Key Benefits:
VERDICT Number 44 /PUU-XI/2013
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and last,
dropping the ruling in case of Test Number 31 of the Year
1999 on the Eradication Of Corruption Crimes As Amended
with Law Number 20 of 2001 on Changes To The Invite-
Invite Number 31 Year 1999 on Eradication Of Criminal Corruption Charges
against the Basic Law of the Republic of Indonesia in 1945 which
is submitted by:
[1.2] 1. Name: Ir. Samady Singarimbun
Place, date of birth: Medan, 5 May 1955
Work: Retired civil service
address: Cooperative complex Number B-20, Gas Road
Alam, Cimanggis, Depok, West Java
In this regard by Mail Special powers dated February 16, 2013
gives power to Ir. Tonin Tachta Singarimbun, S.H., advocate headquartered in ANDITA ' S LAW FIRM, Jalan Cipinang Jaya KK 48, East Jakarta, 13410, acting for and on behalf of the power giver;
Next is referred to as -------------------------------------------------------------------- applicant;
[1.3] Read the applicant's request;
Hearing the applicant's description;
Checking the applicant's evidence;
2. SITTING MATTERS
[2.1] In a draw that the applicant has submitted this undated application
April 2, 2013 which is accepted in the Constitution of the Constitutional Court (next
called the Court of Justice) on 9 April 2013 based on Akta
2
The receipt of the request file number 159 /PAN.MK/ 2013 and noted in
The Constitutional Case Registration Book with No. 44 /PUU-XI/2013 on the date
15 April 2013 which has been corrected and received in the trial on the date
30 May 2013, which is at the bottom of the following:
1. CONSTITUTION OF THE CONSTITUTIONAL COURT
1.1. Article 24 of the paragraph (2) of the 1945 Constitution on the Power of Justice, "Power
The judiciary is carried out by a Supreme Court and judicial body
which is below it in the general judicial environment, the environment
religious justice, military judicial environment, judicial environment
state efforts, and by a Constitutional Court";
Article 12 paragraph (1) letter a Law No. 4 of 2004 on
Power Judiciary:
"Constitutional Court authorized to prosecute at first level and
The final verdict is final for:
a. testing legislation against the State Basic Law
Republic of Indonesia in 1945";
1.2. Article 24C of the paragraph (1) of the Constitution of 1945, " Constitutional Court authorized
prosecuting at first and final level of the verdict is final
to test the Act against the Constitution of the Republic
Indonesia 1945";
Article 10 paragraph (1) letter a Act No. 24 of 2003 on
Constitutional Court (State Gazette RI Year 2003 Number 98,
Additional leaf of State of Indonesia Number 4316, subsequently called Act
MK) among others stated:
" (1) Constitutional Court authorized to prosecute at first level and
the final verdict is final:
(a) testing the legislation against the State Basic Law
The Republic of Indonesia in 1945, ...;
Based On The Things Above, The Applicant Has An Opinion. That the Constitutional Court ruled and Severed The Application Of The Act Against The 1945 Constitution.
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2. LEGAL STANDING (LEGAL STANDING)
2.1. PEMOHON is an Indonesian individual who owns
KTP Number 3276020505550024 (proof 13) and may submit a test
material bill a quo against the 1945 Constitution for having met the provisions
Article 51 of the paragraph (1) MK Act " PEMOHON is a party that considers
the rights and/or its constitutional authority is harmed by the prevailing
Act, i.e.,
1) the individual citizen of Indonesia;
2) the unity of the indigenous legal society as long as it is live and appropriate
with the development of the community and the principle of the Union Nation
Republic of Indonesia set in Undang-Undang;
3) public or private legal entities; or;
4) state institutions;
Next explanation of Article 51 of the paragraph (1)
The "constitutional right" is the rights of the Republic of Indonesia. which is set
in the Constitution of the State of the Republic of Indonesia in 1945;
The letter a
referred to "individual" including the group of people
has the same interests in question "rights
constitutionality" is the rights set out in the Act
Basic State Of The Republic Of Indonesia In 1945;
2.2. That of the Permanent jurisprudence of the Constitutional Court of the Number
006 /PUU-III/2005 dated 31 May 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007 dated September 20, 2007, then
The Constitutional Court has given the terms and limitations of
rights and/or constitutional losses arising out of the effective
Act as referred to Section 51 of the paragraph (1) MK Act must
meet five terms, namely:
a. the right and/or constitutional authority of the applicant
provided by the Basic Law of the Republic of Indonesia
In 1945;
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b. that the right and/or constitutional authority of the applicant
is considered by the applicant to have been harmed by a Invite-
Invite tested;
c. that the rights and/or constitutional authority of the applicant
that meant to be specific (specifically) and actual or at least
potential that a reasonable reasoning could be certain
would occur;
d. Due (causal verband) between the loss and
the enactment of the test-moveed Act;
e. It is possible that with the application of the application
then the loss and/or constitutional authority that is postured
will not or no longer occur.
2.3. That, as an Indonesian citizen after graduating from the Institute
The appeals technology directly works for the country's abdi-employees
Civil lands in the Ministry of Cooperative and Medium Small Effort with
the last post as Head of Section and at the end of his career before
the pension must undergo a verdict from the Supreme Court against the ruling
free which he has received at the time at the State Court
Rangkasbitung (proof 4) in JPU ' s indictment 2nd Primair based on
Article 2 of the Law Number 20 Year 2001 juncto Act
Number 31 of 1999 on the Eradication Of Corruption Criminal Corruption;
2.4. That, PEMOHON has no connection with the applicant
previously that has submitted a material test Section 2 of the paragraph (1) Invite-
Invite Number 20 Year 2001 juncto Act No. 31 Year
1999 on Eradication Corruption Criminal Code that the verdict
is granted or granted in part, or rejected or not accepted or
under the designation so legal standing The applicant is not
will lead to a material test effort this being ne bis in idem,
with respect to the test stone/constitutional rights equal to wish
previously quod nonagainst the 5th administrative document (evidence 9) which turned out
later days were fictitious.
The applicant to be part of a rolling fund assist system
(bukti-5) and by PN Rangkasbitung was declared free but by
the Supreme Court was declared to be proven based on consideration
page 136 of 140 (evidence 3):
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the "draw," that corresponds to valid evidence tools
Charged Ir. Samady Singarimbun with team member who
performs second check verification in upper field 5
(five) KSU, the defendant only reported in the team meeting
The administration's completeness is formal and not
reporting on the ground facts that 5 (five) KSU
there is no and not complete administratively "
paragraph 2.
s "Draws" ...: By intentionally giving the opportunity, power
an attempt or description as impediatable ....... " Paragraph 4.
The "draw" ..... given the defendant is not proven to be obtained
money and or property of that corruption criminal "
paragraph 5.
And in an indictment excerpt against no stating
The applicant does the deed as mentioned in
indictment of the Attorney and Perscales Judge Cassation of the Supreme Court,
because the 5 cooperatives are the currency of the state money with
making Fiktif KTP, making the deed of the establishment False operatives,
using the proximity of Minister Koperative and others. The indictments
quoted in this material test request are:
(proof 10): Dakwaan quotes against Drs. H. Fachri Hidayat, M. Si bin
H. SAFEI (Head of the Lebak Regency Cooperative Service) prison 4
year following a fine on Perkara Number 217 /Pid.B/2009/PN.RKB,
NAMA IR. SAMADY SINGARIMBUN IS NOT CALLED IN
THIS INDICTMENT
(proof 11): Dakwaan Quotes against Drs. Arifin Pardede (Assistant
Deputy in Kementrian Koperative and UKM) as the Acting Officer
Perbonding/Contract Deputy Field Production, Ministry of State
Koperative and UKM as the applicant's employer and who ordered
The applicant for a field visit, declared FREELY on
Putermination Number 21 /PID/2011/PT.BTN and JPU submitted Kasasi to
MARI, NAMA IR. SAMADY SINGARIMBUN IS CALLED IN
THIS INDICTMENT
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(proof 12): Dakwaan Quotes against Drs. Lili Gozali Alias Shifullah
Alias Lili Bin H. Gobang Ranawijaya penal prison 4 years following
fine on Perkara Number 401 /Pid.B/2009/PN.Rkb, NAME IR.
SAMADY SINGARIMBUN IS NOT REFERRED TO IN THIS INDICTMENT
Frasa " AGAINST THE LAW " 4.10.That, in a crime of criminal corruption the meaning of the phrase
" in the norm may be interpreted to be an act that
intentionally with intent or "opzet als oogbrands" (willpower
individually/consciously) or planned on its own and or
together.
4.11.That, meaning against the law would be no limit because
the law in question would mean negative law and positive law
thus " being a strategy against deeds
enriching and Next. Therefore the phrase "will" need to be
give conditional constitutional that there is no constitutional loss
to the applicant and other Government/State of Personnel;
The "TNI pilot" has an accident. due to not
according to Radar/Watchtower "will differ its meaning
with" TNI pilots who comply with the Radar/Supervis/Tower command
and have an accident "
the applicant who has declared the 5th co-operative unenviable granted
funds rolling and by superiors instructed to do 2nd survey
to retrieve administrative documents (deed of establishment and others),
thus there is an element forcing to perform,
while against the truth the administration document is not
be the authority The applicant to declare a false or original
throughout the document the administration has been through the process of
Head of the Lebak Regency Operations Service; If the applicant is not
perform the command of the superior then the element against the law will occur
while obeying an element's superior command against
its laws shift because it does not report existing facts in
field that the 5 (five) KSU is non-existing and incomplete
administratively.
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s (s) that, phrase 1) "against the law does the deed"
gives a different meaning to 2) "does the deed
against the law".
There must be against his law first after it is resumed
doing the deed whereas, 2) must have been his actions beforehand
a new first attested against his law.
The difference in meaning of the two phrases is resulting
contrary to the constitutional right of the applicant contained
in the norm in the phrase "against the law performing
deeds" as it can be interpreted arbitrary by
Prosecutor, KPK, Police and The judge set against
his law before testing his deeds means people already
found guilty on the matter of his actions has not been tested;
4.12.That, the element "against the law" is strongly opposed by some experts
the law and very influential in the law enforcement process
now. The reason for the side that rejects the element's expansion against
The law is that if the element "against the law" is defined broadly,
then the definition against the law materially (materiele
wederrechttelijawid) in criminal law is defined in the same
understanding "against the law (onrechtmatige daad)" in Article 1365
KUH Perdata and this is very contrary to the principle of legality that
in Latin, it is called: " nullum delictum nulla poena lege pravie
poenali"which in Indonesian criminal law its understanding has been
adopted and poured in Article 1 of the paragraph (1) of the Penal Code:
" a deed cannot be In-law, except in accordance with the "existing powers of the laws of the law".
4.13.That, based on the test stone then the phrase "against the law
does the deed" makes the absence of legal certainty because
full legal determination by the Prosecutor's power, power
Police, power The KPK and the power of Justice against
The applicant in this case the applicant has no power so
has no power against such power and therefore need
tested his material with the 1945 Constitution for loss The applicant will not be
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occurs due to legal norms as opposed to the constitutional
Article 1 paragraph (3) of the 1945 Constitution states "The State of Indonesia is the State
The Law" and in fact the phrase does not prove as well.
The existence of a law is that there is no balance
as the constitutional right of Article 28D (1) of the Constitution of 1945 and
by itself will be discriminatory against the constitutional rigg due to Carbon levels exceeded 2% due to
endangering human so that it cannot be made into briket
coal and next (proof 8) at the direction of the Minister orally
attended by deputies, assistant deputies, and cooperative administrators (power
or representing) and the applicant to allow The 5 co-operatives
assisted, and some time after the directive then the top
The applicant was ordered to the Lebak regency to take
the administration application of the funds rolling out of 5 (five) cooperatives and
idered itfollowing:
The Court's authority
[3.3] weighing that under Article 24C paragraph (1) of the 1945 Constitution, Section
10 verses (1) letter a Law No. 24 of 2003 on the Court
The Constitution as amended by Act No. 8 of the Year
2011 on Changes to the Law No. 24 Year 2003 concerning
Constitutional Court (State Sheet) Republic of Indonesia Year 2011 Number
70, Added Gazette Republic of the Republic Indonesia Number 5226, next
called the MK Act), as well as Article 29 paragraph (1) letter of the Law No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
2009 number 157, additional sheet of state Republic of Indonesia Number
5076, subsequently called Act 48/2009), one of the constitutional powers
The court is to prosecute at the first and last level of its verdict
is final to test the Act against The Basic Law;
[3.4] Draw that the applicant's plea is testing
constitutionality of the Act norm, in casu Section 2 of the paragraph (1) and Explanation
Section 2 of the paragraph (1) of the PTPK Act against Section 1 of paragraph (3), Section 27 of the paragraph (1), Section 28D
paragraph (1) and paragraph (2), and Article 28I of the paragraph (2) UUD 1945, so the Court
authorized to prosecute a quo;
The Occupation of Law (Legal Standing) The applicant
[3.5] A draw that under Article 51 of the paragraph (1) MK Act is and
The explanation, which may apply for testing of the Act
against the Constitution of 1945 is those who consider the rights and/or authority
the constitutional constitution granted by the 1945 Constitution is harmed by the enactment of an
Act, namely:
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 Republic of Indonesia
which is set in undang-Undang;
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c. Public or private legal entities;
d. state agencies;
Thus, the applicant in testing the Act against
The 1945 Constitution must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the required Act
testing;
[3.6] It is also that the Court has since the Court's termination
Constitution Number 006 /PUU-III/2005 dated 31 May 2005 and Putermination
Constitutional Court Number 11 /PUU-V/2007 dated September 20, 2007,
and subsequent rulings established that loss of rights and/or
authority constitutional as referred to in Article 51 of paragraph (1) Act
MK must meets five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the constitutional loss must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be confirmed
will occur;
d. the presence of causal relationships (causal verband) between the intended losses
and the expiring of the testing Act;
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;
[3.7] Draw that based on the description as it is on
paragraph [3.5] and paragraph [3.6] above, further the Court will consider the legal position (legal standing) the applicant in
a request that postulate the following:
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[3.7.1] That the applicant is a person of Indonesian nationals based on the Population Card (KTP) Number 3276020505550024 [vide evidence
P-13] which is also a retired Civil Service Officer (PNS) Ministry
Cooperative and Small Small Business;
[3.7.2] That the applicant postulate has a constitutional right set out in Article 1 of paragraph (3), Article 27 paragraph (1), Article 28D of paragraph (1) and paragraph (2), as well as
Article 28I paragraph (2) of the 1945 Constitution. According to the applicant of this constitutional right
has been harmed by the enactment of Article 2 of the paragraph (1) and the explanation of Article 2
paragraph (1) of the PTPK Act due to the legal uncertainty regarding
interpretation of the section a quo as well as his explanation that could result in prosecutors,
police, KPK, and judges within the special criminal justice sphere misapplied
the law;
[3.7.3] That the applicant has been convicted of being convicted of a felony. corruption related to the Decree of the Deputy Minister of State Koperating and
Small Business and Medium Production Field Number 98 /Kep/Dep.2/XI/ 2006
about the Recipient Cooperative Assignment and Fund Relief Manager
To Cooperate For Production Effort in the procurement field
The Coal Briket Printer Factory Stage II, dated November 27, 2006,
based on the Supreme Court Cassation Number 170 K/Pid.Sus/2011,
on May 27, 2011;
[3.8] It weighed that based on consideration in paragraph [3.7]
as well as associated with the Applicant Request above, the Court
argues that there is a constitutional loss that the applicant suffers from
the existence of Article 2 of the paragraph (1) and the explanation of Article 2 of the paragraph (1) of the PTPK Act and there
the causal link between the constitutional loss of the applicant with the
section a quo, so that according to the Court, the applicant has a position
law (legal standing) to apply for a quo;
[3.9] weighed that by because the Court of Justice is prosecuting
the a quo request and the applicant have legal standing (legal standing)
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to apply for a quo, next the Court will
consider the subject;
Subject to the request
[3.10] weighing in that the applicant's request is testing
constitutionality of the PTPK Law norm, namely:
Section 2 of the paragraph (1) Any person who is against the law commits an act of enriching
alone or anyone else or a corporation that can harm the financial
state or economy of the country, sentenced to a prison in prison for a lifetime
life or penultimate prison penultimate 4 (four) years and longest 20 (two
-year) and fine at least Rp. 200,000.00 (two hundred million rupiah)
and most Rp. 1.000.000.00 (one billion rupiah).
Invite the Basic State of the Republic of Indonesia in 1945, then called UUD
1945;
[3.2] A draw that before considering the subject's subject,
The Constitutional Court (later called the Court) was first going
consider:
a. The Court's authority to prosecute the a quo;
b. legal position (legal standing) The applicant to apply
a quo;
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Against both of these, the Court cons ermath of the human act
is clear and strict is prohibited so that it can therefore be prosecuted and convicted,
in accordance with the principle of nullum crimen sine lege stricta;
3. The concept against a formele is formele wederrechtelijk,
requiring lawmakers to formulate a carefully and
serinci possible (vide Jan Remmelink, Criminal Law, 2003:358).
terms to guarantee legal certainty (lex certa) or otherwise known
with the term Bestimmheitsgebot;
Draw that based on the above description, the concept against the law
materiel (materiele) wederrechtelijk), which refers to the law not written in
26
The size of the solubility, care and ingenuity of living in society,
as one justice norm, is an uncertain size, and
varies from one society environment. certain to the community environment
others, so that what is against the law in one place may be elsewhere
is accepted and recognized as something legitimate and not against the law, according to
the size of the known in the lives of the local people, as
delivered Expert Prof. Dr. Andi Hamzah, S.H. in the trial;
Draw that by hence the Explanation of Article 2 of the paragraph (1) Act
PTPK the first sentence, is an incontidable thing
the protection and guarantee of fair legal certainty contained in the Article
28D paragraph (1) of the 1945 Constitution. As such, the explanation of Section 2 of the paragraph (1) of the PTPK Act
along about the phrase " referred to 'against the law'
in this section includes the works against the law in the formyl sense
and in the material sense, that is, even if the deed is not set in
laws, but if the deed is considered
is despicable because it does not correspond to the sense of justice or the norms of life
social in society, then the deed can be Convicted ", must
stated contrary to the 1945 Constitution."
Based on the Court ' s deliberations, according to the Court,
although there is a basic difference of testing between the plea No. 003 /PUU-
IV/2006 with the plea a quo, i.e., Article 1 paragraph (3), Article 27 paragraph (1),
Article 28D paragraph (2), and Article 28I (2) of the paragraph (2) of the 1945 Constitution, but the request
The applicant on the testing of the constitutionality of Section 2 of the paragraph (1) and the Explanation
Section 2 of the paragraph (1) of the PTPK Act in its nature is the same as the request of a Number
003 /PUU-IV/2006 and has been considered by the Court in Putermination
Number 003 /PUU-IV/2006, July 25, 2006 so that the request
is ne bis in idem;
[3.14] weighed that against the applicant number 4 that is
The court declares every apparatus of the state/government who are convicted of
Article 2 paragraph (1) Act Number 31 of 1999 juncto Act
Number 20 Year 2001 on Eradication Of Criminal Corruption (Sheet
State of the Republic of Indonesia 2001 Number 134, Additional Page
Republic of Indonesia Number 4150) is a letter of the ruling The idlers that are
27
void for law as Article 197 paragraph (1) the letter f and paragraph (2) juncto
Section 143 paragraph (3) Act Number 8 of 1981 on the Book of Invite-
Invite the Criminal Event Law, according to the Court, it is unmount
with norm testing against UUD 1945;
[3.15] Draw that based on the above consideration, according to
Court, petition applicant ne bis in idem and not issue
norm constitutionality.
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concludes: [4.1] The court is authorized to prosecute the a quo; [4.2] The applicant has a legal position (legal standing) for
applying for a quo; [4.3] Request of the applicant ne bis in idem;
Based on the Basic Law of the Republic of Indonesia in 1945, Act No. 24 of 2003 on The Constitutional Court as amended by Act No. 8 of 2011 About the Change of Law No. 24 of 2003 on the Constitutional Court (State Gazette 2011 Number 70, Additional Gazette of the Republic of Indonesia No. 5226), and Invite-Invite Number 48 of the Year of Indonesia Power Of Justice (sheet Of State Of The Republic Of Indonesia In 2009 Number 157, Additional Sheet Of Republic Of Indonesia Indonesia Number 5076);
5. AMAR RULING
Prosecuting,
Declaring the applicant is not acceptable.
So it was decided in a Meeting of the Judges by nine Constitutional Judges, namely M. Akil Mochtar, as the Chairman of the Members, Achmad Sodiki, Hamdan Zoelva, Maria Farida Indrati, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim, Anwar Usman, and Arief Hidayat, respectively as Members, at on Monday, the third, in June, year two
28
thousand thirteen, and spoken in the Plenary Session of the Constitutional Court open to the public at Tuesday, the seventeenth, September, year two thousand thirteen, finished pronounced at 14.20 WIB, by The eight judges of the Constitution, namely M. Akil Mochtar, as the Chairman of the Members, Hamdan Zoelva, Maria Farida Indrati, Ahmad Fadlil Sumadi, Muhammad Alim, Anwar Usman, Arief Hidayat, and Patrialis Akbar, respectively as Members, with the present. by Rizki Amalia as the Panitera Replacement, as well as the Government or the represents, without being attended by the applicant or its power and the People ' s Representative Council or who represents.
CHAIRMAN,
ttd.
M. Akil Mochtar
MEMBERS,
ttd.
Hamdan Zoelva
ttd.
Maria Farida Indrati
ttd.
Ahmad Fadlil Sumadi
ttd.
Muhammad Alim
ttd.
Anwar Usman
ttd.
Arief Hidayat
ttd.
Patrialis Akbar
PANITERA REPLACEMENT,
ttd.
Rizki Amalia
the party states, should immediately adjust to the way
changes to the PTPK Act based on conceptual studies and
comprehensive in one entity of the legal system based on the 1945 Constitution.
... Considering that thus the Court judged indeed
there is a question of constitutionality in the first sentence of Article 2
paragraph (1) of the PTPK Act so that the Court should consider further things-
is the following:
1. Article 28D paragraph (1) recognizes and protects the constitutional right of citizens
to obtain certain legal guarantees and protection, with which
in the field of criminal law is translated as asas of legality loaded
in Section 1 of the paragraph (1) KUHP, that such asas is a single charge
will be a legal certainty in which persons may only be prosecuted and prosecuted for
the base of a written law (lex scripta)
has First there was;
2. It is thus demanding that a criminal act have an element against
the law, which must be in writing first has been applicable, which
formulating what deeds or aft
