Key Benefits:
VERDICT Number 49 /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 level of First and last,
dropping the verdict in case of Test Number 30 of the Year
2002 about the Corruption Eradication Commission against the Invite-
Invite the State of the Republic of Indonesia in 1945, which submitted by:
[1.2] 1. Name: M. Farhat Abbas, SH., MH.
Work: Advocacy/Lawyer
Address: North Kemang Road VII, Number 11, RT 02, RW 04, Kelurahan Bangka, District Mampang Prapatan,
South Jakarta;
as --------------------------------------------------------------------------Applicant I;
2. Name: Narliswandi Piliang Alias Iwan Piliang
Work: Citizen Reporter
Address: Malabar Street Number 14, Thunder, South Jakarta;
as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ Windu Wijaya, SH., Vera Tobing, SH., M. Hum., Hazmin A. ST., Muda, SH., Muhammad Zakir, SH., Handy Hero Principal, SH., Rezky, SH., and Fedhli Faisal, SH., Legal Advocates and Legal Consultants at the law office of Farhat Abbas & Associates, who address on the Street High Prapatan Raya Number 106, Jakarta
South, acting fine Together or individually for and
on behalf of the power-giver;
Next is referred to as ----------------------------------------------------------para The applicant;
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[1.3] Reading the applicant's request;
Hearing the applicant's description;
Heard the caption and read the Government's written caption;
Heard the caption and read Board's written caption
People's Representative;
Checking the petitioner's evidence;
2. SITTING MATTERS
[2.1] Draws that the petitioners have applied for
dated April 16, 2013 which is accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) on 17 April 2013
based on the Certificate of Accepting File Request Number 183 /PAN.MK/ 2013 and
noted in the Book of Constitutional Registration with No. 49 /PUU-XI/2013
on April 29, 2013, which has been corrected and accepted in the Paniteraan
The court on June 3, 2013, outlines the things as follows:
I. Constitution of the Constitutional Court
1. That Article 24 paragraph (2) of the Third Amendment of the Constitution of 1945 states:
"The judicial powers are performed by a Supreme Court and
the judicial body under which it is in the general judicial environment,
the judicial environment religion, the military judicial environment, the environment
the judicial order of the country and by a Constitutional Court ";
2. That further Article 24C paragraph (1) of the Third Amendment of the Constitution of 1945
states:
"The Constitutional Court is in order to prosecute at first level and
The final verdict is final to test the Act
against the Constitution, severing the state agency's authority dispute
its authority is granted by the Constitution, severing the dissolution of the political party
and severing the dispute about the Election results "
3. That under the terms of the above then the Constitutional Court
reserves the right or authority to conduct the testing of the Invite-
Invite against the Constitution which is also based on Article 10 of the paragraph (1) letter a
Act No. 24 of the Year 2003 on Constitutional Court
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as amended by Act Number 8 of the Year 2011
on Changes to the Act No. 24 of 2003 on
The Constitutional Court ruled that one of the powers
The Constitutional Court is conducting an Act
against the Basic Law of the Republic of Indonesia in 1945
(UUD 1945). The authority of the Constitutional Court is also affirmed
in Article 9 of the paragraph (1) of the Act No. 12 of 2011 on
The formation of the Perundang-Invitation Regulation which mentions that
is the matter of the alleged Act contrary to Invite-
Invite the Basic State of the Republic of Indonesia in 1945, its pronunciation
is done by the Constitutional Court.
4. That based on these matters above, then the Constitutional Court
authorities to examine and cut test test applications
material Article 21 paragraph (5) Act Number 30 of 2002 on
Commission of Eradication of Tindak Criminal Corruption Against Article 28D Paragraph (1)
The Basic Law Of The Republic Of Indonesia In 1945.
II. Legal Position (Legal Standing) Applicants
1. That Article 51 paragraph (1) of the Law Number 24 of 2002 on
The Constitutional Court reads:
" The applicant is a party that considers the right and/or authority
its constitutionality is harmed by the enactment of the legislation, :
a) Individual WNI;
b) The unity of the indigenous legal society as long as it is alive and appropriate
with the development of the community and the principle of the State of Unity
The Republic of Indonesia is set in invite;
c) The public and private legal bodies; or
d) State Institute ";
2. That the Constitutional Court in the Putermination Number 006 /PUU-III/2005 has
provides an explanation of the constitutional rights and disadvantages
constitutional as follows:
1) Adanya the constitutional right of the applicant given by the Constitution 1945;
2) That the applicant ' s constitutional rights are considered by the applicant
has been harmed by a law being tested;
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3) That the intended constitutional loss is
specific (specifically) and actual or at least potential that
according to reasonable reasoning may be It is not available;
4) The validity of the causal relationship between the loss and
the laws are being asked to be tested;
5) Adanya is likely that by the application of the application then
The constitutional loss postured will not be or not Again.
3. That the applicant I is an Indonesian citizen of the profession as
an advocate in which according to Act No. 18 of 2003 Article 5
paragraph (1) is mentioned that Advocates are status as law enforcement.
Based on the responsibilities of the law. answer as the law enforcement is eating
The applicant I am legally obligated to exercise his profession
for the sake of justice based on law, including the fight
the norms deemed to be contrary to the Constitution of 1945 for the right
citizens of the citizens can be assured and fulfilled in accordance with the the principle
of the state of indonesia as a legal state. As for the applicant II is a citizen
a citizen of the profession where as a citizen
a state that must be aware of the law has a responsibility as
owned by the applicant I of the law's values. That recognizes
and guarantees the legal certainty of law.
4. That the applicant as a citizen of Indonesia as
referred to Article 51 of the paragraph (1) of the letter No. 24 of 2003
On the Constitutional Court is granted the constitutional right set in
The Basic Law of 1945. One human rights granted
by the constitution to each of its citizens including the human rights
granted to the applicant is Article 28D paragraph (1) The Basic Law of 1945 which states that: ' Everyone is entitled to recognition, assurance and protection, and
fair legal certainty as well as the same treatment before
the law ".
The human rights stated in Article 28D paragraph (1) certainly can
be interpreted that each person is an Indonesian citizen
in this case the applicant has the right or something to be
gets as a citizen to obtain legal certainty.
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5. That based on the constitutional right of the applicant as
The individual of the Indonesian citizen who is governed in Article 28D paragraph (1)
The Basic Law of 1945 has been harmed by a portion of the material charge
in Law No. 30 of 2002 on the Commission
The Eradication of Criminal Corruption for inflict loss
the constitution of the Petitioners in obtaining legal certainty. As for
the charge material in the Act which has incurred a loss
the constitutional for the applicant I and the applicant II to obtain
the legal certainty is as follows:
Article 21 of the paragraph (5) reads:
"The leadership of the Corruption Eradication Commission as referred to in paragraph (2) is working collectively" (vide proof P-1).
In explanation of Article 21 of the paragraph (5) Act No. 30 of 2002
about the Corruption Eradication Commission is explained
that what is meant by "working collectively" is that
any decision making must be approved and decided
together by the leadership of the Corruption Eradication Commission.
6. That under Article 28D the paragraph (1) of the Basic Law of 1945 has
provided a specific thing regarding the human rights of the applicant
as a citizen of the country, the applicant is entitled to a certainty
the law. As for the existence of the material contained in Article 21 of the paragraph (5)
Act No. 30 of 2002 on the Commission of Eradication
The Corruption Penal Code has been real and the potential has incur
a constitutional loss for the The applicant is to gain certainty
the law. This is due to the provisions in Section 21 of the paragraph (5) Invite-
Invite Number 30 Year 2002 on the Tindak Eradication Commission
The corruption of corruption that does not comply with the basis of the perinvite rule-
invitation, pateness and justice in any holding policy
a country which is an asas that must be met in a state of law.
By the cause it has been clear that provisions in Article 21 paragraph (5)
Act Number 30 Year 2002 concerning The Eradication Commission
The Corruption Criminal Code has been real hinting the rights of the petitioners to
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exercising human rights or constitutional rights granted
by Article 28D paragraph (1) of the Basic Law of 1945.
7. That the applicant has an interest in relation to the application
testing of the a quo and is highly interested in
the enforcement of the law to eradicate criminal corruption. That
before the plea of testing a quo was registered in
The Constitutional Court has occurred in the KPK Ethics Committee hearing
consists of Anies Baswedan (Member of the Member), Tumpak H.
Panggabean (Deputy Speaker), Abdul Muktie Fadjar
(member), Bambang Widjojanto (member), Abdullah Hehamahua (member)
where one of the conclusions of the KPK Conduct Committee is contained in points
(4.1) it is:
" That has been proven to be leaking KPK document to be
The concept of the Broadcast Order Letter on behalf of Anas Urbaningrum
with the perpetrator of the Wiwin Suwandi leak authorized to
check and drop its selection in the Assembly's hands
The KPK Employee Considerations Council; " (vide proof P-2).
That after the ruling was read out by the KPK Ethics Committee, Wiwin
Suwandi (KPK Chairman Secretary Abraham Samad) explained in
the interview with Aryo Putranto Saptohutomo and Princess Resyakasih of
merdeka.com that the reason Wiwin Suwandi "provides a copy
sprindik to the two reporters is the simple reason only. In order to
this case (Hambalang case involving Anas Urbanigrum)
soon revealed, then soon to be held in the press, about other leadership signatures could be followed. In addition, Wiwin Suwandi
revealed that "among the five leaders, there is one not
agrees on the preparation of Hambalang's gratification, sir
Busyro Muqoddas. He asked for one more thing. Which
others are already in agreement.(vide proof P-3).
8. That under the description of the Suwandi Wiwin and is associated
with the provisions of Article 21 paragraph (1) Act No. 30 of 2002
about the Corruption Eradication Commission of Corruption has been real and
proved to be the existence of section that is tested in the testing application
The a quo Act has posed a hindration in effectiveness and
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or acceleration of the eradication of criminal corruption caused
the existence of Article 21 paragraph (5) Act Number 30 of 2002
on the Criminal Eradication Commission of the Corruption No provide
legal certainty. In other words, the provisions of Article 21 paragraph (5) Invite-
Invite Number 30 Year 2002 on Tindak Eradication Commission
The corruption of Corruption does not provide any legal certainty in eradication
corruption that is the rights of the Pemohons is provided by Article 28D
paragraph (1) of the 1945 Constitution. Accordingly, the applicant strongly felt rights
the constitutionality was violated and potentially harmed as
guaranteed by the Constitution of 1945 in particular Article 28C paragraph (2) of the Act
Basic 1945.
9. That the applicant has a causal relationship (causal verband)
between constitutional losses by the enactment of the Act
is being honed to be tested due to Article 21 of the paragraph (5) Act Number 30
Year 2002 about the Corruption Eradication Commission clearly
contrary to Article 28D paragraph (1) of the Basic Law of 1945.
The existence of Article 21 paragraph (5) of the Act No. 30 of 2002
about the Collective Corruption eradication Commission
so that any observer decision must be approved and decided
jointly by the Corruption Eradication Commission Chairman has
resulting in the decision making process
and rambling, it can absorb a long time as well as the responsibility
is not clearly charged to whom (a person) is so giving birth
the uncertainty of the law. In other words the decision-making way
required to be together (collective) by the five led
The Corruption Eradication Commission (KPK) is not appropriate in the concept of the country
the laws in which citizens are expecting and required to
obtain legal certainty in the dismantling and eradication
of criminal corruption.
10. That based on criteria as referred to in Article 51
paragraph (1) of the Law No. 24 of 2002 on the Court
Constitution and Decree Number 006 /PUU-III/2005 is very clear that the
The applicant has the legal position in terms of materials test Section 21 paragraph (5)
Act Number 30 of the Year 2002 on the Eradication Commission
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The Criminal Corruption Section Of The Article 28D paragraph (1) The Basic Law
The State Of The Republic Of Indonesia In 1945.
III. Test Request.
1. That test application submitted by the applicant is test
material Section 21 paragraph (5) Act No. 30 of 2002 on
The Corruption Eradication Commission of Corruption to Section 28D paragraph (1)
Basic Law Republic of Indonesia in 1945. As for
the sound of Article 21 paragraph (5) of the Act No. 30 of 2002 on
The Corruption Eradication Commission of Corruption
2. The tested is as follows:
Article 21 paragraph (5) reads:
"The leadership of the Corruption Eradication Commission as referred to in paragraph (2) works collectively"
Next Article 28D paragraph (5) The Basic Law 1945 Act
The test stone reads:
" Everyone is entitled to confession, assurance and protection, and
fair legal certainty as well as the same treatment before
law ".
3. That after being studied carefully on the charge material in Article 21 of the paragraph
(5) Act No. 30 of 2002 on the Commission of Eradication
The Corruption Crimination contains the drawback of a concept
The decision is based on Collegial collectives. Weakness seen in
dismantling the Hambalang project case involving former chairman
General Democrat Anas Urbanigrum, where according to the caption
delivered by Wiwin Suwandi (KPK Chairman of the KPK Abraham Samad)
that of the five KPK leaders there was one leader, M. Busyro
Muqqodas who had not yet agreed to increase the status of the case
in the investigation level, with the argument that it needed one time
the title again. While the KPK chairman Abraham Samad and the leadership
others are already in agreement. Meaning provision in Article 21 paragraph (5) Invite-
Invite Number 30 Year 2002 on the Tindak Eradication Commission
The corruption of the Corruption clearly does not contain any legal certainty that is
a fundamental right for any citizen. In addition, the decision should be
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is taken collectively as also less effective and can inhibit creativity
and the innovation of KPK Chairman Abraham Samad to accelerate
The eradication effort of corruption, where acceleration is The eradication of corruption
represents the aspiration of the applicant and the entire Indonesian citizen.
Along with the application of Section 21 of the paragraph (5) Invite-
Invite Number 30 Year 2002 on the Tindak Eradication Commission
Criminal Corruption Against Section 28D paragraph (1) Basic Law
Republic State Indonesia in 1945, the petitioners requested
The Assembly of Judges who inspected and disconnected the case of a quo to be able to
present and listen to the caption Wiwin Supandi as a witness.
4. That the corruption of corruption in Indonesia is widespread in society.
The development continues to increase from year to year, both from the amount
case and amount of state financial loss and in terms
quality The crimes committed are increasingly systematic as well as the scope
who entered the entire aspect of public life. Therefore in
the eradication attempt of the criminal corruption, whose implementation must be
also performed optimally and effectively, the provision that the retrieval
the decision must be approved and decided jointly by the
The leadership of corruption eradication commission is contrary to the principle
optimal and effective work. This is due to the decision
collectial it then to increase status to
the investigation and suppressor the suspect must first be approved by
all (five) leaders of the KPK. If one member of the KPK does not agree or
another view of the investigation that is likely to have
found two sufficient preliminary evidence then a criminal offense
corruption cannot be improved to the stage The inquiry or
set a person a suspect in alleged criminal conduct
corruption. The determination of the collectical decision contained in
of the charge section 21 paragraph (5) Act No. 30 of 2002
about the Corruption Eradication Commission not being able to
guarantee the right of the petitioners to obtaining legal certainty as
the constitutional right of the Applicants guaranteed in Article 28D paragraph (1) of the Constitution
1945.
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5. That as it has been described above, the petitioners have the right
to obtain a fair legal certainty. This right is the right that
guaranteed in Article 28D paragraph (1) of the 1945 Constitution. As for legal certainty
is an asas in a law state that priorites the cornerstone
laws, decency and fairness in any
policy of running the task and authority of the Eradication Commission
Corruption as mentioned in an explanation of the Act
Number 30 of 2002 on the Commission on Eradication of Criminal Code
Corruption. The provisions contained in the charge matter Section 21 paragraph (5)
Act Number 30 of 2002 on the Commission of Eradication
The Criminal Code of Corruption has led to a constitutional rights loss
cause of the decision based on Collegial collective does not berlandaskan asas
in the formation of laws, breaking the wrineness
and justice for citizens who aim to quickly
liberate the State of Indonesia from deeds of criminal corruption that
is already grounded in the hands of politicians and officials Bureaucracy.
6. That in Article 1 verse (3) is mentioned that "the State of Indonesia is
the state of the law". Based on the basis of the constitution then all
aspects of the formation of laws must conform to
national and principles of law systems in the formation of regulations
laws. Regarding principles in the formation of regulations
laws are mentioned in Section 5 of the Law Number 12
of the Year 2011 on the Establishment of the Invitation Regulation that
in forming the laws must performed
based on the formation of the laws of law including
clarity of purpose, may be implemented, uniacity and usefulness.
Terms of Section 21 paragraph (5) Act Number 30 of 2002
about Corruption Eradication Commission is clearly not
adjudled asas Clarity of purpose, assurance can be implemented and
edayagunaan (usability).
a. It does not contain clarity of purpose. In the form of an independent Corruption Eradication Commission
independent in carrying out its duties and authority and free
of any power is the awareness that eradication
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A corruption criminal that occurred until now has not been able
is implemented optimally. Therefore, the eradication of the action
criminal corruption needs to be enhanced optimally and effectively. However
provisions of Article 21 paragraph (5) Act Number 30 of 2002
about the Corruption Eradication Commission instead
blurts the goal to accelerate the country's efforts in
the eradication of corruption due to the the need for a long enough time
or not effective as it should wait for the approval of the entire leadership
KPK.
b. Assurances can be implemented. That with a collegial decision is certainly not
making sure a case can be emphasized to the investigation stage
and the assignment of someone to be a suspect if one
the leader has not yet approved it. Even though the four leaders
KPK has agreed to be upgraded to the inquiry stage and
the assignment of someone to be a suspect but one KPK Command
states it is not in agreement with the other four KPK Leaders then
The view of the other four KPK leaders is certainly not to be implemented.
c. The happiness of the world. That with collegial decision making can impede
its lacunya of corruption eradication efforts so take
This collegial decision does not have a daycare to accelerate
the eradication of corruption.
7. That does not close the possibility ahead will be the difference
the legal opinions of the leadership of the Corruption Eradication Commission in
increase the legal process of inquiry into inquiry and
increase the legal status of the Witness to the suspect. If the word 2
led by the Corruption Eradication Commission has a legal view that
is different from the 3 other leaders of the Corruption Eradication Commission,
The decision-related decision of corruption is certainly not possible
thus incurable legal uncertainty may be detritable to
the constitutional rights of the petitioners. Therefore, the applicant
decision making by the Corruption Eradication Commission
not necessarily is agreed to be agreed jointly by the whole
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The leadership of the Corruption Eradication Commission (five KPK leaders) but
if it does not get a deliberation in the mufakat then the takers
decisions can be done based on the majority vote. As material
a comparison of the ruling taken by the institution of the Constitutional Court
as a modern and reliable judicial institution in which
decision making in the judge deliberation meeting was conducted
A deliberation for the mufakat. In the event of deliberation not reaching
the decision of the decision was taken by the most votes. In the event the verdict cannot be
achieved the most votes, the final vote of the chairman Meeting of the Consultative Meeting
The judge determined. The Constitutional Court decision-taking mechanism
is certainly more of a legal certainty as well as more effective.
The applicant wants in a decision making at the institution ' s institution
The Corruption Eradication of the Applicant is highly effective. love and be proud,
where decision-making is collectively and collegial can be interpreted
that if the Corruption Eradication Commission is not able to
together reach a deal and agree in determining
the legal process and the legal status of someone being examined at the KPK
then decision-taker can be done through the sound mechanism
most decisions can be done through the vote
The most KPK leadership.
IV. Petitum.
Based on those matters above, the petitioners are begging to the Assembly
The Constitutional Court of Justice to cut off as follows:
1. Grant a request to test the provisions of Article 21 paragraph (5)
Act No. 30 of 2002 on the Commission of Eradication
The Criminal Code of Corruption to the Constitution of the Republic of the Republic
Indonesia Year 1945, in particular Article 28D paragraph (1) UUD 1945.
2. Stating that the provisions of Article 21 paragraph (5) Act No. 30
of 2002 about the Corruption Eradication Commission of Corruption are
in accordance with the Constitution of the Republic of Indonesia of Indonesia Year
1945 on parole (Constitutional conditionally) i.e. constitutionality
as a collective and collegial decision-taker can
be interpreted that if the leadership of the eradication commission of corruption cannot be
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jointly reach an agreement and agree in
determining the legal process and the legal status of the person being
checked in the KPK then the decision taker can be done through
The most sound mechanism for decision making can be done
by the most votes of the KPK leadership.
3. Ordered the loading of this termination in the News of the Republic of the Republic
Indonesia as it should be.
Or if the Constitutional Court of the Constitutional Court argues otherwise, please
the verdict is in its fair (ex aequo et bono).
[2.2] weighed that to prove its control, the applicant
has submitted a written proof tool given the P-1 proof mark up to
the proof of P-3, as follows:
1. Proof of P-1: Photocopy Act No. 30 of 2002 on
Commission of Eradication Of Criminal Corruption;
2. Proof P-2: Photocopy Injection Number 01/KE-KPK/4/2013;
3. Evidence P-3: Photocopying news clippings from www.merdeka.com, titled
Wiwin's Exclusive Interview On Sprindik Anas;
[2.3] A draw that the Government on the trial of June 26, 2013
has provided an oral description and also has provided a written caption
to the Court of Justice on August 21, 2013 which in
the point represents the following:
I. The Subject of the applicant
That according to the Applicant Provision Article 21 paragraph (5) of the KPK Act
states "The leadership of the Corruption Eradication Commission as
referred to in paragraph (2) works collectively" no provide certainty
the law, ineffective and optimal due to the retrieval pattern
collective decision of such collegial then to increase the status
to the inquiry and designation of the suspect must be approved by The entire leadership
KPK This is contrary to Article 28D paragraph (1) of the 1945 Constitution.
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II. About Legal Standing (Legal Standing) The applicant
In accordance with the provisions of Article 51 of the paragraph (1) Act No. 24 of the Year
2003 on the Constitutional Court as amended by
Act Number 8 2011, stating that the applicant is
the party who considers the rights and/or its constitutional authority is harmed
by the entry of the law, that is:
a. Individual citizens of Indonesia;
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 Republic of the Republic of the Republic
Indonesia that is governed in the promulcity;
c. the public or private legal entity; or
d. country institutions.
The above provisions are expressed in its explanation, that what
with "constitutional rights" is the rights set in the Act
The Basic State of the Republic of Indonesia in 1945, then first. must
explain and prove:
a. Qualify for the a quo as referred to in Article
51 paragraph (1) Act No. 24 of 2003 on the Court
Constitution as amended by Act No. 8
Year 2011;
b. The rights and/or its constitutional authority in qualifying are referred to
which are considered to have been harmed by the enactment of the tested Act;
c. Rights and/or constitutional authority of the Applicant as a result of
the enactment of the legislation was moorted.
Further the Constitutional Court of RI has provided the understanding and limitation
cumulative loss of the loss of the laws of the Republic of Indonesia. the right and/or constitutional authority that
arises due to the enactment of an Act according to Article 51 of the paragraph (1)
Act No. 24 of 2003 on the Constitutional Court (vide
Putermination Number 006 /PUU-III/2005 and subsequent rulings), should
meet 5 (five) terms namely:
a. the constitutional right of the applicant given by the Act
Basic State of the Republic of Indonesia in 1945;
b. that the constitutional right of the applicant is considered by the applicant to have
harmed by an Act that is tested;
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c. that the intended constitutional loss is specific
(special) and actual or at least as potential as
reasonable reasoning can be ascerated to occurred;
d. (causal verband) between the loss and
the enactment of the legislation is being treated for testing;
e. It is possible that by the request of a request then
the constitutional loss postured will not or no longer occur.
Over those things above, may the need be questioned the interests of the
applicant whether it is appropriate as a party to assume the rights and/or
its constitutional authority is harmed over the provisions of Section 21
paragraph (5) of the KPK Act. According to the Government, the applicant is not a specific person/citizen who is specifically and specifically attributable to the
decision making by the KPK leadership under Article
21 paragraph (5) of the KPK Act because based on the prompts submitted by
The applicant does not specify any specific and tangible reasons
harms the applicant,
Based on that above, the Government argues the applicant in
this request does not meet the qualifications as the party to the legal position ( legal standing) and is appropriate if Your Majesty
Speaker/Assembly Justice of the Constitutional Court wisely states the request of the applicant is not acceptable (niet ontvankelijk verklaard).
But so the government is giving up entirely to His Majesty
The Chairman/Assembly of the constitutional judges to consider and judge
whether the applicant has a legal position (legal standing) or not,
as defined by Article 51 of the paragraph (1) of the Number Act
24 of 2003 on the Constitutional Court as amended
with the Act No. 8 of 2011, and based on the ruling-
The Court of Justice Previous Constitution (vide Putermination Number 006 /PUU-
III/2005 and Putermination Number 11 /PUU-V/2007).
III. Government Explanation Of The Application ' s Plea Material To Be Examined
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That one of the demands of the reform in 1998 was eradication
collusion, corruption and nepotism in the practice of holding the government
and statehood, as a result of the insistence Strong from society,
then responded by all state organizers, even poured
in the MPR Decree number vIII/MPR/2001 on Recommendation Direction
The Eradication Policy And The Corruption Prevention, Kolusi, and Nepotism,
that in its Konsiderance among others states " that the problem
corruption, collusion, and nepotism that plagued the Indonesian nation is already very
seriously, and is a tremendous crime and shakedown of the joint-
The joint of the nation-nation and state of life ". Based on The reason that
is included in the Considerans of the People's Consultative Assembly
sets out some direction for the eradication policy of corruption, collusion, and
nepotism among others as follows:
a. accelerating legal proceedings against the Government apparatus especially
law enforcement apparatus and alleged state organizer
conduct corruption, collusion, and nepotism practices, as well as may be done
administrative actions for smoothly streamline the legal process;
b. committing more serious legal action against
all corruption cases, including corruption that has occurred in the past, and
for those who have been found guilty to be sentenced that
the berthing;
c. encourage widespread public participation in supervising and reporting
to the authorities of various alleged corruption practices, collusion,
and nepotism conducted by civil servants, organizers
countries and community members;
d. Revoke, change, or replace all the rules of the invite-
invitation as well as state organizer decisions that
indicate protecting or allowing for corruption, collusion, and
nepotism;
e. revised all laws regarding
corruption so in sync and consistent between one with the other
others;
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f. forming the Act as well as its implementation regulations for
the corruption prevention of which it charges is about
The Commission on Eradication Of The Corruption Criminal;
That is based on the reasons in the MPR Decree it has been implied and
letter that corruption, collusion, and nepotism that plagued the nation
Indonesia is already very serious, and is a tremendous crime
(extra ordinary crime) so handling it must be done by an
an institution that is absolutely right and clean. Therefore, if
then the expected institution is expected to materialized and
its members are expected to require certain terms of office to be able to
meet the goal in eradication. corruption, collusion, and
nepotism, so that the terms of office are set differently by
the leadership and other members of the institution. In this case, formation of the Corruption Eradication Commission on the Corruption Commission on a strong spirit to
eradicate corruption which has been a tremendous crime in
Indonesia, so the terms of the a position for the leadership and commission members
specified in accordance with expectations that wish to be realized;
That the provisions of Article 43 of the Law No. 31 of 1999 concerning
The Eradication of Criminal Corruption as amended. with
Act Number 20 of 2001 on Changes to the Invite-
Invite Number 31 Year 1999 on the Eradication of Criminal Tindak
Corruption, ordered to form the Tindak Eradication Commission
The Corruption Criminal Court tasked with preventing and
eradication of corruption. The then-called
Corruption Eradication Commission (KPK), the KPK is a state institution that
in carrying out its duties and authority is independent and free
of any influence of power. The KPK has the authority to
conduct coordination and supervision, including conducting an investigation,
investigation, and prosecution of criminal corruption charges.
Against the application of Section 21 of the paragraph (5) the KPK Act, The government
may provide an explanation as follows:
1. That the provisions of Article 21 paragraph (5) of the KPK Act states " Chairman
The Corruption Eradication Commission as referred to in paragraph (2)
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works collectively " . The explanation of Article 21 of the paragraph (5) of the KPK Act
states"The meaning of "working collectively" is
that any decision making must be approved and decided
jointly by the leadership of the Corruption Eradication Commission ".
According to the Government, these provisions are closely related to the task,
the authority as well as the outstanding KPK obligations, so as to
prevent the occurrence of misuse of the KPK-owned authority then
required The leadership of the KPK has proficiency, honesty and
adequate moral integrity, is not involved or related to the act
criminal criminal either prior to mine or as long as it is
The head of the KPK (Article 29 of the KPK Act). Included in the process
decision making must be approved and decided
together by the Chairman of the Corruption Eradication Commission.
2. That Act-forming in addition to providing authority that
is outstanding to the KPK, as well as realizing the need to build up the source system
the human power that will lead and manage the KPK. The Act
gives you a strong legal basis, so that the human resources
it can be consistent in carrying out its duties and authority
in accordance with the provisions of this Act. One of them is through
a decision-making mechanism which must be approved and decided
jointly by the KPK leadership. The duties, authority, and
obligations of the KPK are outstanding and are not owned by the agency
other law enforcement must be exercised with the principle of prucency.
accountable, transparent, and upholding the law without any bit
tolerance for deviation (zero tolerance).
3. That the collective and collegial meaning contained in Article 21 of the paragraph (5)
The KPK does not conflict with Article 28D of paragraph (1) of the 1945 Constitution because
the existence of the collective meaning of the collegial actually embodied the principle of balance (check and Balances) as to improve status to the investigation and assignment of suspects is a form
decision making to be approved and decided
together by the leadership of the Corruption Eradication Commission After
there are two more evidence of decency. Cause, so set
as a suspect in a corruption case by the KPK, carries
19
the consequences will be brought up to the court (vide Article 40 of the KPK Act).
These provisions demand a caution for the KPK leadership before
setting the investigation process a case. Therefore, before
assign a person as a suspect, the KPK is charged for working
as maximum and as careful as possible (professional), especially related
with proof of proof.
4. That regarding the presumption of the applicant at a point 7 of the 15 which
says " ...If the word 2 of the KPK leadership has a legal view
that is different from the other 3 KPK Leaders in taking
the decision-related decision Corruption certainly cannot be done so
raises the legal uncertainty .. dst" is untrue and not
based.
That as a follow-up to the implementation of Article 21 of the paragraph (5) of the KPK Act
that, the KPK institution completes it with Commission Regulation No. 3
In 2009 on the Governance Decision Making of the KPK
where it is set in Chapter III sbb;
Article 5:
(1) The decision-making must be performed by a minimum of 3 (three) members
Leading (quorum) in case of not reaching quorum used channel
existing communication between the leadership to convey his opinion
about the problem solution submitted or an urgent pattern.
(2) The decision-making is based on deliberations to reach the mufakat
is done after each member of the Leadership suggests a suggestion and/or
opinions to the decision. will be set.
(3) In terms of decision making as specified in paragraph (2) is not
achieved by vote then decision making by voice
most.
(4) If decision making there is a number of votes weighed, then
The leadership requests the voice of the Deputy/Counsel/Related Expert Staff
with the decision to be set.
(5) Leaders before taking the decision may listen to suggestions
and/or opinions from the Advisor/Dewhites/Other Parties in accordance with the regulations
applicable and or the KPK code of conduct.
20
(6) The entire leadership is responsible for the decision that
specified.
Next in Section 7 is set:
(1) Decision retrieval may be performed by less 3 (three) members
Leadership by meeting mechanism or using any other mechanism
such as utilization Information technology, if:
a. the state of urgency;
b. is operational;
c. The Lead Member is temporarily hindrous;
d. The member of the Chairman is temporarily suspended, or
e. Members of the Chairman Stop or are dismissed.
(2) The leadership who has taken the decision because as intended
on the paragraph (1) the letter a, b and c must immediately notify
Other leaders and Responsible for the decision
has not been specified.
(3) The leadership is referred to in paragraph (1) the letter d and e not
is responsible for the established decision as
referred to paragraph (2).
Based on that explanation the applicant's presumption is not
true and that is only a sense of concern from the applicant
only because the KPK has set up an internal mechanism regarding the Tata Way
The KPK leadership decision making the case handling-
case can be done well
5. The government greatly appreciated the efforts made by
the public in general and the petitioners in particular
contributed to the donation and participation of thought in the effort
the eradication of Corruption in Indonesia. In the future of thoughts
the society would be a very valuable reference
for the establishment of the Act.
IV. Conclusion
Based on that explanation above, the Government pleads to Yang
Noble Chairman/Assembly of the Constitutional Court of the Republic of Indonesia which
21
checking, prosecuting, and severing of Act testing
No. 30 Year 2002 about the Corruption Eradication Commission
against the Republican Basic Law Indonesia Year 1945,
to be able to give the verdict as follows:
1. Rejecting the applicant's testing request for the whole or the no-
is not to be accepted
(niet ontvankelijk verklaard);
2. Accept the Government Description as a whole;
3. Stating that the provisions of Article 21 paragraph (5) of Act Number 30
of 2002 on the Corruption Eradication Commission of Corruption are not contradictory with Article 28D paragraph (1) of the Basic Law of the Republic of Indonesia in 1945.
[2.4] A draw that the House of Representatives (DPR) at the trial
dated 26 June 2013 has given an oral description and has also been
giving written information to the Court of Justice on 5
July 2013, which in turn describes the following:
A. The provisions of the KPK Act, which Tested For The Constitution Of 1945
The applicant in the plea a quo submitted the testing
Article 21 paragraph (5) of the KPK Act reads: " The leadership of the Eradication Commission
Corruption as referred to in paragraph (2) works collectively ".
The petitioners assume the provisions of article a quo contradictory
with Article 28D of paragraph (1) of the 1945 Constitution which reads: "Every person
reserves the right to the recognition, guarantee, protection, and legal certainty that
is fair and the same treatment before the law"
B. The Rights And/Or Constitutional Authority Considered The Petitioners Have Been Harmed By The Enactment Of Article 21 Paragraph (5) of the KPK Act
The petitioners in the plea a quo, posited that the right
its constitution has been harmed and violated or at least a potential
aggrieved by the Article 21 paragraph (5) of the KPK Act in which it states:
22
1. That the provisions set forth in Section 21 of the paragraph (5) of the KPK Act do not
in accordance with the foundation of laws, wrineness and
justice in any country's organizer policy which is
the principle that must be met in the legal state.
2. That the existence of the a quo has resulted in the retrieval process
the decision is retractable, it can absorb a long time as well as
the responsibility is not clearly charged to whom it is giving birth
legal uncertainty.
3. That based on such matters above, the applicant assumes
the provisions of Article 21 paragraph (5) of the KPK Act which states " Commission leadership
The Corruption Eradication as referred to in paragraph (2) works
collective " does not provide legal, ineffective and
optimal and it is in conflict with Article 28D paragraph (1) UUD
1945.
C. Representative of the DPR RI
I. Legal standing (Legal Standing)
About legal standing (legal standing) the petitioners, the House
submit fully to the Speaker/Assembly of the Court of Justice
The noble Constitution to consider and assess whether
The applicant has a legal standing (legal standing) or not
as provided by Article 51 of the paragraph (1) of the Act on
The Constitutional Court and by the Constitutional Court ' s Decree
Number 006 /PUU-III/2005 and Number 011 /PUU-V/2007.
II. Testing of the KPK Act.
a. That the practice of corruption, collusion, and nepotism in the holding
states in the Republic of Indonesia are already very serious and are
outstanding crimes (extraordinary crime) that can be destructive
the joints of life Society, nation and country that
can finally inhibit the embodiment of welfare for
the entire Indonesian people who are one of the goals in the form
the government of the Republic of Indonesia as it is listed in
Opening of the 1945 Constitution.
23
b. That related to that above, it has been an agreement and
a joint determination of the entire Indonesian people to realize the country that
is clean and free of corruption, collusion and nepotism (KKN) said
in the Decree of The People ' s Consultative Assembly Number XI/MPR/1998
about the Clean and Free State Smuggling Of Corruption,
Kolusi and Nepotism.
c. That in order to execute the Mandate MPR RI Number
XI/MPR/1998 as well as to realize the hosting of the
clean and free KKN, the DPR as an institution of the Invite-
Invite along with the President has create:
1. Act No. 28 of 1999 on Smuggling
The Clean and Free State of Corruption, Kolusi and Nepotism;
2. Act No. 31 Year 1999 on Eradication
The Criminal Code of Corruption as amended with the Invite-
Invite Number 20 of 2001 (later called the Tipikor Act);
d. That the Act-forming is fully aware,
The eradication of criminal acts of corruption included in the catagory
(extraordinary crime) the handling cannot be fully done
by the institutions already there was before. Accordingly,
under the provisions of Article 43 of the Tipikor Act, it has been ordered to
establish the Corruption Eradication Commission which
is tasked with preventing and eradicating corruption.
e. That is based on the provisions of the provisions of Article 43 of the Tipikor Act, then
through Law No. 30 of the Year of 2002 set the state institution
in charge of preventing and eradicating corruption
called the Corruption Eradication Commission (KPK), which has
the authority to conduct coordination and supervision, including
conduct investigations, investigation, and prosecution for crimes
of criminal corruption.
f. That the Act of Law has granted the
extraordinary authority to the KPK in the task of duty, authority and
its obligations which are not owned by other law enforcement agencies. By
hence every step in decision making by Leadership
24
KPK must be carried out with a prucency principle. Accountable,
is transparent, and upholds the law without a single ounce of tolerance for
deviation (zero tolerance). In relation to that of the KPK Act
in particular the provisions of Article 21 paragraph (5) have expressly set out
that the leadership of the Corruption Eradication Commission is working collectively,
and in the Description of Article 21 of the paragraph (5) the KPK Act has been described the meaning
working collectively is that any decision making
must be approved and decided jointly by the Leadership
The Corruption Eradication Commission.
g. That the provisions of Article 21 paragraph (5) of the KPK Act are formulated closely
with the execution of the task, authority and obligations of the KPK which
is extremely remarkable that must be exercised with the principle of prudness.
accountable, transparent, and upholding the law without any one
tolerance for deviation (zero tolerance) as well as aiming for
preventing the occurrence of exceptional abuse of authority that
is owned KPK, then in the decision making process must be approved
and decided jointly by the Leadership of the Commission
Corruption Eradication.
For example to increase status to the inquiry and assignment
sespersons being a suspect is a form of
decision making which must be approved and decided
together by the KPK Leadership after being filled with two proofs
sufficient decency. Because, so set as a suspect
in a case of corruption by the KPK, bringing the consequences will be
brought up to the court (vide Article 40 of the KPK Act). This provision
demands caution for the KPK leadership before setting the process
the investigation of a case. Therefore, before setting
a person as a suspect, the KPK is charged for working as maximal
and as careful as possible (professional), especially with regard to
proof of proof and that it must be approved and
decided together to meet the principle of prucency.
accountable, transparent, and upholding the law without any bit
tolerance for deviation (zero tolerance).
25
h. That in the opinion of the House phrase "works collectively" which
contained in Article 21 of the paragraph (1) and paragraph (5) of the KPK Act is not contradictory
with the principle of legal certainty as governed by Article 28D paragraph (1)
Constitution of 1945. According to the House of Representatives meaning the phrase "works collectively"
as described in the vagueness of article a quo of its existence
is indispensively necessary to meet the principle of prudness. account,
is transparent, and upholds the law without a single ounce of tolerance for
deviation (zero tolerance), which the principles are highly
are required in the law enforcement process.
i. That long or fast KPK in carrying out its task
eradites the corruption of corruption in particular in the cases
in particular not as well as the provisions of Article 21 paragraph (5) Act
KPK elicits legal uncertainty. and contrary to
the constitution. According to the DPR it is related to the implementation of norms
The KPK Act by the KPK. which concerns us together including
in the Applicant as part of the community component
to conduct surveillance on the performance KPK corresponds to
the provisions of the laws.
Thus the House pleads if the Speaker/Assembly of the Constitution of the Constitution
a noble one gives an amar the verdict as follows:
1. The DPR's description was accepted for the whole;
2. Stating the provisions of Article 21 paragraph (5) of the KPK Act does not conflict with
Article 28D paragraph (1) of the Constitution of 1945.
3. Stating the provisions of Article 21 paragraph (5) of the KPK Act still has the power
the law is binding.
[2.5] weighed that to shorten the description in this ruling,
everything that happened at the trial was quite appointed in the news event
the trial, which is one unbreakable unit with
this verdict.
26
3. LEGAL CONSIDERATIONS
[3.1] weighed that the intent and purpose of the applicant's plea
is to test the constitutionality of Article 21 of the paragraph (5) Act Number 30
Year 2002 on the Criminal Eradication Commission of the Criminal Code. Corruption (Sheet
The State of the Republic of Indonesia of 2002 Number 137, Additional State Sheet
Republic of Indonesia Number 4250, subsequently called the KPK Act) against Article
28D paragraph (1) of the Constitution of the Republic of Indonesia 1945
(next called UUD 1945);
[3.2] A draw that before considering the subject of a request,
The Constitutional Court (later called the Court) first would
consider:
a. The Court's authority to prosecute a quo; and
b. (legal standing) the applicant;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] weighing that under Article 24C of the paragraph (1) Constitution of 1945, Article 10
paragraph (1) letter a Law Number 24 of 2003 on the Court
The Constitution as amended by Act Number 8 of the Year
2011 on Changes to the Law Number 24 Year 2003 concerning
Court Constitution (State Of The Republic Of Indonesia Year 2011 Number
70, Additional Sheet Of Country Indonesia Republic Number 5226, next
called the MK Act), and Article 29 paragraph (1) letter a Act No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
Year 2009 Number 157, Additional State Sheet of the Republic of Indonesia Number
5076), one of the constitutional authority of the Court is to prosecute in
the first and last level of which the verdict is final to test the Invite-
Invite against the Act Base;
[3.4] weighed that because it was moted by the Petitioners
is the testing of the constitutionality Section 21 paragraph (5) of the KPK Act against the Article
27
28D paragraph (1) UUD 1945, then the Court of Justice to prosecute
plea a quo;
Occupation of Law (Legal Standing) The petitioner
[3.5] A draw that under Article 51 of the paragraph (1) of the MK Act, which may
apply for testing the Act against the Constitution of 1945 is
those who consider the rights and/or its constitutional authority
provided by the Constitution of 1945 are harmed by the expires an Act, that is:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 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 31 May 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-
subsequent ruling, the establishment that loss of rights and/or authority
constitutionally referred to Article 51 of the Article 51 paragraph (1) the MK bill must meet
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 are considered
aggrieved by the enactment of the test-mover of testing;
28
c. The constitutional losses must be specific (special) and actual or
at least any potential that the reasonable reasoning can be assured
will occur;
d. (causal verband) link between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that with the request of the application,
Constitutional losses such as the postured will not or no longer occur;
[3.7] In the draw that the applicant I is an Indonesian citizen
professed as an advocate by the terms of the perinvite rule-
an invitation that applies advocate of status as law enforcement
is legally obligated to exercise the duty of upholding justice
including fight for norms deemed to be contrary to
Constitution of 1945 for citizens ' rights country can be guaranteed and accomplished in accordance
with the principles of the state of Indonesia as a legal state. As for Pemapplicant II
is a citizen of Indonesia who is a citizen reporter who
must be aware of the law and to have responsibilities like the applicant I in
uphold the legal values that respect and guarantee the performance of an asas
legal certainty;
[3.8] It is balanced that the petitioners in the underlying preposterate
have the constitutional right guaranteed in Article 28D paragraph (1) of the 1945 Constitution
that states, " Everyone is entitled to the recognition, warranty, protection,
and fair legal certainty as well as the same treatment before the law ".
According to the Constitutional Applicants it has been harmed by
expiring the provisions of Section 21 paragraph (5) of the KPK Act that states, "Leadership
The Corruption Eradication Commission as referred to in paragraph (2) works
collectively", for the reasons that are in the following:
a. With Article 21 paragraph (5) of the KPK Act has resulted in
the legal uncertainty for the applicant, as it is not
in accordance with the foundation of the negotiations, the eness and
of justice in any policy. hosting a country that is
an asas that must be met in a legal state. It has been
blocking the petitioner for exercising human rights or rights
the constitutional granted by the 1945 Constitution;
29
b. Article 21 paragraph (5) of the KPK Act has hinded effectiveness and/or
acceleration of the eradication of criminal corruption, in other words
such provision does not provide legal certainty in
the eradication of corruption which is the right The applicant;
c. That the applicant has a responsibility to enforce
the law, consider Article 21 of the paragraph (5) of the KPK Act to have incur
the uncertainty of the law because of the decision making to be approved
and it is decided Together with the leadership of the Commission
Corruption Eradication has resulted in the retrieval process
The decision is spiring out and riddles. In other words, tata
the way the decision-making decision should be together
(collective) by the five leadership of the Corruption Eradication Commission is not appropriate
in the concept of the state of law, because citizens are expecting and
is required to obtain legal certainty in the dismantling and
eradication of the criminal corruption;
[3.9] It is balanced that based on the postulate of the applicant above,
according to the Court, the petitioners who care for the eradication of the follow
criminal corruption meets qualification as a citizen Indonesia's country that
has its constitutional right and its constitutional rights may be harmed
by the enactment of Article 21 paragraph (5) of the KPK Act. Accordingly, the applicant
has a legal standing (legal standing) to apply for a quo;
[3.10] It is balanced that by the court of competent authorities
a request quo and the applicant have a legal standing (legal standing)
to apply for a quo, next the Court will
consider the subject;
In The Subject
Court Opinion
[3.11] Draw that the subject of the applicant is testing
constitutionality of Article 21 paragraph (5) of the KPK Act against Article 28D paragraph (1) of the Constitution
1945, for the reasons that are listed below:
30
1. Article 21 paragraph (5) of the KPK Act contains the drawback of a concept
a decision based on the collegial collective. It can be seen
in the process of dismantling the Hambalang project case. Of the five leaders
KPK there is one leader who has not agreed to raise the status of the case
to the inquiry level with the reason required one case title
again, making it less effective and able to inhibit creativity and innovation
a KPK Chairman to speed up the corruption eradication effort
which is also the aspiration of the petitioners. As such, Article 21
paragraph (5) of the KPK Act does not contain any legal certainty;
2. A decision based on the collegial collective defined in Article 21 of the paragraph
(5) The KPK laws are not based on the principles of regulation
laws, violating the principle of disobedience and justice for the citizens
the country that aims to quickly liberate the country of Indonesia from
an act of criminal corruption that is already grounded in circles
politicians and bureaucratic officials;
3. Decision making by the Corruption Eradication Commission
should not be interpreted jointly by the entire Leadership
Corruption Eradication Commission but if there is no deliberation for
mufakat then Decision making can be performed on the highest possible votes
so that it can guarantee legal certainty;
[3.12] Draw that after the Court examined with the sacsame
the applicant ' s plea, reading and listening description
Government and DPR, as well as checking the evidence that submitted by the applicant, the Court argued in the following:
[3.12.1] That the KPK is an institution formed under the Invite-
Invite and is an institution not expressly ordered
The impation of the 1945 Constitution. The establishment of institutions related to
the functioning of the judicial powers including the KPK has a constitutional basis
in Article 24 of the paragraph (3) of the 1945 Constitution which states, "Another Badforce
its functions are related to Judicial power is set in law ".
In order for the eradication of the criminal corruption as mandated
by the People's Consultative Assembly Number XI/MPR/1998 assembly of
Organizing State Yang Clean And Free Corruption, Collusion, And Nepotism,
31
established Law No. 31 Year 1999 on Eradication
The corruption of the Corruption one its provisions mandates
the formation of the KPK. Aside based on the constitutional juridical basis
that, the formation of the KPK was also conducted by philosophical and sociological factors,
a spirit of the eradication of corruption in the beginning of the reforms that have been
put it. criminal corruption as an extraordinary crime, whose efforts
his blessing can no longer be done normally, but prosecuted the way-
a remarkable way anyway. On the other hand, government agencies are handling
corruption cases of corruption have not been functioning effectively and efficiently in
eradiating the criminal corruption. Accordingly, the KPK is required with
the principal task and the authority as follows (vide Section 6 and Section 7 of the KPK Act):
1. Coordinate with the agency that is authorized to do
the eradication of corruption charges.
2. Conducting a supervision of the agency authorized to do
the eradication of the criminal corruption.
3. Conduct investigation, investigation, and prosecution of criminal charges
corruption.
4. Committing acts of criminal corruption prevention; and
5. Conducting monitors against the holding of state government.
The agency also adds to a row of agencies that carry out the eradication
corruption among other Prosecutors, Police, and financial audit agencies
the government for Accelerate the eradication of corruption in order
embodied good governance for the sake of the welfare of the people;
[3.12.2] That with its position to coordinate and supervise
the agencies that are authorized to do The eradication of corruption, the position of the KPK being
is very important and strategic. Even in performing a supervision of
the eradication of corruption that other agencies do, the KPK may take
over the handling of the corruption eradication being carried out by other agencies
in order to be more effective. In addition, in performing the authority of the KPK
is authorized to perform wiretapping and recording the talks
[vide Section 12 paragraph (1) letter a KPK Act] and must not issue a letter
a termination order of the inquiry In a case that is being sired.
All such authority in addition to other regulated authority
The KPK Act indicates a special and exceptional authority for
32
is doing the eradication of corruption. Such great authority must be balanced
with caution that it is not abused. From that consideration,
according to the Court is reasonable enough that the KPK Act that determines the leadership
KPK takes the decision collectively the collegial [vide Article 21 paragraph (5) Act
KPK] because it is, among other things, to avoid error or error
in taking exceptional action. It is also intended that
KPK acts extra careful in taking legal decisions in
the eradication of corruption, because if not so, or simply given
the authority to a chairman or with Member-majority decision
leader, would be feared for error and error or
misuse of KPK by other political forces outside the KPK. In addition, KPK
is not intended as the only corruption eradication agency
which is in charge of the entire corruption case, but is merely an institution
with the special authority granted by the Act to
perform certain privileges, among other things, handle corruption crimes
which: a) involving law enforcement authorities, state organizers, and others
in relation to criminal corruption committed by the apparatus
law enforcement or state organizer; b) gets the attention that
insofar society; and/or c) concerns the least country losses
Rp.1,000.000.00 (one billion rupiah) [vide Article 11 of the KPK Act];
[3.12.3] That by certain cases handled by the KPK,
according to the Court, which in its decision must be approved by
all leadership The KPK [vide Article 21 verse (5) of the KPK Act] is the policy of
forming an open law policy (opened legal policy).
The court judges that the collegial collective authority does not incur
uncertainty of law and injustice, but rather the collective leadership
collegial is for legal certainty as well as avoiding misrepresentation and error.
errors in carrying out his authority;
[3.13] Draw that based on the entire description of consideration
the above, according to the Court, the Applicant Dalil regarding
testing of the constitutionality of Article 21 verse (5) The KPK Act is unwarranted according to
the law;
33
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] Dalil-dalil applicants are unwarranted by law;
Based on the Basic Law of the Republic of Indonesia Year
1945, Act Number 24 Year 2003 on the Constitutional Court
as it has been amended with 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 (state Sheet
The Republic Of Indonesia In 2009 Number 157, Additional Sheet Of State
Republic Indonesia Number 5076).
5. AMAR RULING,
PROSECUTING,
DECLARING refusing the Petitioners for the whole;
So decided in a Consultative Meeting by
nine Constitutional Judges, M. Akil Mochtar, as Chairman Arrested
Member, Achmad Sodiki, Hamdan Zoelva, Arief Hidayat, Anwar Usman,
Muhammad Alim, Harjono, Maria Farida Indrati, and Ahmad Fadlil Sumadi,
respectively as Member, at Monday, the twelfth, month August, year two thousand thirteen, and spoken in the plenary session of the Constitutional Court open to the public at on Thursday, the fourteenth date, in November, the year two thousand thirteen, completed pronounced at 11.20 WIB, by eight Judges of the Constitution, namely Hamdan Zoelva, as Chairman of the Member, Arief Hidayat, Anwar Usman, Muhammad Alim, Harjono,
34
Maria Farida Indrati, Ahmad Fadlil Sumadi, and Patrialis Akbar, respectively
as Member, accompanied by Saiful Anwar as Panitera
Replacement, attended by the The applicant/his power and the Government or the
represents, without the presence of the House of Representatives or the representing.
CHAIRMAN,
ttd.
Hamdan Zoelva
MEMBERS,
ttd.
Arief Hidayat
ttd.
Anwar Usman
ttd.
Muhammad Alim
ttd.
Harjono
ttd.
Maria Farida Indrati
ttd.
Ahmad Fadlil Sumadi
ttd.
Patrialis Akbar
PANITERA REPLACEMENT,
ttd.
Saiful Anwar
