.14] A draw that is based on such consideration, according to
the Court, the phrase "withheld" and "prisoner" in Article 197 of the paragraph (1) letter k
KUHAP does not need to be interpreted any more. The request of the applicant requesting
a constitutional interpretation of the phrase "withheld" and "prisoner" in Article 197 of the paragraph
(1) the letter k is intended to ensure that the court ruling that
does
30
Court opinion
[3.11] Draw that before considering the subject,
The court needs to quote Article 54 of the MK Act stating, "Court
The Constitution may request a statement. and/or the meeting treatises with respect
with the application being checked out to the Consultative Assembly
People, House, Regional Representative Council, and/or President " in doing
the testing of a Act. In other words, the Court may
request or not to request the captions and/or meeting treatises in respect of
with the application being examined to the Consultative Assembly
People, House of Representatives, Council The Regional Representative, and/or the President,
depends on the urgency and relevance. Due to the legal issue
in the a quo request, the Court sees no urgency
and its relevance for requesting information and/or meeting treatises from the Assembly
People's Consultative Assembly, Council The People's Representative, the Regional Representative Council,
and/or the President, so the Court cut the a quo without
first hearing of the People's Consultative Assembly, Council
The People's Representative, the Council. Regional Representative, and/or President;
[3.12] Draw that against The request of the applicant, a panel of judges at
a hearing on May 15, 2013 has given advice to the applicant, among other
that the applicant in his application's improvement elaborated with
clearly the question of the constitutionality of the be the subject of the applicant
related to the article, not about the debate arising in
the public related to the Constitutional Court Decree Number 69 /PUU-X/2012,
date 22 November 2012, but it turns out The applicant is in an improvement
his application still has not outlined the problem The constitutionality of which
referred to [vide of the applicant's request is dated April 26, 2013 in
figures 8 pages 6, figure 34 to 38 pages 11 and pages
12, figure 64 and 65 page 18, figure 67 page 19];
[3.13] A draw that after the Court checked in with the witness
the applicant's request, and the letter-written evidence submitted by the applicant,
according to the Court, the subject matter of the applicant is the phrase "withheld"
and "prisoners" in Section 197 of the paragraph (1) of the letter k KUHAP which the applicant says
31
the phrase contains legal uncertainty as it decomposes in
various opinions and views that are evolving in society. According to
The court of Article 197 paragraph (1) letter k and Section 197 of the paragraph (2) of the letter "k" KUHAP
has been considered and disconnected by the Court in Putermination Number
69 /PUU-X/2012, dated 22 November 2012. In the a quo ruling
argues that Article 197 of the paragraph (2) of the letter "k" is in conflict with the Constitution
1945, therefore it has no binding legal force, so the ruling
a criminal court that does not contain "k". order for the defendant to be detained or
remain in custody or be released" is not by itself null and void.
Further constitutional questions are submitted by the applicant in
a request is whether it is meaningful that before the fall
The Constitutional Court Decree Number 69 /PUU-X/2012, dated November 22
2012, the penal verdict that does not contain "orders for the defendant to be detained or
remain in A prisoner or release" becomes void by law? In this case,
there are two developing opinions. The first opinion states that
the ruling is null and void because the Constitutional Court's termination is not
retroactive but applies to the (prospective) front. A second opinion states
that the ruling is not itself null and void due to the phrase
"withheld" and "remain in custody" referred to in Article 197 of the paragraph (1)
the letter k KUHAP is withheld and remains in prisoners during criminal cases
that process or take place in the State Court, the Court of Appeal,
or the cassation, and is not intended for a ruling that has obtained
the power of the law remains. This issue is asked by the applicant
which opinions of both opinions are constitutionally
justified;
That regarding this, it has been considered by the Court in
the consideration of the Discourse. The Constitutional Court Number 69 /PUU-X/2012, among others,
in paragraph [3.10.4] as follows:
" ... as has been determined in Article 197 of the paragraph (2) Act 8/1981 is
it is true that the verdict is declared null for the sake of law is a ruling that
since it was originally thought of never there is (never exist) so not
has any power (legally null and void, nietigheid van rechtswege).
Nevertheless it must be understood that a court ruling must be
32
is considered true and valid according to law and therefore binding
the law also against the party referred to by the ruling before there is
Another court ruling that declared the battness of the law. The verdict. More
again when a dispute over the existence of a verdict,
corresponds to the positive meaning of tying it to a judge's ruling (res judicata pro
veritate habetur). Associated with that description then the exact thing is
The ruling is valid and binding. The existence of a rucness about the ruling
although it is based on something of the norm that the applicant says is quite bright
benderang, but legally it must be considered not that, as for
its limitations are still It takes a verdict. Something that is not or not
clearly cannot abort the existence of something that has been clear. In order
protection against human rights, the principle of the state of law gives the opportunity
to conduct legal efforts of resistance or appeal or cassation or
review of the ruling court [vide Article 1 number 12 Act
8/1981] up to surveillance and observation to obtain
certainty that the court ruling is executed as should be [vide
Section 280 paragraph (1) Act 8/1981] ";
Based on those considerations, it is clear that the court ruling
which already gains a fixed legal force, should be cP is the detentions performed during the trial process
in order interest of a hearing whose application depends on
circumstances;
Based on those reasons above, the applicant pleaded with
the court to declare the phrase "withheld" and " detainees"listed in
Section 197 paragraph (1) of the letter k KUHAP is conditional constitutional
construed that"withheld"and" prisoner" referred to is detention according to
KUHAP, which is the placement of a suspect or a defendant in a specific place not list Article 197 of the paragraph (1) The letter k before the verdict
Court Number 69 /PUU-X/2012, November 22, 2012 is not with
itself null and void, has been answered in the ruling No. 69 /PUU-
X/2012;
[3.15] Draw that based on the legal considerations above,
according to the applicant ' s Court of Appeal ne bis in idem;
33
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded that:
[4.1] The court is authorized to prosecute the applicant's plea;
[4.2] The applicant It has a legal standing (legal standing) for
applying for a quo;
[4.3] Petition Applicant ne bis in idem;
Based on the Basic Law of the Republic of Indonesia Year
1945, Law No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of the Year 2011 on
Changes to the Law No. 24 of 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia of 2011 Number 70,
Additional Sheet Republic Of Indonesia Number 5226), And Invite-
Invite Number 48 Of 2009 On The Power Of Justice (state Sheet
The Republic Of Indonesia 2009 Number 157, Additional Sheet Of State
Republic Indonesia Number 5076);
5. AMAR RULING
Prosecuting,
Declaring the applicant is not acceptable;
So it was decided in a Meeting of Judges by nine
The judge of the Constitution, M. Akil Mochtar, as the Chairman of the Board of Justice, as the Chief of the Judges. Members,
Achmad Sodiki, Hamdan Zoelva, Arief Hidayat, Harjono, Ahmad Fadlil Sumadi,
Anwar Usman, Muhammad Alim, and Maria Farida Indrati, respectively as
Members, at on Monday, the third, in June, year two Thousand thirteen,
and spoken in the Plenary Session of the Open Constitutional Court to the public
at on Wednesday, the twenty-fifth date, September, year two thousand three
11, finished pronounced at 14.00 WIB, by nine Constitutional Judges, namely
M. Akil Mochtar, as Chairman Arrested Members, Hamdan Zoelva, Arief Hidayat,
Harjono, Ahmad Fadlil Sumadi, Anwar Usman, Muhammad Alim, Maria Farida
Indrati, and Patrialis Akbar each as Members, accompanied by
34
Sunardi as Panitera Switcher, as well as attended by the applicant, Government
or representing, and the House of Representatives or the representing.
CHAIRMAN,
ttd.
M. Akil Mochtar
MEMBERS,
ttd.
Hamdan Zoelva
ttd.
Arief Hidayat
ttd.
Harjono
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
Patrialis Akbar
PANITERA REPLACEMENT,
ttd.
Sunardi
