Key Benefits:
VERDICT
No. 78 /PUU-XI/2013
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters on the the first and last level,
dropped the verdict in the case of Testing Act No. 8 In 1981 on the Law of Criminal Events against the Country Basic Law
Republic of Indonesia Year 1945, submitted by:
[1.2] 1. Name: Anwar Sadat, ST., aka Sadat bin Satim
Job: Private Employee (executive Director of the Indonesian Life Environment Vehicle-WALHI-Sumatra
South)
Address: Jalan Batang Hari II, Number 2759, RT. 42, RW 11, Kelurahan Elephant Lebong, Sematang Subdistrict
Bpersons, Kota Palembang/Villa Purnama
Kelurahan Lebong Elephant, Sematang Subdistrict
Bpersons, Palembang City
As -------------------------------------------------------------------------------------Applicant I;
2. Name : Society Society for the Renewal of Criminal Justice, represented by Anggara, SH., and Syahrial Martanto Wirjavan, SH.,
Address: Roads Cempaka Number 4, Market Week, South Jakarta
As ------------------------------------------------------------------------APPLICANT II;
In this case based on the Special Power Letter dated June 20, 2013 gave power to Revements Wagiman, SH., Andi Muttaqien, SH., Wahyudi Djafar, SH., Erasmus Napitupulu, SH., Supriyadi W. Eddyono, SH., Alex Argo Hernowo, SH., Fatilda Hasibuan, SH., Judianto Simanjuntak, SH., Iki Dulagin,
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SH., MH., Tandiono Bawor, SH., and Munhur, SH., Advocates/Public Attorneys/Assistant Public Attorneys, on Public Interest Lawyer Network (PILNet) Indonesia, which addresses in the Standby II, Number 31, West Pejaten, Market Week, South Jakarta, acts individually and together for and on behalf of the power-giver; Furthermore, it is referred to as ------------------------------------------------------para The applicant;
[1.3] Read the invocation of the applicant;
Hearing the Applicant;
Checking the petitioner's evidence;
2. SITTING LITIGMENT
[2.1] A draw that the petitioners have applied for
dated 1 August 2013 accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) on 29 July 2013
based on the Certificate of Accepting File Request Number 376 /PAN.MK/ 2013 and
has been noted in the Book of Constitutional Register on August 20
2013 with No. 78 /PUU-XI/2013, which has been corrected and accepted inside
The trial on September 17, 2013, at the point of outlining the matter-
terms as follows:
I. Introduction
Prajudiciary is one of the sub systems in the criminal justice system,
its presence in Indonesian law is the legal progress of the law
of Indonesian penal events after the colonial legacy recorded In HIR.
The pretrial pretrial in the Code of Criminal Events of Indonesia (KUHAP)
is considered a form of horizontal control of judicial institutions against
executive power in this case the function of investigators to conduct forced efforts.
In the KUHAP, Prajudiciary is set on Chapter IX of Section 77 to the
Article 83. Looking at those articles, the provisions of the pretrial
very minimal, no detailed mechanism concerning the proceedings in the hearing
pretrial which then implications on the apparent obscurity of the event
where that is used. This obscurity then became one of the causes that
has implications for the inefficiency of the pretrial as a complaint institution
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for the parties who feel aggrieved for the country's actions that
made a forced attempt in Indonesia.
In the middle of an attempt to seek the justice of the parties who feel aggrieved against
forced attempts, issues related to pretrial practices derived from
setting up on Section 82 of paragraph (1) letter b, letter c, and letter d KUHAP. Related
Article 82 paragraph (1) letter b and letter c KUHAP, in practice there has been a multi
interpretation and multi interpretation that elicits the iruniformity of the event law
prejudicial in Indonesia. Precisely, the disformity of the interpretation is related to
the phrase "at least seven days the judge must have dropped
the verdict". In practice, this undiversity has resulted in
unequired by legal certainty and even threatening constitutional rights
citizens regarding the fulfillment of legal certainty and justice in
Indonesia.
In the meantime, Article 82 of the paragraph (1) of the d of the Penal Code states that the request
pretrial (which has not been severed) died, at the time of the criminal case
the subject was already begun to be examined by the court. The application of the application
pretrial prior to the decision of a fixed magnitude by the judge
pretrial, resulting in an openly constitutional right of the citizens
the state is threatened to obtain legal certainty, the taming and the
The protection in advance of the law as in Article 1 of the paragraph (3) jo.
Article 28D paragraph (1) juncto Article 28G paragraph (1) of the 1945 Constitution.
The existence of a pretrial in the Indonesian penal legal system has a relation
strongly with the efforts of human rights juxers. In terms of
the human rights issue of its own, Indonesia has reached progress
with the amendment to the Indonesian Constitution. In connection with this
anyway, it is important to see if the pretrial arrangement has been
to guarantee human rights as a legal state or instead make it a guarantee
to be blurred. In the framework of good law enforcement in a sense that
is able to meet the terms of justice and legal certainty, then it takes effort
to realize the laws of law of criminal events that
in accordance with the legal order and human rights.
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Therefore, in order to further ensure a fair legal certainty, then it is important
for the applicant to present this application before the Assembly
The Justice of the Constitutional Court.
II. Constitution of the Constitutional Court
1. That Article 24 paragraph (2) of the Third Amendment of the Constitution of 1945 states
"The judicial power is carried out by a Supreme Court of Justice and the body
the judiciary under it and by a Constitutional Court";
2. That further Section 24C paragraph (1) of the Third Amendment of the Constitution of 1945
states, " The Constitutional Court is authorized to prosecute at the first and last degree
of which the verdict is final to test the Invite-Invite against The Basic Law, severing the dispute of authority
the state agencies whose authority is granted by the Invite-Invite
Basic, severing the dissolution of the political party and severing the dispute
about the outcome of the Election ";
3. That under the above provisions, the Court of Contitle
has the right or authority to conduct the testing of the Invite-
Invite against the Constitution of 1945 which is also based on Article 10 of the paragraph (1)
Act Number 8 2011 on Changes to the Invite-
Invite Number 24 Year 2003 on the Constitutional Court which
states, " Constitutional Court of law is prosecuting at the rate
first and last of its verdict is final to : (a) test
legislation against the Basic Act Republic of Indonesia
Tahun 1945 ";
4. That the Constitutional Court was formed as a constitutional guardsman institution
(the guardian of constitutison). If an Act contains
or is formed in conflict with the constitution (inconstitutional), then
The Constitutional Court may be an annulled by canceling
the existence of the Act is thoroughly or as a result;
5. That as a constitutional guard, the Constitutional Court is also authorized
provides an interpretation of a provision of the provisions of the Act of Invite-
Invite to conformity with the values of the constitution. The Constitutional interpretation
The Constitution on the constitutionality of articles of the Act
is the only interpretation (the sole interpreter of constitution) which
has the power of the law. And so against the passages that have
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ambiguous, obscure, and/or multi-interpretation meanings may also be asked
The interpretation is to the Constitutional Court;
6. That under the MK Act No. 8 of 2011 concerning
Changes to the Law No. 24 of 2003 on the Court
Constitution, Constitutional Court authorized to conduct testing
against Article 82 of the paragraph (1) The letter b, letter c, and the letter d Act
No. 8 Year 1981 on the Law of Criminal Events promulred on
December 31, 1981, on the State Sheet of the Republic of Indonesia
in 1981 Number 76, additional sheet of state Republic of Indonesia
Number 3209.
7. That based on the rules above, then the Court
The Constitution is authorized to examine and prosecute this plea;
III. The Legal Position Of The Petitioner
8. That the recognition of every Indonesian citizen to submit
an application for testing the Act against the Basic Law
of the Republic of Indonesia in 1945 is one indicator
of the development of the state of Indonesia. positive, reflecting on the presence of
progress for strengthening the principles of the State of Law;
9. Viewing the statement then the Constitutional Court, functioning between
another as "guardian" of "constitutional rights" of any citizen
Republic of Indonesia. The Constitutional Court of the Republic of Indonesia is
the judicial body in charge of maintaining human rights as a right
the constitutional and legal rights of each citizen. With this awareness
The applicant decides to apply for Test testing
Article 82 paragraph (1) letter b, letter c, and contradictory letter d KUHAP
with spirit and soul as well as the chapters contained in the Invite-
Invite Basic State of the Republic of Indonesia in 1945;
10. That under Article 51 of the paragraph (1) of the Constitutional Court Act juncto Article
3 Rules of Constitutional Court Number 06 /PMK/2005 about the Guidelines
Event In the Perkara Testing Act states that:
The applicant is parties that assume the right and/or authority
constitutionality are harmed by the enactment of the Act:
a. Individual citizens of Indonesia;
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b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Unity State
The Republic of Indonesia that is set in Undang-Undang;
c. the public or private legal entity;
d. state agencies;
11. That in the Explanation of Article 51 of the paragraph (1) of the Constitutional Court Act
it is stated that "the constitutional right is the right-
the rights set forth in the 1945 Constitution";
12. That is based on the Constitutional Court Number 006 /PUU-
111/2005 and the subsequent Constitutional Court rulings,
The Constitutional Court has determined 5 terms regarding the loss
constitutional as referred to in Article 51 of the paragraph (1) of the Act
The Constitutional Court, as follows:
a. there must be a right and/or constitutional authority of the applicant that
granted by the 1945 Constitution;
b. Such rights and/or constitutional authority are deemed to have been
aggrieved by the enactment of the laws which are being treated for testing;
c. the rights and/or constitutional authority is
specific and actual, At least one of the candidates is potential that
reasonable reasoning can be certain to occur;
d. there is a causal link (causal verband) between the rights loss
and/or constitutional authority with the Act that
is moveed for testing; and
e. It is possible that with the application of the request, then
the rights and/or constitutional authority that the control is controlled is not
will or no longer occurs;
13. That the applicant I is an individual citizen of Indonesia (proof P -2) has ever applied for a prejudicial application as
in question the provisions are being referred to in the a quo;
14. That the applicant I is a citizen of Indonesia, is the Director
Executive of the Indonesian Environment Indonesia-WAIHI-South Sumatra,
who always accompanies the people of South Sumatra's Ogan Ilir
to do the fight for the restore the rights to its land, in terms of
this which is annexed by PTPN VII Sweet Love, Ogan Ilir, South Sumatra;
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15. That one of the actions in fighting for the rights to the land that
was accompanied by the applicant I was the action in front of the Regional Police headquarters
South Sumatra conducted on 28 January 2013. This action
is part of the Indonesia Environment Wahana struggle
(WALHI) of South Sumatra and the farmers of the victims of the Iahan PTPN VII appropriation
to regain its land. However, this action ended with
violence, assault, arrest, and incarceration carried out
South Sumatra Regional Police apparatus against farmers and
escorts, including the applicant I. The applicant I was accused of having done
Criminal action "participated in the destruction" as set
in Article 170 of the Criminal Code (bukti-P-3) 16. That a result of arbitrary arrest and arrest that
was carried out by the South Sumatra State Police apparatus,
The applicant I applied for a prejudicial application to the Court
The State of Palembang. This prajudicial application was submitted to the applicant I on
18 February 2013. The applicant I presume that the capture process
and the detention of the South Sumatra Regional Police do not
in accordance with the procedure and mechanism of arrest and arrest
as determined in the KUHAP. (proof P-4) 17. That at the time of the middle-trial examination process in
the Palembang State Court, it turned out to be the subject of the failed matter
to the applicant I began to be arrased in the Court of Palembang. Thus,
based on the provisions of Article 82 paragraph (1) of the letter d KUHAP,
The Assembly of Judges that judges the proposed prejudicial application
The applicant I decide that the Prajudicial Plea a.n Applicant I
"Autumn". This verdict is based on the grounds that the subject matter
the applicant as the defendant has begun to be arrased. (vide bukti-P-4) 18. That due to the pretrial verdict, the applicant I cannot
find out whether or not the arrest process and
the detention carried out by the Regional Police of South Sumatra.
Consequently, the rights of the Applicant as Citizens of the country are broken. 19. That arrest and arrest of the applicant I should be
based on sufficient preliminary evidence and sufficient evidence. Because
The Pretrial plea filed by the applicant I was broken down,
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then the status of the applicant I as a Suspect and also the arrest process
and the detention of the applicant I cannot be tested in Prajudiciary. 20. That the applicant shall be entitled to a guarantee of a fair legal certainty
as warranted in Article 28D of the paragraph (1) of the Constitution of 1945, but with
the prajudicial application of the applicant I has caused
The applicant is not obtaining certainty about whether the process
arrest and detentions performed against the applicant I have
in agreement with the mechanism and procedures that have been established by
KUHAP. 21. That the applicant I is entitled to the protection of dignity, a sense of security and
protection from the threat of fear as warranted in the Article
28G paragraph (1) of the 1945 Constitution. One manifestation is the applicant I
against the attempted arrest and imprisonment of him through
the Prajudiciary institution but due to the provisions of Article 82 of the paragraph (1)
the letter d KUHAP request the applicant I was aborted. Thus the effort
restored the dignity and honour of the applicant I became unattainable. 22. That because of the applicant I as an activist for life and rights
Human Rights has a huge potential again conflict with the law and
most likely the Arrest and Imprisonment of which is authorized-
Authorities return then the applicant I has the potential loss of will
re-refutable the safe and protection rights of the threat
fears as warranted in Article 28G of the paragraph (1) of the 1945 Constitution. 23. Therefore the constitutional rights of the applicant I guaranteed in Article
28D paragraph (1) and Article 28G paragraph (1) of the Constitution of 1945 have been broken by
the provisions of Article 82 of the paragraph (1) of the letter d KUHAP 24. That the applicant II is a private legal entity in the form
society and formed under the law of the state of the Republic of Indonesia
(proof P-5) and has passed its Founding Act through SK Ministry of Law and Human Rights Number AHU- 239.AH.01.06. 2011 on
Ratification Of The Penal Justice Society Society
(proof P-6) is the applicant who has a legal standing and uses his right to apply this request with
using organization standing procedures (legal standing);
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25. That the applicant II has a legal position (legal standing) as
The applicant of testing the Act because there is a cause of cause
due (causal verband) by the enactment of the Testing of Section 82 paragraph (1)
letter b, The letter c, and the letter d KUHAP so that it led to the right
the constitutional Pemapplicant II was harmed; 26. That the doctrine organization standing or legal standing is an
event procedure not only known in doctrine but also
has been embraced in a variety of perinvitation regulations in Indonesia, such as
Law No. 23 of 1997 on Environmental Management
Life, Act No. 8 of 1999 on Protection
Consumer, and Act Number 41 of 1999 on
Forestry; 27. That in the judicial practice in Indonesia, legal standing has been accepted and
is recognized as a mechanism in the search for justice, which
can be proved among others: a. In the ruling Constitutional Court No. 060 /PUU-II/2004 on
Testing Act No. 7 of 2004 on Resources
Air against UUD 1945;
b. In the Decree of the Constitutional Court Number 003 /PUU-III/2005 on
Testing of Law Number 19 of 2004 on Redemption
Government Regulation Law Number 1 of 2004
on Change of the Act Number 41 of 1999
about Forestry to Act against Constitution of 1945;
c. In the ruling Constitutional Court Number 001-021-022/PUU-I/2003
about the 2002 20 Year Act Testing on
the Fame of the Act;
d. In the Decree of the Court of Constusi Number 140 /PUU-VII/2009 on
Testing of Act No. 1/PNPS/Year 1965 on
Abuse Prevention and/or Religious Desecration;
28. That the organization may act on behalf of public/public
is an organization that meets the requirements defined in
various laws and jurisprudence, that is:
a. the shape of a legal entity or foundation;
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b. In the base budget the concerned organization mentions
firmly regarding the purpose of the establishment of the organization;
c. has carried out activities in accordance with its base budget;
29. That the applicant II is a Non-Government Organization or Institution
The Swadaya Society (NGO) is growing and evolving
swadaya, at its own will and desires in the middle of a society that
established on the basis of concern to be able to provide protection and
the enforcement of human rights in Indonesia;
30. That the task and role of the applicant II in carrying out activities-
the activities of submission, protection and enforcement of human rights, and
civil and political freedoms have been constantly inculpated
his organization as a means to fight for fundamental rights
human beings and democracy;
31. That the task and role of the applicant II in carrying out activities-
enforcement activities, protection and defense of human rights,
in this case it is best to allow it as a means to
including as many as may community members in
fight for awards and respect for human rights values
humans against anyone also without distingueking the sex, tribe
nation, race, religion, and others. This is reflected in the Budget
Basis and/or the Establishment of the Applicant II (vide proof P-5); 32. That the basic and legal interest of the applicant II in submitting
Application Testing Section 82 paragraph (1) letter b, letter c, and letter d
KUHAP may be proven by the Basic Budget that mentions
emphastly regarding the purpose of the foundation of the organization, and has been
carrying out activities in accordance with its Dasar-Budget where in
Article 4 of the Basic Budget Applicant is stated that the Society
is satisfied with the Pancasila and is based on the the principles of rights
human rights as set out in the 1945 Constitution, Universal Declaration
Human Rights, and the International Covenant of Civil and Political Rights and
other international agreements in the field of civil and political rights that
have been ratified by the State of the Republic of Indonesia. In Article 6
The Association Basic Budget is stated that the Society aims
to (1) encourage the justice of the law of justice as well as
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attempted judicial reform and (2) encourages policy
the renewal of criminal justice orientated on human rights values
humans and basic freedoms;
33. That in achieving the intent and purpose of the applicant II has
conduct a wide range of efforts/activities carried out continuously
continuously, which case has become common knowledge. As for the form
the activities that have been done are as follows:
a. conduct research and publish a basic rights related report
human;
b. Conduct the study and advocacy of policies
(policies) and/or laws (laws and regulations), its applications, and
impacts on social, economic and cultural life,
society;
c. conduct advocacy in a variety of forms for the fulfilment of rights,
freedom, and the needs of the justice society;
d. establishing human rights networks at the national and
international levels;
e. conducting a lobby and cooperation at the national and international level
to improve human rights protection in Indonesia;
34. That the protection efforts, submission and fulfillment of human rights
humans, the social application performed by the applicant II has
is listed in the national act, the Act
Number 39 of 1999 about Human Rights;
35. That the protection, submission and fulfillment of human rights
the human being done by the applicant II has been included in
the various principles of International Law on Human Rights;
36. That other than that the applicant II has a constitutional right to
fight for his right jointly for the benefit of the nation and
the country. According to Article 28C of the paragraph (2) of the Basic Law of 1945
stated that: " Everyone has the right to advance itself in
fight for its rights collectively to build society,
the nation and country ";
37. That the problem of being the object of testing that is being tested by
The applicant is the issue of every human being because of its nature
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its university, which is not only the interest of the applicant II but
is also in the interest of any Indonesian citizen in particular
and every human in the world in general;
38. Further, the submission of article 82 of the paragraph (1) of the letter b,
letter c, and the letter d KUHAP are the form of concern and effort
The applicant II for protection, submission and fulfillment of rights
human and protection civil liberties and politics in Indonesia;
39. That thus, the existence of Article 82 paragraph (1) letter b, letter c, and
letter d KUHAP has the potential to violate constitutional rights
The applicant II, by means of Iangsung or not Iangsung, adversely
various types of Continuous efforts
in order to perform tasks and roles for protection
submission and fulfilment of human rights; submission and protection
civil liberties and politics in Indonesia which has been done by
APPLICANT II;
40. that based on the above description, it is clear that the applicant II has fulfilled
the quality and capacity as a testing applicant of the Act
against the Basic Law of 1945 as defined in
Article 51 of the letter c Law No. 24 of 2003 on
Constitutional Court juncto Act No. 8 Year 2011 on
The Changes to the Law No. 24 of 2003 concerning
Constitutional Court, nor a number of court rulings Constitution
which provides an explanation of the terms to be
The applicant testing Act against the Basic Law
1945. Accordingly, the entirety of the applicant has the right and
the interest of the law represents the interest of the public to submit
the application for testing of Article 82 of the paragraph (1) letter b, letter c, and the letter d
KUHAP;
IV. Subject matter
A. Scope Of Application
41. In this request, the applicant is requesting the testing of Article 82
paragraph (1) letter b, letter c, and letter d Act No. 8 Year 1981
on Criminal Event Law against Article 1 of paragraph (3), Section 28 D paragraph
(1), and Section 28 G verse (1) UUD 1945.
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B. The Reasons For The
Article 82 paragraph (1) letter b, letter c, and letter d in conflict with Section 1 of paragraph (3), Section 28D paragraph (1), and Section 28G paragraph (1) Constitution of 1945 I. Article 82 of the paragraph (1) b and letter c contradictory to the principle of
Fair legal certainty 42. That Article 1 paragraph (3) of the 1945 Constitution states that "The State of Indonesia
is the State of the Law";
43. That one of the most important elements of the state of the law is located on
the guarantee for the principle of a fair legal certainty, as
is proposed by Gustav Radbruch in the legal theory (Idee des
Rechts), which mentions that a legal state can
be classified into three general principles, namely: purposiveness-
expediency (zweckmassigkeit), justice-justice (gerechtigkeit), and legal
certainty-legal certainty (rechtssicherheit) (proof P-7) 44. That the Constitution of 1945 has also asserted a guarantee of legal certainty
for any citizen in the Indonesian legal state chamber,
as mentioned Article 28D paragraph (1) of the 1945 Constitution, " Any person
is entitled to the recognition, guarantee, protection, and legal certainty that
is fair as well as the same treatment before the law ";
45. That according to Jimly Asshiddiqie, the purpose of the legal certainty that
was conceived in the constitution is related to order and order;
(proof P-8) 46. That refers to the opinion of Frans Magnis Suseno, the state of law
based on a desire that the power of the state should
run on the basis of a balk and fair law. The law becomes the cornerstone
of all state actions, and the law itself should be good and fair. Good because it fits what society is expected of
the law, and fair because the basic intent of all laws is justice.
There are four main reasons to demand that the state be held and
run its duties by law, one of them is
'legal certainty', in addition to the same treatment demands, legitimacy
democratic and reason demands (P-9 proof); 47. That legal certainty is one of the main parts of morality
the law itself, this as the opinion put forth by
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Lon L. Fuller, stating that a rule of law is necessary
is subject to internal moraliti, therefore in its formation it must
Pay attention to the following four terms: a. laws should be made in such a way that it is understandable
by the common people. Fuller also named this thing as a desire
for clarity;
b. rules should not be contrary to each other;
c. in the law there must be assertiveness. The law should not be changed
any time, so that each person no longer orients
its activities to it;
d. There must be a consistency between the rules as the
announced with the performance of the reality. (proof P-10) 48. That in the legal state tradition rechtsstaat, the legal certainty is
an important part of which the state is concerned with,
is described by Friedrich Julius Stahl, that the Rechtsstaat " must
determine with precision and with certainty the boundaries and the limits of
its activity, as well as the free sphere of its citizens, according to the
modalities of law " (proof P-11); 49. That the importance of legal certainty is not only adhered to in the tradition
rechtsstaat, the tradition of the rule of law also gives affirmation of
the importance of legal certainty. The rule of law itself is interpreted as "a
legal system in which rules are clear, well-understood, and fairly enforced"-
a clear legal system (small possibilities for
misused), easily understood, and keeping the edge of justice.
The uncertainty of the law became mischaracterless the rule of law, in which
contains asas of legality, predictibility, and transparency;
50. That legal certainty (certainty), one of which contains an understanding
that the law should be predictable, or meets the element
predictibility, so that a legal subject can estimate
what rules are underlying their behavior, and how the rule
is interpreted and implemented.
51. That formally the establishment of laws in
Indonesia, legal certainty is also one of the principles that is not
may be interred in any law-making.
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It is as mentioned in Section 6 of the paragraph (1) of the letter i Invite-
Invite Number 12 Year 2011 on the Establishment of Regulation
Legislation, which is a direct mandate of provision
Article 22A UUD 1945;
52. That the provisions of Article 6 paragraph (1) of the letter i Act Number 12 of the Year
2011 states, "The charge materials of the Laws must
reflect the principle of: (i) order and the legal certainty". Then at
in its explanation said, "The principle of order
and the certainty of the law" is that any Material Charge Matter
The laws should be able to realize the order in
the public through the warranty of legal certainty ";
I. 1 That the Frasa " ... the judge heard the caption both and the suspect or the applicant and the authorized officials ... " in Article 82 of the paragraph (1) letter b of the KUHAP generate Legal uncertainty.
53. That in relation to the legal process, the criminal justice system
as a formyl institution to enforce the law of the material must have
the legal certainty, to maintain the order and the calm of the citizens,
in terms of Human rights violations, getting legal proceedings
the fair and the uncertainty of the law;
54. That one mechanism for safeguarding and protecting the rights
humans, in the Indonesian criminal justice system, regulate
the pretrial mechanism, as a mechanism of complaint and protection
dignity as well as fundamental rights citizens against the actions of officials who
are authorized in conducting forced efforts;
55. That one of the prejudicial settings in the KUHAP, which is Section 82
paragraph (1) the letter b reads, " in checking and severing of the valid or
not arrest or detention, valid or whether or not to stop the pen
encode or prosecution; request for damages and or rehabilitation
due to the loss of arrest or detention, as a result of it
the termination of the inquiry or prosecution and there are confiscated objects that
does not include the proof tool, the judge heard a good caption from
the suspect or the applicant and the authorized officials " there are
the formulation of the phrase which then elicits the uncertainty of the law;
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56. That the phrase "... the judge heard the caption either from the suspect or
the applicant and of the authorized official ..." inflict
the uncertainty of the law as it can be construed differently by
The court associated with whether "The Court is required to hear
the details of both parties in the pretrial hearing"
57. That if reviled carefully then the provisions of the provisions
give the judge the authority to execute it
based on his own interpretation and belief
58. That in essence the Penal Code does not detail the event law of the pretrial,
then the application of Article 82 paragraph (1) of the letter b of the KUHAP is highly dependent
with the judge's own interpretation and confidence whether to present
both sides of the Resulting in the start of the examination and
calculations at least 7 days to drop the verdict;
59. That as a result of the uncertainty regarding the phrase "... the judge heard
the good description of the suspect or the applicant or from the official
authorities ..." in connection with the commencement of the examination and
calculations of the past 7 days to drop the verdict may be
resulting in a delay of the Prejudicial Plea Examination
60. That due to the delay of the Pretrial examination,
the interest of the pretrial applicant as a party imposed by the effort
is forced to be unprotected under Article 28D paragraph (1)
KUHAP;
61. That appropriate judicial principles are quick in the hearings
pretrial, then if the call has been duly done and
Iayak to both parties, the Court may examine the plea
The Prajudiciary that submitted by the pretrial applicant;
62. That with the start, check, and disapproval of the Application
Prejudicial pretrial after appropriate summoning and
is feasible, will guarantee the principle of legal certainty and the right to feel secure
in accordance with the principle A quick trial in time defined by
Article 82 paragraph (1) of the letter c of the Criminal Code and directly impact
the chances of the pretrial litigation as set forth in Section 82
paragraph (1) of the letter d KUHAP;
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63. That the pretrial as an institution constituted solely for
guarantees and upholds the dignity of the applicant who feels his right
has been usurpated by the official who is authorized to be imploed with
forced attempts, must be the institution that guarantees the fulfillment of the Article
28D paragraph (1) of the 1945 Constitution;
64. That with no pretrial legal event law, then for the sake of
legal and protection certainty and respect for rights
man, a pretrial single judge may start, check and
cut off the plea The pretrial if the parties have been
is duly summoned and eligible to face the Court;
I. 2 Article 82 of the paragraph (1) the letter c does not explicitly set the start of the 7-day calculation for a pretrial examination
65. That the formula in Section 82 of the paragraph (1) of the letter c KUHAP reads
"The examination is carried out fast and at least seven
the day the judge must have dropped its verdict" has inflicted
various interpretation and potential legal uncertainty regarding "when
the start of 7 days" as referred to in Article a quo;
66. That Article 82 paragraph (1) of the letter c of the KUHAP does not have the clarity of the formula
as well as contrary to Article 28D of the paragraph (1) of the 1945 Constitution as
the embodiment of human rights protection and guarantees in the face of the law;
67. That due to the ambiguity of the formula 82 paragraph (1) letter c
KUHAP results in a developing court practice of four
varying interpretations of the rnengenai since when the 7 days
begins; that is first, calculation starts after the case is registered and
gets the registration number in PN, second, the calculation starts after the chairman
PN does the pretrial single judge appointment, third, calculation
starts after The pretrial single judge opened the inaugural trial, and
fourth, calculation started after the full parties (P-12 evidence and P-13 proof);
68. That some such interpretation has a close association with
the norm that is set up in Article 82 of the paragraph (1) letter a KUHAP that reads
" within three days of receiving the request, the appointed judge
set the trial day " so that if associated with the interpretation
first and second then the 7-day calculation has been reduced at least from
18
three days of time to appoint a judge and a designated judge determines
the day of the trial;
69. That some interpretation is also related to the terminology of 7
the day in Article 82 of the paragraph (1) the letter c of the KUHAP is also related to
is the reckoning of the week of the week in a single week. Whether
then 7 days is intended to include it on Saturday
and the week;
70. That some of these interpretations also relate to deadlines
that are appropriate and legitimate to do the call for the hearing are 3 days,
then if the calculation is included in the call time, then
there is Been reckoned with the timeout used for
performing a worthy call;
71. That based on the results of the research of Supriyadi W. Eddyono, SH, et al,
of the 80 most observable cases in need of time
events that can be completed within a period of 1-7 days only 4
matter, while the term of the prejudicial examination generally
is completed in excess of 7 days, with the note that
completed within 8-14 days there are 16 cases, then 15-21 days
there are 35 cases, 21-28 days there are 15 matter, 29-36 days are 7 cases, and
37-45 days there are 3 days with the following sebagal diagrams; (proof P-14) (full-contained image in the petitioner's request file) 72. That with the results of such data, the start of 7 days
since the registration of the plea or since the appointment of the pretrial judge
is legally difficult to implement.;
73. That if a 7-day interpretation of the start time is based on the time
both parties are present to have presented legal uncertainty and
not the justice of the pretrial applicant that is
the subject of which subjected to forced attempt;
74. That if used interpretation of the start time of 7 days since the
the complete party opens up the possibility for authorized officials to
delay attendance at the time of the first trial call, though
the call has been done as appropriate and feasible;
75. That the delay in the presence of authorized officials is often to be
one of the causes of the length of the pretrial examination time and be
19
a pretrial screening factor for the subject matter has been
registered to the court;
76. That the spirit and spirit of the prajudiciary is the judicial being done
quickly so that the Prajudicial applicant gets the certainty of whether
the process of arrest and detention against him is legitimate according to
the law;
77. That by providing an interpretation that the start of 7 days
at the time of the complete parties in the pretrial hearing opens
most likely a violation of the examination principle
preperadilans quickly for opening the possibility of an official
associated stalling attendance at a pretrial hearing. At its core
the violation of the principle may also be serious against
the violation of the pretrial applicant ' s rights;
78. That the interpretation of the start of the time 7 days since the parties is stated
complete has generally been a practice in examination
pretrial application in the State Court. The court did not dare
to start the trial and decide it within 7 days since the hearing
first opened even though the summons had been properly delivered and
it was worth it. This is the reason for the hearing
Pretrial appeals on average over 7 days; (vide proof P-14)
79. That is one of the considerations of the interpretation of the start time of 7 days
since the parties are declared complete in practice due to existence
the obscurity of whether a Pretrial Judge may drop the verdict
within 7 days since the first trial opened without any presence
officials who are authorized even though the authorized officials have
are called fit and worthy;
80. That due to the absence of an explanation as to whether Judge Prajudiciary
may drop the verdict within 7 days of the trial opened
and without the presence of authorized officials often in practice
Judge Prajustice vote on postponing the trial until its attendance
Officials are authorized. The delay of the Pretrial session was not present
authorized officials when the first trial was opened and with the already
carried out improperly and deserting the aggrieved was
20
The Prajudicial applicant who is the subject of the already imposed
forced attempt;
81. That the result of the absence of a judge's ruling
should the defendant/be asked not to present it after appropriate
has been called to the trial then based on the principle of the examination
fast, because it relates to the pretrial function as
control mechanism against the potential of the Investigator or
General Prosecuts, then the pretrial application hearing
begins at the time the judge opens the inaugural session for the examination can
be done for 7 days with or without the presence of the Officer who
authorities throughout the court has summoned an official who
authorized and deserved authority;
II. Article 82 paragraph (1) of the letter d Act No. 8 of 1981 on the Law of Criminal Events is not aligned with the principle of human rights protection
82. That as it has been mentioned above, Indonesia declares itself
adhering to the principles of the state of the law as it is in
Article 1 of the paragraph (3) of the 1945 Constitution;
83. That Article 1 article (3) of the Constitution of 1945, according to Jimly Asshiddiqie
contains a sense of recognition of the supremacy of law
and the constitution, then the principle of separation and restriction of power
according to the system constitutional, the existence of human rights guarantees, the presence of
a free and impartial judicial principle that guarantees equality
any citizen within the law, as well as to guarantee justice for any
persons including against misuse of authority by a party that
powers (proof P-15); 84. That to meet the elements to be referred to as a legal state,
in particular in the sense rechtstaat, Julius Stahl requires
some principles, including: a. Human rights protection (grondrechten); b. Power division (scheiding van machten); c.
Government based on legislation (wetmatigheid van bestuur);
and d. State-administrative justice (administratieve
rechspraak) (vide proof P-15);
21
85. That based on the opinion of Jimly Asshiddiqie, there are at least 13
(thirteen) the principal principle of legal states that are in effect in the present
this. The whole is the main pillar of the standing
of which a country is a constitutional democratic state, so it can
be referred to as a legal state in the true sense. One of the pillars
of the thirteenth principal principle of the law is protection
human rights protection (human rights protection) (vide proof P-15); 86. That protection and respect for human rights,
as the most important pillar of the state of the law is intended to
promote respect and protection against human rights as
the defining characteristic of a legal country Democratic ones. Each person
since his birth bears the rights and obligations that
is free and basic. The formation of a state should not diminuate the meaning or
meaning of freedom and of the rights of humanity. Even A.V. Dicey
emphasizes the principle that the constitutions of a country's constitution-the rule of law, must follow the formulation of basic rights
(constitution based on human rights). In addition to the the supremacy of lawprinciple,
and equality before the law (vide proof P -15); 87. That according to Kusumadi Pudjosewojo because Indonesia is
the state of the law, then all the authority and actions of the tools
state equipment must be based and governed by law.
The monarch is not the law-forming, but a rule-
rule of law, therefore the law applies not because it is set by
the ruler, but because of the law itself. This carries
the consequences, that the ruler can be held accountable if
in exercising his power beyond the boundaries that have been governed
by law, or performing deeds against the law. Authority
rulers and organs of the state are highly restricted to the authority
individuals in the country, which are human rights. The opinion confirms that human rights are an important element
in a Legal state (proof P-16); 88. That one form of protection of such human rights protections
is poured in Article 28G of the paragraph (1) of the 1945 Constitution that reads " Any
22
people are entitled to personal protection, family, honor,
dignity, and property under its authority, as well as entitled to
the safe and protection of the threats of fear to do or
not do something that is a birthright ";
89. That refers to the opinion of Bryan Z. Tamanaha, protection
against the dignity of a person as well as the property below
his power, is one of the inseparable parts of the state
the law. One form of the state of law according to Tamanaha is
a presence of protection against dignity (right of dignity), which provides
a guarantee against a person's dignity, including a guarantee of the right to justice
justice; (proof P-17); 90. That the form of protection against a person's dignity is one
embodied in the presence of a guarantee that a person's right should not be arrested
and arbitrarily detained, this is as affirmed
by Article 9 Universal Declaration of Human Rights (UDHR) 1948, "No
anyone may be arrested, detained or disposed of with authority-
Authorities";
91. That the provisions of Article 9 of the UDHR are then described in detail
and detailed in the provisions of Article 9 International Covenant on Civil and
Political Rights (ICCPR), as it has been ratified by Indonesia
through Act No. 12 of 2005, which mentions
as follows:
(1) Everyone is entitled to personal freedom and security. No
a person may be arrested or detained arbitrarily.
No one can be deprived of his freedom except based on
the legitimate reasons, in accordance with the procedure set by
the law.
(2) Any person who is arrested is required to be notified at the time of
his arrest and must as soon be notified of
the charges imposed against him.
(3) Any person who is detained or detained is based on criminal charges,
mandatory immediately to be confronted before the court or any other official that
is authorized by law to exercise power
the judiciary, and the right to stand trial within a reasonable period of time, or
23
is released. It is not a common provision, that the person
who is awaiting trial must be withheld, but deliverable may
be granted on the basis of assurances to be present at the time of the hearing, at
any stage of the court and on the execution of The verdict, if
is decided so.
(4) Anyone deprived of his freedom by means of arrest
or detention, is entitled to trial in front of the court, which
aims for a trial without delay be able to determine
the validity of his capture, and order his release
if invalid detention according to law.
(5) Any person who has been a victim of arrest or arrest
that is invalid, is entitled to be changed to the loss that must
be implemented;
92. That the intent of the provisions of Article 9 of the ICCPR can be found
details in detail and operational in the General Comment
Number 8 of the ICCPR Human Rights Committee explained that the right to control by
the court of legality (legitimate or legal). A containment, valid for
all those who were deprived of their independence by arrest or
detention. In addition, the Committee, any person who is arrested or
is detained must be immediately brought before a judge or other officer who
is granted authority by the law to exercise power
judicial. According to the Committee, the delay should not be more than a few days;
93. That of personal freedom (liberty of person), in clause of Article 9 above
is related to a very special aspect, the restraint
freedom of body movement (freedom of bodily movement). By
since that Section 9 relates to the connectedness of the freedom of freedom
personal only from the aspect of forced detention of a person at a location
in particular, such as a prison or other detention facility, a home facility
mental illness, and other places with special and legitimate purposes
according to the law;
94. That the provisions of Article 28G paragraph (1) of the Constitution of 1945 actually
contain the intent that the civil rights of citizens cannot be
arbitrarily deprived, without going through a procedure that
is governed by the Act and in particular. Was confronted with a
24
court proceedings (due process of law). The intent was then
downgraded to one of the provisions of Article 34 of the Act
Number 39 of 1999 on Human Rights, which mentioned:
" Everyone should not be arrested, detained, tortured, excommunicated, exiled,
or arbitrarily removed ";
95. That in the context of the national criminal law, to uphold the principle-
the principle of the state of law in particular which is related to the protection of rights
human rights, then at the house of the Law of Events Act
Criminal Code (KUHAP), which aims to implement a new program law
, as well as to achieve its material laws and achievements
against justice that is fair without facing split
between interests and procedural enforcement Alone;
96. That therefore, the enaccation of the Criminal Event Law system
based on the KUHAP must be completely adjusted for human rights standards
the human being ratified by the State of the Republic of Indonesia. With
thus the enaccation and application of the law should be an
system of rules that is a reflection of the country's principle
the law for and for justice;
97. That one form of action that has great potential for
is done as authorized-the authority in the exercise of the law
performed by the investigator and the public prosecutor is the authority to
conduct a forced attempt. Among them are arrest attempts and
incarceration;
98. That under Article 21 of the paragraph (1) of the KUHAP that reads " Command
The detention or continued detention is carried out against a suspect
or a suspected defendant committed a criminal offence based
sufficient evidence, in the event of circumstances in which it is present
concerns that the suspect or defendant will escape, taming
or remove any evidence and or repeat the criminal "
is the basis of the authority of the state apparatus to perform
arrest and containment;
99. That in the Act No. 8 of the Year of 1981 was in a letter that
it was understood that the order of arrest and arrest by the apparatus
the state did not require the permission of the court. This situation is generally
25
in recent conditions it is considered to be a Lack of Control or
the minimum controls that are closely related to the potential misuse
power by the state apparatus;
100. That in practice the "... in ha! existence is
raises the concern that ..." by the State Court considered
as a discretion and is the subjective reason of the country's apparatus that
only can be assessed by the state apparatus itself without being able to be tested
by the court;
101. Based on the June 2012-juli
2013 torture situation report issued by KontraS (Commission for Missing Persons and Victims
Tindak Violence), the number of torture was allegedly carried out by
investigators (police) were 55 cases, with 149 injured and 5
fatalities; (evidence P-18) 102. That based on Reports of torture situations in Indonesia June 2012-juli
2013 that KontraS issued, there is also a complaint data that
received ContraS in that year as many as 17 related cases
torture 16 The complaint occurred in the time of the detention and investigation process
while 1 case of the design by the TNI; (vide proof P-18) 103. That the potential of the arbitrariness is Iangsung
threatening the right to safe sense and protection from the threat of fear
to do or do nothing, and threaten the dignity
someone in this case against the actions of the state apparatus in
the arrest and detention of a direct-related trial
with the human rights guarantee embodied in Article 28G of the paragraph
(1) UUD 1945;
104. That refers to the Constitutional Court Number 65 /PUU-
IX/2011 about the testing of Article 83 of the paragraph (2) and paragraph (3) of the Act
Number 8 of 1981 on the Law of Criminal Events against the Constitution of 1945,
where in consideration a quo verdict described " that on
essentially any act of forced attempt, such as arrest,
search, seizure, arrest, and prosecution were committed
by breaking the rules laws is an act
the appropriation of human rights, And so with the pretrial
26
is expected to check the criminal case in accordance with
applicable law regulations ";
105. That in consideration of the ruling is also explained, " That
setting the same position before the law set in
The KUHAP is the presence of a pretrial system as one
control mechanism against possible arbitrary action of
General investigator or prosecution in conducting arrest,
search, seizure, investigation, prosecution, inspection termination
and the termination of the prosecution, both accompanied by a change request
losses and/or rehabilitation or not ".
106. That based on consideration in the ruling, it can be understood
that the prajudiciary is a control mechanism against the possibility
arbitrary actions of the investigator or the public prosecutor in
conduct a forced attempt, So the prajudiciary should be able to be
the bridge between the authority of the investigator or the public prosecutor with
the protection of the rights of the citizens;
107. That the phrase "... a pretrial system as one of the mechanisms of control
against the possibility of arbitrary action from investigators or
the public prosecutor ..." dalarn the consideration of the ruling, indicating
consciously and meticulously the Constitutional Court appoints the potential
violation of human rights of forced attempts, and for that
required a fair process and a legal uncertainty in the process
pretrial as control mechanism;
108. That the material that is tested at the pretrial hearing is an
manifestation of judicial power intended to control,
assess, test, and consider juridically, whether in
action of forced attempts against the suspect/defendant by investigators or
the prosecution has appropriate to the KUHAP which then affects
the subject matter and the law enforcement process up to the level
examination in court;
109. That the unalignment of the provisions of a quo with the principles
protection of human rights, in particular a guarantee of protection against
a person's dignity as well as the right to not be deprived of his civil liberties
Arbitrary can be viewed in the following elaborations:
27
II.1. The Principal Examination Must Wait For The Prajudiciary To Be Completed And Complete The Arrest and Detention Of The Arrest
110. Despite the vision of the establishment/application of the KUHAP is an
advance for law in Indonesia and respect for human rights
human rights and constitutional rights of citizens but still there
a section of potential and factually threatening constitutional rights
citizens such as those contained in Section 82 of the d (1) letter d
that reads " in case a matter is already started to be checked by
the court of the country whereas examination of requests to
pretrial is not yet complete, then the request was killed "
111. That with the warehouse a pretrial request, then all
principles and concepts related to legal certainty and
justice as well as prajudiciary as the institution of complaint and control
horizontally against the actions of investigators and the public prosecutor, which is,
The Constitutional Court's jurisprudence is considered potentially used
arbitrarily, not to be achieved because of the application of the application
that results directly in the absence of the verdict of the related judge
the plea is the highest incarnation of the a process
law;
112. That the submission of the Prejudicial application must be defined
there has been a strong belief of the Prajudicial applicant that it has occurred
deviation from the provisions of the Criminal Code in the implementation of forced attempts and
the violation of the Judicial system. Its rights, so for the sake of confirmation of or
no deviation from the provisions of the Criminal Code and/or violation of rights
it must also be met first
against the Pretrial Pretrial of the applicant;
113. That refers to the Constitutional Court Number 018 /PUU-
IV/2006 about the testing of Article 21 of the paragraph (1) Act Number 8
In 1981 on the Code of Criminal Events Act against
Constitution of 1945, which is in The model mentioned "Adanya pranata
prejudicial (rechtsinstituut) set in Section 77 of the KUHAP
Its purpose to check the legal under arrest, should not
only solely assessing a formal or administrative aspect of detention,
28
but also the deeper aspect of the rationality should be its not
is done containment ";
114. That consideration in the a quo ruling should be understood
as a reference that the prajudiciary is a process for
to guarantee the power of the law materially to achieve the justice of the material
and not just a formal or procedural aspect problem;
115. That against the judgement of the a quo carries further
in the fundamental question to which side the burden of proof
is laid (burden of proof). As long as the burden of proof is put in
the provisional applicant has an assessment of the rationality
against the need for his arrest to be in power
The authorized officer holds;
116. That the problem of proof load should be placed on the official
which is authorized to withstand is a Iogis thing where it is
a consequence of the assessment against " ... the existence of which
gives rise to worries ... " as expressly stated in
Article 21 paragraph (1) KUHAP juncto Putermination of Constitutional Court Number
018 /PUU-IV/2006;
117. That according to Akil Mochtar, the goal of the unified criminal justice system
is to uphold justice in the life order
to society as well as to protect each individual, by doing
the handling of the criminal act is not solely to unravel the follow-
criminal and find the perpetrator and drop the sentence, but
there is a greater purpose, including preventing the occurrence of another criminal
, rehabilitating the rights of the victim, as well as compacing offender; (proof P-19)
118. That, according to the view of Akil Mochtar, in the criminal justice system
unified, there are interconnected subsystems, from the start of function
the investigation, judiciary and correctional to realize justice
as the purpose of the criminal justice system; (vide proof P- 19) 119. That the application of Article 82 paragraph (1) of the letter d of the Penal Code is highly potentially and
factually threatening the constitutional right of citizens, because as
a process of its own pretrial should be viewed as one
unit of process enforcement of law in the criminal justice system that
29
intertwined and complementary, so that the process cannot be
castrated and must be completed until the ruling stage;
II.2. Prajudiciary's warehouse at the commencement of the subject's examination, dismissing the Suspect's Right to test the validity of Arrest and Detention
120. That Article 1 paragraph (3) of the 1945 Constitution states that "The State of Indonesia
is the State of the Law", in which one of the state's pinks according to
Jimly Asshiddigie is the limitation of power restrictions so that not
happens The arbitrariness. That in this case the authority that
is owned by the pretrial is the separation and division of power
based on the principle of the state of law; (vide proof P-20 ) 121. That the prejudicial philosophically formed to preserve the dignity
a human in the fulfillment of human rights by a citizen who is honed by the citizens
state, not related to the subject matter, where this is different from
the examination in A state court hearing that is intended to perform
The related proof is proven or unsubstantiated an indictment by
the state against the accused;
122. That the prajudiciary is an inseparable part of the system
criminal justice, then the prajudiciary has specific authority that has been
granted by the Act, as stated in Section 77
juncto Section 78 paragraph (1) of the KUHAP that reads " The state court
authorities for checking and severing, in accordance with the provisions
is set in this legislation concerning: (a) is valid or its not
arrest, containment, termination of inquiry or termination
prosecution; (b) change for loss and or rehabilitation for a person
The criminal case is terminated at the level of inquiry or prosecution ";
123. That the authority of the state court is to be implemented
by the pretrial that is to examine and break the legal of any attempt
force and replace the loss or rehabilitation of an act of apparatus
the state. The prejudicial authority is different
with the usual court authority as there has been a division
the power provided by KUHAP;
124. That the pretrial application process, as an attempt to maintain dignity
humans in the fulfillment of human rights by the country ' s moirest of the citizens
30
states outside on the subject matter, then are limited to the
formula 82 paragraph (1) d KUHAP that reads " in case of a
The case has already begun to be checked by the state court while
The examination of the request to the prajudiciary is not yet completed,
then the request was lost ".
125. That after the fall due to the start of the matter by the courts
the country, which is the prejudicial authority cannot
be returned to the subject matter of the court case
the country, due to the difference the fundamental principle of vetting in prajudiciary
and in the court of the country;
126. That by the difference the authority checks and breaks it from
pretrial and state courts then the setting in Section 82 of the paragraph
(1) the letter d of the KUHAP resulting in the practice of an examination in
pretrial if the principal The case has begun to be examined in court.
The country, has resulted in the loss of the suspect's right to test.
No arrest and arrest, so that the a quo contradictory
with Article 1 of the paragraph (3), Section 28D verse (1), and Article 28G paragraph (1) UUD
1945;
V. Petitum
Based on the descriptions above then the petitioners are begging
The Constitutional Court in order to please cut the Application For Testing Article 82
paragraph (1) the letter b, letter c, and the letter d Act No. 8 of 1981
on the Criminal Event Law against the 1945 Constitution by stating:
1. Grant the Applicant for the whole;
2. Stating Article 82 paragraph (1) of the letter b 8 Year 1981
contradictory to the Constitution of 1945 as long as it is not understood " the judge heard the caption
either and the suspect or the applicant and the authorized official
can be done without a presence attended by authorized officials and can
drop a ruling without the presence of authorized officials ";
3. Stating Article 82 paragraph (1) letter b No. 8 Year 1981
on the Criminal Event Law does not have a binding legal force during
not be defined " the judge heard the caption either and the suspect or
the applicant or the and authorized officials can be conducted unattended
31
by authorized officials and may drop a ruling without
the presence of authorized officials ";
4. Article 82 paragraph (1) of the letter c Act 8 of 1981
on the Criminal Event Law in conflict with the Constitution of 1945 as long as it is not
is given " a check no later than 7 days starting at the time
the sole judge The prajudiciary opened the first trial with or without
the presence of authorized officials "
5. Stating Article 82 paragraph (1) letter c No. 8 of 1981
on the Criminal Event Law does not have a legal force which
binds during dismay " inspection at least 7 days
it begins on when a pretrial single judge opened the hearing
first time with or without the presence of authorized officials "
6. Article 82 paragraph (1) of the letter of Law No. 8 of 1981
on the Criminal Event Law in conflict with Article 1 of paragraph (3) juncto
Article 28D paragraph (1) juncto article 28G paragraph (1) Constitution of 1945;
7. Article 82 paragraph (1) of the letter d Act No. 8 of 1981
on the Criminal Event Law does not have a binding legal force
with all due to its law;
8. Ordering the loading of this ruling in the State Sheet within the term
30 days if this request is granted.
Or if the Constitutional Court of Justice has a different opinion of
The applicant please please justice It is fair
[2.2] weighed that in order to prove its control, the applicant
has submitted a letter of letter proof/writing that is marked P-1 until
with the P-20 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 Occupation Letter of the Occupation in the name of Anwar Sadat;
3. Evidence P-3: Photocopy of the Palembang State Court Decree Number 250 /Pid.B/2013/PN.PLG with defendant Anwar Sadat, ST aka Sadat Bin Satim and Dedek Chaniago Bin Edi;
4. Evidence P-4: Photocopy of the Palembang State Court against the Pra Judicial Number
32
03 /Pra_Per/2013/PN. PLG on behalf of the petitioner Anwar Sadat;
5. Evidence P-5: Photocopied Akta Notary Irma Devita Purnamasari, S.H., M. Kn., regarding the Founding Description of the Society of Penal Judicial Renewal Society (ICJR) Number 414.-, dated August 12, 2011;
6. Evidence P-6: Photocopy of the Decree of the Minister of Law and Human Rights of the Republic of Indonesia Number AHU-239.AH.01.06. 2011 on Fraternity Unrest;
7. Evidence P-7: Photocopy of the Writing Under the Title Meta-Ethics and Legal Theory: The Case of Gustav Radbruch by Torben Spaak, Department of Law Uppsala University;
8. Evidence P-8: Photocopy of the Introduction Book of the State Code of Law, By Prof. Dr. Jimly Asshiddiqie, S.H., thing 149-150;
9. Evidence P-9: Photocopier Of Political Ethics Principles Of The Basic Moral Principles Of Modern Statehood, By Franz Magnis-Suseno, hal. 295-302;
10. Proof P-10: Photocopy Book The Morality of Law, Revised Edition, by Lon L. Fuller, hal 191-193;
11. Evidence P-11: Photocopy Book The Rule of Law History, Theory and Criticism, Edited by Pietro Costa and Dabnilo Zolo, University of Florence, Italy, hal. 241;
12. Evidence P-12: Photocopy of the Question of Problems and the Application of the KUHAP: Examination of Court, Appeal, Cassation, and Rejuvenation. Author M. Yahya Harahap, S.H., thing. 13-17;
13. Evidence P-13: Photocopy of the focused discussion, "Prajudicial Perkara Management: Challenges and Repairs to the front" by the Institute for Criminal Justice Reform (ICJR) on 29 May 2013;
14. Evidence P-14: Photocopy of Prajustice Studies in Theory and Practice, by Supriyadi W. Eddyono, Wahyudi Djafar, and Sufriadi Pinim, Institute for Criminal Justice Reform (ICJR) in 2013;
15. Evidence P-15: Photocopy Book of the Laws of the Indonesian Tata Negara Pasca reform, Author Prof. Dr. Jimly Asshiddiqie, S.H., hal. 296-311;
16. Evidence P-16: Photocopying Books of Indonesian Law Lessons, Author of Prof. Kusumadi Pudjosewojo, S.H., hal. 150, 195-204;
33
17. Evidence P-17: Photocopy Book On The Rule of Law: History, Politics, Theory. By Brian Z. Tamanaha, Cambridge University Press, thing. 91;
18. Evidence P-18: Photocopy of the Writings with the title Victim Still Tortured, Reports of Torture Situation in Indonesia June 2012-July 2013;
19. Evidence P-19: Photocopy Integrated Criminal Justice System, by Dr. M. Akil Mochtar, S.H., M.H.;
20. Evidence P-20: Photocopy of the Indonesian Law State Writing, by Prof. Dr. Jimly Asshiddiqie, S.H.
[2.3] A draw that in order to shorten the description in this ruling,
everything that happens in the trial is quite appointed in the News Event
The trial, which is one unbreakable unity with
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] weighed that the intent and purpose of the applicant's plea
is to invoke the constitutionality testing of Article 82 (1) letter b, letter c,
and the letter d, Act Number 8 of the Year of 1981 on Criminal Event Law
(Sheet State Of Indonesia In 1981 Number 76, Supplemental
Sheet Country Indonesia Number 3258, subsequently called KUHAP)
against Article 1 of the paragraph (3), Article 28D paragraph (1), and Article 28G of the paragraph (1) Invite-
Invite the Basic State of the Republic of Indonesia in 1945, then called UUD
1945;
[3.2] weighed that before considering the subject's subject,
The Constitutional Court (later called the Court) would first
consider:
a. The Court's authority to prosecute the a quo;
b. legal (legal standing) applicant to apply for
a quo;
Against those two, the Court considered the
following:
34
Constitutional authority
[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution, Article 10
paragraph (1) letter a Law Number 24 Year 2003 on the Court
The Constitution as amended by Act Number 8 of the Year
2011 on Changes to the Law No. 24 Year 2003 concerning
Constitutional Court (State Sheet of the Republic of Indonesia Year 2011 Number
70, Additional Gazette of the Republic of Indonesia Number 5226, next
called Act MK), as well as Article 29 (1) paragraph (1) letter a Law Number 48 of the Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
2009 number 157, Additional Gazette of the Republic of Indonesia Number
5076, subsequently called Act 48/2009), one of the constitutional authority
The court is to prosecute at first and last level of its verdict
is final to test the Act against the Basic Law;
[3.4] Draw that plea The applicant is testing
the constitutionality of the norm of the Act, in casu Article 82 paragraph (1) letter b, letter
c, and letter d, Act No. 8 of 1981 KUHAP against Article 1
paragraph (3), Section 28D paragraph (1), and Article 28G paragraph (1) of the Constitution of 1945, so
The court is authorized to prosecute a quo;
The Law Standing (Legal Standing) of 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. The Act
against the Constitution of 1945 is those who consider the rights and/or authority
The constitutionality given by the 1945 Constitution was harmed by the enactment of a
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;
c. the public or private legal entity;
d. state institutions;
35
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] The Court has since the Constitutional Court's termination.
Number 006 /PUU-III/2005 dated May 31, 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007 dated September 20, 2007, as well as the ruling-
The subsequent ruling is the loss of rights and/or authority
constitutionality as referred to in Article 51 of the paragraph (1) MK Act must be
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. A causal relationship (causal verband) between the intended loss
and the expiring of the testing Act;
e. It is possible that with the request of the request then
constitutional losses such as those that are postured will not or no longer occur;
[3.7] It is balanced that the applicant I is an Indonesian citizen
in office As Executive Director of the Indonesian Environment Wahana
(WALHI) South Sumatra who has always accompanied the people of Ogan Ilir,
South Sumatra, in doing the fight to restore rights to
the land was taken By PTPN VII Sweet Love, Ogan Ilir, Sumatra
South. As for the applicant II is a non-governmental organization or Institution
Swadaya Community (NGO) which was established on the basis of concern for
providing protection and enforcement of human rights in Indonesia which
served and played a role. in executing the submission activities,
36
protection, and enforcement of human rights, as well as civil and political freedoms,
by means of its organization as a means for
to be equal to human rights and Democracy continues to publish.
[3.8] Draw that the Petitioners on the underlying point have been
aggrieved by the enactment of Article 82 of the paragraph (1) b, letter c, and the letter d
KUHAP stated:
Article 82
(1) The pretrial examination event for the subject referred to in Article 79, Section 80 and Article 81 are defined as follows: b. In check and discharges of illegal or illegal arrest
or imprisonment, legal or unlawful termination of the inquiry, request for damages and or rehabilitation due to the absence of arrest or arrest, As a result of the termination of the investigation or prosecution and there were confiscated objects that did not include the evidence, the judge heard either the suspect or the applicant and from the authorized officials;
c. the examination is It's done fast and at least seven days. The judge has to be. dropped its verdict;
d. In the case of a matter has already begun to be checked by a state court, while the examination of the request to the prajudiciary is not yet completed, then the request is lost;
which according to the applicant is contrary to Article 1 of the paragraph, (3), Section 28D
paragraph (1), and Article 28G paragraph (1) of the Constitution of 1945 which states:
- Article 1 of the paragraph (3): The State of Indonesia is the legal State
- Article 28D paragraph (1): Everyone is entitled to the recognition, assurance, protection, and certainty of fair law as well as the same treatment before the law.
- Section 28G verse (1): Everyone is entitled to personal protection, family, honor, dignity, and property that is under his power, and is entitled to a sense of safety and protection from the threat of fear to do or not to do something that is a birthright.
with the reason that is at its point as Here's a. The applicant I was arrested by the South Sumatra Regional Police apparatus and
is accused of having committed a criminal act and committing the destruction
as set in Article 170 of the Criminal Code for conducting action at
front The South Sumatra Regional Police Base is in the fight
37
the rights to the land along with the victims of the land appropriation of land by PTPN
VII. As a result of the arrest and arrest, the applicant I submitted
a pretrial request to the Palembang State Court because
The applicant I consider the arrest and detention process carried out
by the Regional Police South Sumatra does not conform to the procedure and
mechanisms as have been determined in the Book of Acts
The Criminal Event Law (KUHAP). That at the time of the examination process
the pretrial was ongoing at the Palembang State Court, it turned out
the subject of the matter that was impedised to the applicant I began to be sided at
the Palembang State Court, so that with Under the terms
Article 82 paragraph (1) of the letter d KUHAP, the assembly of judges that judge the plea
pretrial pretrial I decide
Pretrial the Applicant I "The Fall". The verdict is based on the grounds
as the Applicant I as the defendant has begun to be arrased;
b. The applicant I is entitled to a guarantee of a fair legal certainty as
guaranteed in the 1945 Constitution, but with the practice of the Prajudicial application
from the applicant I have caused the applicant I do not get any certainty
on whether the arrest and containment process performed against
The applicant I has consconded with the mechanism and procedure that has been
specified by KUHAP;
c. As a living and human rights activist, the applicant I have
a great potential again conflict with the law and is highly likely to be done
an arbitrary arrest and detention return then
The applicant I have the potential loss of the right to a sense of security
and protection from the threat of fear as warranted in the Article
28G paragraph (1) of the 1945 Constitution;
d. That with Article 82 of the paragraph (1) letter b, the letter c, and the letter d KUHAP
has the potential to violate the constitutional right of the applicant II by means of
directly or indirectly harming the various businesses
that has been conducted continuously in order to run the task
and the role for the protection of the submission and fulfillment of human rights
humans, as well as the submission and protection of civil and political freedoms in
Indonesia that is during the this has been done by the applicant II;
38
[3.9] Draw that based on such consideration above as well as
connect with the Applicant's plea above, the Court
argues there is a constitutional loss which the applicant suffers from
the presence of Article 82 paragraph (1) of the letter b, letter c, and the letter d KUHAP and there
the causal link between the constitutional loss of the applicant with
a a quoarticle, so according to The Court, the petitioners have
legal standing (legal standing) for apply for a quo;
[3.10] It is balanced that by the court of competent judgment
a a quo and the applicant have a legal position (legal standing)
to apply for a quo, next the Court will
consider the subject;
The Court opinion
The subject
[3.11] weighing that the petitioners applied for a material test of the article
82 paragraph (1) letter b, the letter c, and the letter d KUHAP which the applicant says
contradictory to the Section 1 paragraph (3), Article 28D paragraph (1), and Article 28G paragraph (1)
Constitution of 1945, for the reasons that are in the following:
a. Article 82 paragraph (1) letter b, letter c, and letter d KUHAP contradictory to
the principle of fair legal certainty and incline of legal uncertainty;
b. Section 82 of the paragraph (1) of the letter c does not explicitly set the start of
The 7-day calculation for the pretrial examination;
c. Article 82 paragraph (1) of the letter d is not in alignment with the principle of human rights protection
humans, and should be subject to the subject matter pending pretrial
complete check and disconnect of arrest and arrest,
and The pretrial warehouse at the commencement of the underlying examination
eliminate the suspect's right to test the validity of the arrest and
containment;
d. That the delay in the presence of authorized officials is often
one of the causes of the length of the pretrial examination time and being
a factor of the pretrial examination because the subject matter has been
registered to the court;
39
[3.12] Draw that after the Court examines the plea and
check the evidence of the Court Applicant argued as follows:
[3.12.1] That before considering further request
The applicant, the Court needs to cite Article 54 of the MK Act stating,
"The Constitutional Court may request the captions and/or meeting treatises
with regard to the application being examined to the Assembly.
People Consultative Assembly, House, Regional Representative Council, and/or President"
in conducting testing on an Act. In other words,
The court may request or not request the captions and/or meeting treatises
with respect to the application being examined to the Assembly
The Consultative Assembly, the House of Representatives, Council The Regional Representative,
and/or the President, depends on the urgency and relevance. Because
a legal issue and the a quo plea reasonably clear, the Court will
cut the case of a quo without hearing the description and/or meeting treatises from
the People's Consultative Assembly, the House of Representatives, The House of Representatives
Regions, and/or President;
[3.12.2] That the Court in Decree Number 65 /PUU-IX/2011, date 1
May 2012, in paragraph [3.12] and paragraph [3.13], among others, have
consider:
" [3.12] ...
That the prajudiciary is one of the systems in criminal justice
Indonesia. Prajudiciary is not known in the law of the old criminal event
is set in the Herziene Inlandsche Reglement (H.I. R). HIR adheres to the system
inquisitoir, i.e. placing suspect or defendant in check
as an object allowing arbitrary treatment
investigators against the suspect, so since When the first inspection
before the investigators, the suspect has been taken as an apriori as guilty. KUHAP has
changing the system adhered to by the HIR is placing
the suspect or defendant is no longer an examination object but
the suspect or defendant is placed as the subject, i.e. as
human beings who have equal dignity, dignity, and rank in
before the law. One of the same standing arrangements in front of
40
the laws set in the KUHAP are systems
prejudicial as one of the control mechanisms against possible
arbitrary actions of investigators or a public prosecutor in
conduct arrest, search, seizure, investigation,
prosecution, termination of inquiry and termination of prosecution, good
which is accompanied by a change request for damages. and/or rehab or
no. As for intent and purpose to be enforced and
protected in the pretrial process is the legal force and
protection of human rights as a suspect/defendant in
inspection of the investigation and Prosecution. It is thus made
the pretrial system set up in Section 77 to Section 83
KUHAP is for the sake of horizontal oversight of
rights of the accused/defendant in Preliminary examination (vide
explanation of Article 80 of the KUHAP). The presence of KUHAP is intended to
corrects the experience of past judicial practices, under the HIR rules,
which is not in line with protection and human rights enforcement.
In addition, KUHAP provides protection against human rights
for the suspect or defendant to defend his interests in
legal process;
That basically any act of forced attempt, such as an arrest,
shakedown, foreclosure, detention, and prosecution carried out
by violating the laws is an act
the human rights appropriation, so that with the pretrial
is expected that the criminal proceedings may proceed in accordance with
applicable law rules. Supervision by a state court
as the first level judicial body is intended to control,
assess, test, and consider juridically, whether in
the force of forced attempts against the the suspect/defendant by the investigation/investigator
or the public prosecutor has been in accordance with KUHAP;
That a prejudicial application is filed in a state court by
The suspect/defendant, his family or his power, investigators, the public prosecutor,
and a third party of interest. A pretrial check by
a state court is a preliminary examination before
conducted a subject of criminal proceedings filed by the prosecutor
41
The public prosecutor. Pretrial checks are conducted quickly and
at least seven days the judge has to decide on it.
A pretrial plea if the court is already starting
check the subject of the criminal case those, while the pleas
pretrial has not been severed by the Court [vide Article 82 paragraph (1) letter c
and the letter d KUHAP]; "
" [3.13] ... The Court argued that the KUHAP had set up a check
The prajudicial application was conducted quickly, which is the slowest of the three
days after the plea was filed, a single judge set to prosecute
The pretrial pretrial already has to set the trial day [vide
Article 82 paragraph (1) letter a KUHAP], and in the most lasting seven days,
the judge has already had to drop the verdict [vide Article 82 paragraph (1) letter c
KUHAP]. It has to speed up the pretrial event followed again with
provisions of Article 82 paragraph (1) of the d KUHAP letter that determine if
a case has already begun to be checked by a court of state, whereas
The request for the pretrial has not been completed, then the prajudiciary
it is fallen ... "
[3.12.3] That the constitutionality testing of Article 82 paragraph (1) of the letter b, the letter c,
and the letter d KUHAP implore the Court of Applicant
constitute the norm in order to further the application of the application
pretrial by the seekers of justice, in casu of the petitioner, which
gives legal certainty to the public or the seeker of justice,
in particular to the applicant I who felt that the arrest against him
by the South Sumatra Regional Police Department for being accused of doing
penal action also does not conform to
procedures and mechanisms as have been determined in the KUHAP. With
so with the provisions of Article 82 paragraph (1) the letter b and the letter c KUHAP,
The applicant I or the justice community has a legal basis for
to apply for a prejudicial application;
[3.12.4] That concerning The prejudicial examination deadline is conducted
quickly and at least seven days the judge must have dropped
the verdict as set in Section 82 paragraph (1) of the letter c KUHAP, and
42
regarding the pretrial application of the applicant I due to the subject of the matter
that it is not disappointing to the applicant I begin to be arrased at the State Court
Palembang, according to the Court, it is is setting
a rapidly conducted pretrial request check as
has the Court considered in the Putermination Number 65 /PUU-IX/2011, date 1
May 2012, because in certain matters, the public prosecutor also must immediately
submit the subject matter to the court if it is related to the The arrest period
The suspect is about to end. Moreover, for the suspect still has the right
to defend himself and convey his objection to the thing
in question in the pretrial at the time of the principal examination;
[3.13] Draw that based on the The entire consideration is above,
according to the Court, the applicant's plea is not an issue
the constitutionality of the norm, but is a matter of the implementation of norms in
the judicial practice. Nevertheless, regardless of the consideration above,
The court needs to provide an assessment that it should be in
not being made a loophole by both investigators and the public prosecutor to abort
pretrial In a manner that immediately disforces the case files to the courts
the country. Moreover, the fact that there is a file that is not complete to the court
The country will result in a case file submitted to the state court
It is a matter of the case file. In the event of a request
pretrial, all parties related to the pretrial
must respect the pretrial trial. An action that
is not laugable if any investigator or public prosecutor intentionally does
attend a pretrial hearing, such as a public prosecutor on purpose
not attending the pretrial hearing and immediately submitted the subject matter
to the state court with the intent to request the praperadial to fall.
By hence the superiors of the parties (police and/or prosecutor)
can provide sanctions to the apparatus that do not respect the trial;
[3.14] It is balanced that based on The entire description of the deliberation
above, according to the Court of Control the applicant is unwarranted according to the law.
43
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court of law for prosecuting a quo;
[4.2] The petitioners have a legal position. (legal standing) to
apply a quo;
[4.3] The applicant's application is unwarranted according to law.
Based on the Basic Law of the Republic of Indonesia Year
1945, Act Number 24 2003 on the Constitutional Court
as amended by Law No. 8 Year 2011 on
Changes to the Law No. 24 Year 2003 on the Court
Constitution (Gazette of State of Republic of Indonesia Year 2011 Number 70,
Additional leaf of the Republic of Indonesia Number of Indonesia 5226), As Well As The Invite-
Invite Number 48 Of 2009 On The Power Of Justice (Sheet
The State Of The Republic Of Indonesia In 2009 Number 157, Added Sheet
State Number 5076).
5. AMAR RULING
Prosecuting,
Declaring refusing the petitioners to the whole.
It was decided in a Consultative Meeting by eight
Constitutional Judges, namely Hamdan Zoelva as Chairman Arrested Members, Arief
Hidayat, Muhammad Alim, Patrialis Akbar, Ahmad Fadlil Sumadi, Anwar Usman,
Maria Farida Indrati, and Harjono, respectively as Member, at day
Monday, twenty-seven, month-on-date January, year two thousand fourteenth,
and spoken in the Plenary Session The Constitutional Court is open to the public
at on Thursday, the twenty, the month of February, the year two thousand four
11, finished pronounced at 14.26 WIB, by the seven Justices of the Constitution, namely
Hamdan Zoelva As the Chief Minister, Arief Hidayat, Muhammad
44
Alim, Patrialis Akbar, Ahmad Fadlil Sumadi, Maria Farida Indrati, and Harjono,
respectively as Member, accompanied by Saiful Anwar as
Panitera Replacement, as well as attended The applicant, the Government or the
represents, and the DPR or the representative.
CHAIRMAN,
ttd.
Hamdan Zoelva
MEMBERS,
ttd.
Arief Hidayat
ttd.
Muhammad Alim
ttd.
Patrialis Akbar
ttd.
Ahmad Fadlil Sumadi
ttd.
Maria Farida Indrati
ttd.
Harjono
PANITERA REPLACEMENT,
ttd.
Saiful Anwar