Key Benefits:
RULING Number 9/PUU-X/2012
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and last,
dropping the ruling in case of Test Number 40 Year
2004 on the National Social Security System against the Basic Law
The State of the Republic of Indonesia in 1945, submitted by:
[1.2] 1. Name: Fathul Hadie Utsman
Address: Tegalpare RT/RW 04/01 Muncar, Banyuwangi,
East Java
2. Name: Prof. -DR. Abdul Halim Soebahar, MA Address: Kertanegara Road IV/88 Jember, East Java
3. Name: DR. -Abd. Kholiq Syafaat, MA Address: Grand Block RT/RW 02/04 Tegalsari, Banyuwangi,
East Java
4. Name: Ahmad Nur Qomari, S.E., M.M., Ph.D Address: Seventeen University August Banyuwangi
5. Name: DR. M. Hadi Purnomo, M. Pd Address: High School Darusshalah Jember East Java
6. Name: Dra. Hamdanah, M. Hum Address: Kertanegara Road IV/88 Jember, East Java
7. Name: Dra. Sumilatun, M. M Address: Tegalpare, RT/RW 04/01 Muncar, Banyuwangi,
East Java
8. Name: Sanusi Affansi, S.H., M.H. Address: New Kalilas RT/RW 04/01, Kalibaru
Banyuwangi, East Java
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9. Name: Imam Mawardi Address: Tegalpare, RT/RW 01/03 Muncar, Banyuwangi,
East Java
10. Name: Jaelani Address: Tegalpare, RT/RW 04/01 Muncar, Banyuwangi,
East Java
10. Name: Imam Rofii Address: Tegalpare, RT/RW 01/02 Muncar, Banyuwangi,
East Java
In this regard under the Special Power Letter dated 10 November 2011
authorized the Fathul Hadie Usman address in Tegalpare RT/RW 04/01 Muncar, Banyuwangi, East Java to act for and over
name of power giver;
Next is called as ------------------------------------------------------------ para The applicant;
[1.3] Read the request of the para The applicant;
Heard the applicant ' s description;
Checking the evidence submitted by the Applicant;
2. SITTING LAWSUIT
[2.1] A draw that the petitioners apply with
a letter of application dated 10 November 2011 received in Kepaniteraan
Constitutional Court (subsequently called the Court of Justice) on
December 19, 2011, on the basis of the Receipt Receipt of the Number
19 /PAN.MK/ 2012 and recorded in the Book Registration Book with
Number 9/PUU-X/2012 on 17 January 2012, which has been corrected with
an application dated February 12, 2012 and received in Kepaniteraan The Court
on February 16, 2012 that at its point outlined things as
following:
A. Court Authority 1. That Article 24 paragraph (2) of the 1945 Constitution states, " Judicial Power
is done by a Supreme Court and a judicial body located
under it in the general judicial environment, the judicial environment
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the religion, the military judicial environment, the judicial environment of the enterprise
state, and by a Constitutional Court ";
2. That Article 24C paragraph (1) of the Constitution of 1945, Article 10 of the paragraph (1) of the letter a Invite-
Invite Number 24 of 2003 on the Constitutional Court (Sheet
The State of the Republic of Indonesia in 2003 No. 98, Extra sheet
The Republic of Indonesia Number 4316, further called the MK Act), which
has been changed with the Act No. 8 of 2011 on
The Changes to the Law No. 24 of 2003 concerning
the Constitutional Court), and Article 29 of the paragraph (1) of the letter a Law
No. 48 of 2009 on Justice Power (Country Lembar
Republic Indonesia Year 2009 Number 157, Additional State Institute
Republic of Indonesia Number 5076) stated " Constitutional Court
Authorities prosecute at first and last rate that its verdict
is final to test "Constitution of the Republic of Indonesia in 1945".
That the petitioners applied for a materiile test right
40 Year 2004 on the National Social Security System (next
called Act 40/2004), Article 14 on the phrase " incrementally and
explanation " as well as Section 17 of the paragraph (5), Section 1 item 3 on the phrase
" the collection of funds and phrases", item 12 on the phrase "country"
in the word civil servant and item 14 on the phrase "work" and the phrase "in the working relationship included The accident occurs in the journey of the home towards a workplace or otherwise", Article 13 of the paragraph (1) of the phrase " incrementally" and the phrase " in accordance with the warranty program
social which it queried", Section 17 of the paragraph (1) of the phrase " mandatory participants
pays dues", paragraph (2) on the phrase " is required to collect. iuran and the phrase
adds iuran" paragraph (3) to the phrase " iuran ", Article 20 of the paragraph (1) on the phrase " which has paid the dues or its dues government paid "
and the paragraph (3), Section 21 paragraph (1) to the phrase "at the most recent six months since" , paragraph (2) on the phrase "after six months" and the phrase ", Section 27 of the paragraph (1) in " iuran ", paragraph (2) on the phrase " iuran", paragraph (3) on the phrase "iuran" and paragraph (5) in the phrase "iuran", Article 28 paragraph (1) in
the phrase " and want to include other mandatory members of the family
pay additional dues ", Section 29 paragraph (1) on the phrase " work", verse
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(2) on the phrase "worker and phrase work and phrase or suffer
illness attributable to work", Section 30 of the phrase " work is an
has paid dues ", Section 31 of the paragraph (1) of the phrase " work ", paragraph (2) on the phrase "work and the phrase "workers", Section 32 of the paragraph (1) on the phrase "work", verse (3) on the phrase " work ", Article 34 verse (1) on the " iuran phrase and "work", paragraph (2) in the phrase "iuran and the " work", and paragraph (3) on the phrase " iuran", Article 35 paragraph (1) of the phrase " or savings mandatory ", paragraph (2) on the phrase " retirement or dies ", Section 36 on the phrase " participants who have pay dues ", section 37 verses (1) in the phrase "at once retired, died world", paragraph (2) on the phrase "all accumulated dues that have been provided for its development results", paragraph (3), Section 38 of the paragraph (1), paragraph (2) in the phrase
"iuran" explanation Bill 40/2004 on the phrase "informal sector can be voluntary participants" against UUD 1945, then
The applicant argues that the court is authorized to prosecute
a request for a quo;
B. Legal Position (Legal Standing) The applicant That under the Act of MK passed on August 13, 2003
that has been changed to the Act No. 8 of the Year 2011 on
The Changes to Act Number 24 In 2003 on the Court
Kosntitusi, which was passed on 20 July 2011, Article 51 of the paragraph (1)
states that the applicant is a party that considers the right and or
its constitutional authority is harmed by force. An Act is:
a. Individual citizens of Indonesia (explanation: including group
of interest);
b. the unity of the indigenous law society as long as it is
with the development of the community and the principle of the Republic of the Republic of the Republic
Indonesia that is set in Undang-Undang;
c. the public or private legal entity;
d. State agencies.
That the Constitutional Court in consideration of the Ruling Ruling
011 /PUU-III/2005 and other rulings have determined 5 (five)
the competition regarding constitutional losses arising out of the expires
The Act referred to Article 51 paragraph (1) of the MK Act:
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a. the absence of the constitutional right provided by the Basic Law
Republic of Indonesia;
b. that the applicant ' s constitutional right is considered by the applicant to have
aggrieved an Act, which is contemplating testing;
c. that the constitutional loss of the intended applicant is (specifically)
specific and actual or At least one of the candidates is potential that
reasonable reasoning can be certain to occur;
d. Due (causal verband) between the loss and
the enactment of the test-moveed Act;
e. It is possible that with the request of the application,
The constitutional loss postured will not or no longer occur.
That based on the evidence attached, the petitioners may be able to
be qualified. As an individual who is a person of an Indonesian citizen, or
includes a group of people who have the same interests as
referred to in the provisions of article 51 of the paragraph (1) MK Act, meaning it has the right
to file a test materiel over Law Number 40 Year 2004
on Social Security System National (Law 40/2004).
That applicants assume a related constitutional right
with increased general welfare and social security, guarantees
health and other rights related to the improvement of life ' s cultivation
prosper as a dignified human as it has
specified in the Constitution of the Republic of Indonesia 1945 alenia 4th
stated:
" Then rather than that to form ... and to advance
General welfare ... as well as with all the full social justice
The people of Indonesia ".
That the Constitution of the Republic of Indonesia 1945 is clear
and expressly set the constitutional rights of citizens associated with
social security, health, welfare and others. as set forth in
the following sections:
Article 34 paragraph (1): "Poor Poor and displaced children are maintained by the state";
Article 28H paragraph (3):" Everyone is entitled to a social guarantee that enables its development to be intact as a human being
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dignified ".
Article 28A:" Everyone has the right to live as well as the right to maintain life and life ".
Article 28B paragraph (1): " Everyone has the right to form a family and continuing descent through a syah marriage "
Article 28B paragraph (2):" Everyone is entitled to the survival, growing and evolving ".
Article 28I paragraph (1): "The right to life ... is a birthright that cannot be reduced under any circumstancesArticle 28C paragraph (1):" Everyone is entitled to develop through the fulfillment of its basic needs in order to improve the quality of its life and
for the welfare of the human race ".
Article 27 paragraph (2): " Each citizen is entitled to a job and a livelihood that is worthy of humanity ";
Article 28D paragraph (2): "Everyone has the right to work as well as get rewards and fair and decent treatment in working relationships";
Article 25 paragraph (1): "Every free person .... has a job";
Article 28H paragraph (1):" Everyone has the right to communiqued and to produce the information to develop personal and environmental
social and entitled to searching, propping, reloading, wrench,
save, process and relay information using
any kind of channel available ".
That Pomohon considers to have constitutional rights related
with social security that has been set up with the Basic Law
Republic of 1945 which includes the right to life and sustain life,
the right to family, improving well-being and quality of life
as a dignified human being, the right to work, choosing a job
and earning a decent wage, the right to be granted bail
welfare, the right to acquire the health care guarantee and
a decent and good public service facility, the right to produce
social assurances, the right to communicate and obtain information as well
forth;
That for poor facirs and displaced children (people are not
able (Applicant Number 11), have the right to maintained by
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states and is empowered in accordance with the dignity of humanity;
That the applicant considers the constitutional rights above
aggrieved by the enactment of Law 40/2004;
That the applicant is poor and the people which cannot be very
aggrieved by the enactment of Article 14 paragraph (1), the explanation of Article 14 of the paragraph (1)
on the phrase "gradually" and Article 17 of the paragraph (5) Act 40/2004, which
stipulats that the registration of the facir is poor and people ca n' t afford
as a recipient of help and iuran the recipient of help performed
incrementally, for the first stage will be registered on the warranty program
health only, whereas for other types of social security programs
there is no legal certainty when it will be obtained (in particular for
accident guarantee program, pension guarantee, old day assurance and
death guarantee);
That there is clearly a causal link between the rights loss
the applicant ' s constitutional (poor and people cannot afford) with
the enactment of Law 40/2004 which logically could be estimated rights loss
The applicant ' s constitutional, and will not occur if the request
The applicant is granted cause with the granted of the para
The applicant is automatically a poor facir and people cannot be able to
obtain the whole the type of social security that exists in Law 40/2004 without
must go through a process of staging that is not clear its legal certainty,
whereas Article 28D paragraph (1) of the 1945 Constitution sets out: " Everyone is entitled to the recognition, warranty, protection and legal certainty that is fair
as well as Equal treatment before the law ".
Article 34 paragraph (1): " Poor and abandoned children are maintained by the state ";
Article 34 paragraph (2): " The country develops a social security system for all Indonesian people and empower the weak and
cannot be compatible with the dignity of humanity ";
Article 28H paragraph (3): "Everyone is entitled to a social guarantee that allows for its own development as whole as a human being
dignified "; That should be poor facir and people are not capable of being nurtured by
states including the right to obtain parental assurance day and guarantee
accidents, cause if the a quo section is not cancelled then the applicant Number 11
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will not obtain an old day guarantee and crash guarantee as
the embodiment of the maintenance guarantee against poor facir and the people
that is not capable of being mandated by the constitution;
That if the applicant requests his right to bail on an accident and day
old, the administration/BPJS can reason will be met gradually, sehigga
the rights of the poor and the people cannot afford not be fulfilled for
obtain a complete and thorough social security; That the applicant assumes with canceled a clause a quo then rights
poor facir and people could not immediately fulfill its rights
without having to wait for the detention, because the 1945 Constitution was already firmly
setting that poor facir and displaced children are maintained by the state,
everyone is entitled to a social guarantee with the developing country
the social security system for the whole Indonesian people and empowering
society is weak and unable to fit the with dignity
humanity;
That the petitioners (other than the poor facir and people are not
able/applicant Number Urut 1 to Urut Number 10) assume that
the enactment of the Act 40/2004 post:
Section 14 on the phrase "gradually and explanation";
Article 17 verse (5), Description of Law 40/2004 on "sector informally may be a voluntary participant";
Section 1 item 3 on the phrase "the collection of funds and phrases", the item
12 on the "country" on the civil servant word and items 14 on the phrase " work" and the phrase "in the working relationship including the accident
occurs in the journey from home to work or otherwise";
Article 13 paragraph (1) of the phrase "gradually" and the phrase " in accordance with a repaid social security program ";
Article 17 of the paragraph (1) of the phrase " participants are required to pay dues ", paragraph (2) in the phrase " shall collect the dues and the phrase "adds iuran" verse
(3) in " iuran ";
Section 20 paragraph (1) on the phrase " which has paid dues or its dues
is paid government " and paragraph (3);
• Article 21 paragraph (1) of the phrase "at the most recent six months since", verse (2)
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on the phrase " after six months " and the phrase"";
Article 27 paragraph (1) in " iuran", paragraph (2) in the phrase " iuran ", paragraph (3) in the phrase "iuran" and paragraph (5) of the "iuran";
Article 28 of the paragraph (1) of the phrase "and wants to include other members of the family must pay additional iuran";
Section 29 paragraph (1) of the phrase "work", paragraph (2) in the phrase "work" and the phrase "workers" and the phrase "or suffer work illness";
Section 30 on the phrase "work is an which has paid the dues";
Section 31 of the paragraph (1) on the phrase "work", paragraph (2) in the phrase "work" and the phrase " workers", section 32 paragraph (1) on the phrase "work", paragraph (3) on the phrase "work";
Section 34 of the paragraph (1) on the phrase " iuran " and the phrase "work", paragraph (2) of the "iuran" phrase and the "workphrase", and paragraph (3) in the "iuran" phrase;
Section 35 of the paragraph (1) on the phrase "" or savings mandatory", paragraph (2) on the phrase "retirement or die of the world";
Article 36 on the phrase "participants pay dues";
Article 37 paragraph (1) on the phrase " at once, retired, died world", paragraph (2) on the phrase " all accumulated dues that have been provided plus its development results", paragraph (3);
Section 38 of the paragraph (1), verse (2) in the "iuran".
The a quo Act, may prejudice the constitutional right of the applicant
to obtain a social guarantee which is a loss will not obtain
a social guarantee that consists of a health guarantee, a pension guarantee, a guarantee
accident work, an old day guarantee and a guarantee of death, because to
obtain a social security person must register/be registered and
must pay or be paid for it, as well as by the enactment of the section-
section a quo of The applicant will also not be propping up the social guarantees
others that are already mandated by the constitution such as bail for life
worth, guarantee of residence, the guarantee of obtaining a common facility that
is decent and good and So,
That the applicant assumes the result of the a section quo can
result in a constitutional loss and if a quo
is rescinded and the applicant's request is granted, the applicant
believes (logically) will obtain a social guarantee. Suit
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the constitution's mandate;
That the applicant is very interested in being able to do so
the provisions of the constitution are related to social security for the
the applicant and the entire citizen of the Republic. Indonesia gained a guarantee
social according to the constitution's mandate;
That Act 40/2004 has yet to guarantee the constitutional rights of citizens and
not yet in accordance with the constitution of the Constitution of 19945, as it has not been
guarantees the right of every person associated with social security and
social welfare which are mandated in the Opening of the 1945 Constitution paragraph
4th, as well as Article 28H paragraph (3), Section 34 of the paragraph (1), paragraph (2) and paragraph (3), Article
28I paragraph (4), Section 28D paragraph (1), Article 28I paragraph (2), Article 27 of the paragraph (2), Article
28A, Section 28B of the paragraph (1) and paragraph (2), Section 28C paragraph (1), Section 28F, Section 28H
paragraph (1), and paragraph (2) that has been raised above;
That the a quo of its title has also not reflected
suitability with the understanding of social security in the a quo
stating:
Article 1 of item 1: social security is wrong one form of social protection
to guarantee the entire people to be able to meet the basic needs
his life is worth;
His explanation: The basic needs are everyone ' s essential needs
in order to be able to live for the sake of the the form of social welfare for all
people of Indonesia.
According to Law No. 13 of 2011 on Fakir Miskin Article 1
item 3 " basic needs are food needs, stables, housing,
health, education, employment and/or other social services;
Understanding social welfare, according to Act Number 11 of the Year
2009 on Social Welfare in Article 1 of item 1 " social welfare
is the condition of which the material, spiritual and social needs of the citizens
Country for can live well and be able to develop yourself so that
can carry out its social functions;
That of the understanding of social security in this Act 40/2004 is contained
2 must:
1. Guarantee the entire Indonesian people to;
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2. The underlying needs of the basic life are viable and well-being of the welfare
the social with which it needs to be used, food, board,
health, education, work and income as well as social services
the other is good. is a meterial, spiritual and social need, and
can develop oneself to live a viable human being
dignified;
That Law 40/2004 cannot guarantee the rights of all citizens to
get social security, or very potential can eliminate the rights-
rights The constitutionality of the citizens to obtain social security so that
may result in not being subject to the basic needs of a viable life,
as it is to be filled, food, board, education, health,
work, and Other social services;
That a worker will not obtain social security, if the giver
work does not register to the social security organizer, or
already registered but the employers are not repaid the channel to
BPJS, then the worker will also not get social security;
That the fourth child up to a civil servant and the recipient of a wage
also potentially does not obtain social security, while her parents are not
registering and paying the social security dues to BPJS, because in
Law 40/2004 is only specified that the parent may include the child
fourth and so on, to be registered and paid for it [See
Section 20 of the paragraph (3) is not required];
That the honorary teacher, teacher not fixed, and non-permanent employees who work in
state organizer institutions, as well as the village government apparatus would not
obtain social security, or at least be entitled to rights,
because they are not statuses as civil servants. Which will be registered
and paid for it by the government;
Because Section 1 of item 12 of the Act 40/2004, stipulating that the employers are
individuals, employers, hUkum bodies or other bodies, which
employ a workforce, or state organizer who
Emploes civil servants by paying salaries, wages, or rewards
in other forms;
GTT, PTT, honorary teacher, contract power and village government apparatus
not including civil servants, despite the lifting or the
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giving SK a duty is the state organizer institution and acquires
the salary of the average nominally still small APBD/APBN, they
will not obtain social security because the government is only registering
and paying dues for workers who are already status as employees
country;
That the social insurance system, its understanding according to Law 40/2004 is
in the sense of mandatory dues or mandatory savings such as which are listed in
Article 1 item to 3, " social insurance is a mechanism collection
enconforming funds from dues that provide protection at risk
the social economic affliction of the participants and or family members ";
Is very unaligned (contrary) with constitution, because although
the constitution does not affirm what warranty system is to be/elected, but
section section in the 1945 Constitution already expressly mandates the type
which social security should be obtained by every citizen and
must be thorough as well as its benefits by all citizens
states;
That with a tax-based payment system, it will be more effective and
more efficient and able to yelter, where all the good people are hit
taxes (rich) and those who do not tax (miskin/inable)
automatically entitled to social security, no longer necessary to be classified rich or
poor whose criteria will be very difficult to do with certainty and can
denigrate the degree and dignity of man;
That tax-based raharja service insurance system can be taken as
example, by attracting a percent of the amount of tax to the taxpayer,
then automatically the entire Indonesian citizen being a member and
the dependents of the PT. Raharja ' s services, in the event of a traffic accident, then
any person who paid taxes or did not pay taxes or not
has the vehicle will obtain santunan according to the type and criteria that
has been set;
That has been proven and undeniable, the social security system that
based on the tax withdrawal will be more effective and efficient and automatically can
classify which ones include weak and inable ones
that needs to be nurtured and empowered, and at once can be affordable and
reach all the people;
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That there is no need for excessive and irrational concern,
if the tax funds are used for social security then the state will go bankrupt,
because social funds are taken from taxes, provided that by principle can be customized
with standard amount of funding requirement, project efficiency and pressing
corruption, revocation (reduction) of BBM subsidy, untimely electricity
objectives and so on and from other sources, according to
Country skills. Welfare here do not be equated with
welfare in other countries that tend to live in luxury-
luxuers, but remain in the principle of healthy simplicity and
quality;
That post a quo at the core set out that the national social security
guarantee system consists of health assurance, job accident guarantee,
old day guarantee, pension guarantee and death guarantee;
That the warranties are the Applicants Consider it not fully
realized and implemented as well as fulfilling the warranty. social every citizen
the country of Indonesia broadly and thoroughly in accordance with the warranty rights
the social citizens governed in the constitution as it has
The applicant is on the basis of the law;
That system The social security of the a quo
is only tex over or consep over of an existing social insurance system,
both in Indonesia and in various countries that carry out the insurance
social, where only participants are signed up or registered and paid
or paid only the right to benefit from certain types of guarantees
the specified social, whereas citizens who do not participate, do not
pay or are not paid are not entitled to social security, facir
poor and People can't afford to just get a guarantee
health only, because the government only lists the poor and people-
people who can't afford the health insurance program only, though
are poor and unable to afford it. undatable and not registered or not
have a health guarantee card (For example, Askeskin, Jamkesmas, Jamkesda,
Jampersal and the like) they will not get a health guarantee,
whereas health care and assurance is a fundamental right to each
citizens who have been guaranteed by constitution;
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That the social security system set up in the a quo Act is not
can be enjoyed and followed by each person, for example retirement only for
employees/workers who receive wages only, whereas others unmisdone.
Employees who received the wages of many who did not obtain social security
suppose the members of the DPRD, the honorary and employees of the civil rights, the device
the village started the head of the village, the head of the hamlet and the apparatus that was true to him.
is a government employee and acquired a salary from APBN/APBD, there
whose salary is still under UMR/UMK, but they do not acquire
social assurances at all for health insurance and pension only
they do not get, teachers and private lecturers, ustadz, kiyai, pastur,
Reverend, pedande and so on with a small salary never even
receive a salary, although it is a great contribution to educating and lecturing
the life of the nation in order to prepare a younger generation of potential successors
struggles the intelligent and virtuous people of the virtuous and
put their trust, independent and responsible. answer, they also do not get a guarantee
social for not paying or paid;
That the social security system adheres to the social insurance system or
mandatory savings, will be difficult to be terealized to be able to reach out and affordable
by the entire Indonesian people, because there will be no registration mechanism,
the withdrawal and collection of dues that are aplikative and can be implemented
with ease and complete. The iuran system will only benefit
the insurance maintainers only, but are difficult to enjoy by the entire layer
society;
That it should be because social security is a fundamental right to
every citizen country, then all Indonesian citizens automatically
must be registered as a participant and recipient as well as be able to obtain a guarantee
social without having to register itself, but the Government is which are obliged
to data and register as well as to bear social security For all people
Indonesia;
That many groups of Indonesian citizens are giving a constrition
large to the income of the country's visa and expect to be a good name
country with a variety of national achievements such as Athletes and sportsmen
high-tax, tax-paying artists
high enough, the TKI and TKW as the source of sufficient state devisa
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significant, they also do not obtain any definite social security if
does not pay any more, although it is subject to high taxes;
That workers are working as contract labor, labor
buildings, shopmaids, merchants, five-foot merchants, farmers, fishermen, labourers
farmers, scavs, plantation workers, housemaids and so on
who were the soko teachers of the people's economy that was independent and never
overload of state finances and suppliers of the principal needs of the people, they
not get social security, although it is already paying the appropriate tax
with its services;
That Act 40/2004 is already 7 (seven) years old, but up to this time yet
is implemented at all, even the derivative regulations and body of the alignment
national social security has not been able to work the maximum, so it expires
and is being staggered as well as violating the provisions set out in the Invite-
Invite it.
Article 53: " This Act goes into effect since the date was promulred"
(promulcdated 19 October 2004);
Article 52 verse (2): " All the provisions set about the Agency
Social Security organizers as referred to in paragraph (1)
(jamsostek, taspen, asabri and ASKES) adjusted to Invite-
Invite this most slow 5 (five) years since this Act
promularily ";
That up to this second Act 40/2004 has not been implemented in whole and
thoroughly, even the amanat to form the governing body of the guarantee
social At least 5 (5) years since the invitation is still new
passed and cannot be operationalized, whereas the Constitutional Court
has already canceled Article 5 of the paragraph (2), paragraph (3), and paragraph (4) Invite Act 40/2004
this is related to Jamsostek, Taspen, Asabri and Askes on 18
August 2005;
That the provisions of the 40/2004 Act, the Applicants assume
contradictory to the 1945 Constitution for not being able to guarantee any citizens
the state to obtain social security as well as still sectoral and not
thoroughly, Because the right to social security is just a citizen
the country that signed up or on the list and who are paying or paid,
who is entitled to a pension only workers earn wages and
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accident guarantee only in the working accident sector only
is granted bail, whereas inrelated traffic accidents
with jobs or for non-working in the formal sector are not
obtaining social security from the workplace accident guarantee program
This 40/2004, (gets from raharja service insurance), as well as an accident
due to natural disaster, informal work accident (such as pemanjat
coconuts fall, fishermen drown, electrocuted and so on) no
obtaining a Social Security guarantee guaranteed by Undang-Undang;
That the articles also do not warrant any legal certainty for
any person to obtain social security. The registration requirements and or
are registered as well as paying or paid obligations, will not be able
reach out to all Indonesian citizens and will not guarantee the right
someone to obtain a social guarantee, let alone if the nature willing
in accordance with the social security program that will be followed as the system
professional insurance that has been developed in the community;
That it should be the Government that automatically must be registering
and paying the dues/dependents of the citizens for social security no
is charged to the already helpful and opening
field of work for the community, as the country is primarily the government of which
is obligated to guarantee and meet social security for the whole of the people
Indonesia;
That to guarantee legal certainty for any citizen to
obtain a guarantee of social security, then membership of the participant
social security does not have to be registered to the body. organisers
social security, but each citizen is automatically entitled to
participants and obtaining social security, citizens also not
required/required to pay dues to the social security organizer,
but the Government is the one who must bear the cost of social security to
the entire people Indonesia through APBN/APBD, no source of funds can
be obtained from tax payments for taxpayer and from resource results
nature obtained by state or state visa sources and
forth, cause Article 33 verse (2) UUD 1945 establishes that " The earth of water and wealth is contained It's controlled by the state and
to be used for the great prosperity of the people ";
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That the 1945 Constitution does not regulate whether social security should
use the social insurance system (mandatory savings or iuran) or through
tax payments for which the provisions meet the tax, but the obvious
Social security must be obtained by any citizen and social security system must be thorough and can reach and guarantee and fulfill every right person to acquire the warranty social. System registration and insurance or dues are clearly not able to reach out and enjoyed by All citizens. This is evidence that
reinforces the suggestion that the social insurance system cannot reach out and
cannot be enjoyed by all Indonesian citizens, as well as being able to
harm or harm the constitutional rights of the country. The applicant
among others as follows:
1. Poor facirs and people cannot afford only a guarantee
health alone does not acquire another social guarantee;
2. Poor and non-registered, non-registered or non-registered, non-registered, non-registered cards do not have an askes card and their ilk
is entitled to a health service according to its rights;
3. Poor facir who entered the hospital and late showed an identity
poor (entered without carrying a poor identity) although it could
show or get a gakin card and so on, fixed
charged, cause the new poor identity is shown after the process
medical is run;
4. Poor card carrier gets a different service, or at least
gets minimal service only;
5. Poor card reduces a person ' s harkat and dignity, or at least si
the poor card carrier feels minder as well as low self;
6. Toddlers, learnates and students are automatically unregistered and yet
get health guarantees, accidents and so on;
7. Teachers and private lecturers, kiyai, ustadz, pastur, priest, pedande and
so on have not yet gained social security;
8. Many professions do not obtain social security such as:
village devices, contract laborers, farmworkers, coolies, farmers, fishermen,
housemaids, Indonesian labour or women's workforce
(TKI/TKW), Five-foot merchant, shop steward, artist, athlete/sportscaster,
18
artists, budayers, craftsmen and entrepreneurs and so on are not listed
and do not get social security;
9. It is possible that the funds have not been funded by the PT. JAMSOSTEK because
the majority of the workers do not understand their rights and the registration system and
it is only using the target system of how registered and which
should be paid;
10. Beggars and vagrants still roam a lot, suggesting that
seriousness to empower poor facirs and abandoned children is not
optimal;
11. Building coolies, coconut climbing, fishermen and so on whose accident
work will be paid off without getting a guarantee of a work accident;
12. Victims of natural disasters and other calamations did not
obtain santunan according to Law 40/2004;
13. Poor facirs of people cannot afford to get a live guarantee
which is viable (get the help of the BLT, raskin and so on its nature
political and periodical);
14. Human age, nursing and unable to work again did not get
a proper and adequate social guarantee;
15. Social security by using an insurance system in the notions of the iuran
likes to be willing only to be good at concept but difficult to
realized, proved that Law 40/2004 is 7 (seven) more but
it has not been able to to be fully executed;
That under the control and the reasons, the petitioners
implored the Constitutional Court to please state that
The applicant is eligible legal (legal standing),
so that the applicant has the right to apply the upper materiel test rights
Act 40/2004 against UUD 1945;
C. Subject Matter/Perkara That Is Honoed 1. Preliminary
That 66 years already Indonesia is self-proclaimed
independent and sovereign, but in reality we must recognize that
not all of the ideals and purposes of the great establishment of the Republic of the Republic
Indonesia can be realized and fully realized in
the field of increased education and welfare or the life of the people.
19
Indonesia, still a lot of poor people living under live taraf
who deserve a dignified human being;
That the opening of the Constitution of 1945 is firmly and clearly directed and
mandates the purpose and the lofty ideals to be implemented with
and in line with the shape of the country and the Indonesian government
(not just the ideals and goals in the petic sign as wishful thinking
or mere discourse) but must interpreted as amanat that must
be immediately realized by the government by forming regulations and
laws and real actions without having to delay
to implement and regulate it;
There are at least 7 (seven) principal tonsils that should be exercised by
the country primarily by the government which is mandated in Opening
UUD 1945 alenia 4th is:
1. Protect the entire nation (people) Indonesia;
2. Protect the entire Indonesian blood (region);
3. Ensure common welfare;
4. Save the nation's life;
5. Join the exercise of world order on the basis of justice, peace
eternal and social justice;
6. Forming a state of the people's sovereign republic of Indonesia and
democratic based on Pancasila and Basic Invite 1945;
7. Realize social justice for the entire Indonesian people.
That in order to advance the general welfare and
embody the soaial justice for the entire Indonesian people who are
the goals and ideals of the great The form of a welfare state (Welfare
State) Constitution of 1945 and its amandemes have mandated that any
people are entitled to a social security that allows development
as a dignified human being (Article 28H verse (3),
" Poor Fakir "and the children are kept by the country". Country
developed a social security system for the entire people and
empowers a weak and incapable society in accordance with
the dignity of humanity (Article 34 of the paragraph (1) and paragraph (2);
That to realize society in a justice order and
living in prosperity, prosper born and inner fit to harkat
20
and the dignity of humanity and for the realization of a sovereign nation
and dignified, then the three pillars must be noticed, enhanced
and immediately realized that includes well-being and alignment,
education and skill as well as fairness and sovereignty;
That in order to advance such general welfare then
the social security that is already mandated in the already 1945 Constitution
firmly states that every person is entitled to a social guarantee,
then it should not be not to be every citizen of Indonesia must
obtain the appropriate and adequate social security that is
the basic rights of the citizens of the Republic of Indonesia, the state especially
the government must be in charge of enforcement and
social security for the entire Indonesian people as set forth in
section 28I paragraph (4) of the 1945 Constitution;
That actually the government of the Republic of Indonesia has passed
Law 40/2004 which includes assurances health, work accident guarantee,
pension guarantee, old day assurance and bail death, which is shaped
social insurance guarantee, where that could benefit from
the social insurance guarantee is those who registered
as members or registered other parties and those who pay
dues or paid by other parties according to the nominal that
is determined in a certain period of time
at least 15 years of work and pay for the routine a new person can
receiving pension funds;
That for poor facirs and displaced children only gets bail
health only for those who already get bail cards
poor public health, poor family card or the like, for
who didn't get that card don't expect to get the service
Health guarantee;
That for the other type of social security for poor facir, Law 40/2004
has not been mandated to the Government to comply;
That it should be a country especially the Government must be responsible
for welfare and social security for poor facir and
child displaced in order for them to be soon to develop and be independent
as a dignified human;
21
That for citizens whose true citizens are still poor facir but
not getting a poor sign/card or feeling rich because it does not want
impoverished themselves, not willing to be considered poor as it concerns the price self
and can denigrate the degree and dignity of humanity, then they
definitely won't get health care, and for
those who feel poor or admit poor then sick and
drug home And then megurus the poor card, then even if they
get the poor card fixed will not be served because of entering the house
it hurts before it is listed as a poor family;
That Law 40/2004 only guarantees Indonesian citizens who
pay dues or be paid dues by other parties, then
automatically parties that cannot pay or are not paid
the file will not benefit from the Social Security System;
That there is still a lot of events that befall students and students or
anyone who suffers from bad pain or accident in the area where
they demand science, handling The medical must be too late and
constrained by the administration rules and the affairs of who should
bear the cost, when the right to health care and
the right to life is a human right that doesn't could
be revoked or ignored on any basis;
That many of the parties while still successful, tenar and jaya were charged
sizeable income tax between 20% to 25% of
its earnings, mispronounce the artists and professional athletes and sportsmen,
parties moving in the services field and other which income
large if due to fall or dimmer then they also do
will get social security rights;
That around us are still a lot of beggars, vagrants, children-
orphans, The nursing people in front of our eyes can be
witnessed as a mediocre landscape and rarely in between
we are touched and tapped to help and refine it
or just empathize to the they;
That their lives are still very unworthy and undignified
as humanity (both sandang, food and board as well as
His health is very poor);
22
That countries especially the Government should be responsible for
their fate, in fact the Government is already prostituting good help
which is the help of RASKIN (rice for the poor) or BLT (helpn
directly cash) Rp 100,000 per person poor, but such assistance
is only periodic (at times not) and political nuance
(ahead of the election usually BLT is prostituted) as well as still a policy
which is not yet exact legal basis;
That it is still a frequent eviction without a solution that right and right
against buildings and occupancy considered wild and unworthy, whereas
every citizen is entitled to a public place and a public facility that
deserves humanity;
That the fate of the honorary officer and the Employees do not remain and village aparatur,
start the head village of the hamlet, and all the apparatus other than the secretary
village, the majority is still paid Rp. 500,000 to one million rupiah
only, they work hard in the environment the central and regional governments
which is the spearhead of the Government apparatus, though With a low salary
, they don't get social security at all,
especially for health insurance and old day guarantees, because the Government
does not register and pay a social security dues on behalf of
they, while they are paid from state money (APBN and APBD)
although the number is not how, and a portion of the village apparatus exists
that can work on the village property to take its benefits (the ground
crooked) for The villages that still have villages belong to the village;
That the social security system will be much bring victims to
majority of Indonesian people whose majority works in the informal sector,
farmers, fishermen, farmworkers, labourers in informal sector, TKI, TKW, wiraswasta
small, budayawan, well-earned artists and other
so that cannot be able to pay dues or impossible
paid for it by other parties, then automatically they do not
will benefit from such social security system, whereas
their services are great for subsidised the needs of the people ' s principal
Indonesia and Sustaining Indonesia's economic system, suppose
a farmer grew rice, the harvest sold at Rp ± 2,500,-per
kilogram, when the world market price ± Rp 5,000,-if crop failure
23
self-borne loss, TKI, TKW is the source of state devisa,
fishermen as suppliers of proteins and so;
That private teachers and lecturers, ustadz, kyai, pastours, priests, pedande and
professionals educators and other educators that play active and meritorious
great to improve people ' s intelligence (educating the people appropriate
with the capacity and roles as well as each) the majority
high dedication and devoting entire power and mind to
the world of education and not the menomor united salary, although small wages and
are not adequate for daily needs, they remain devoted to their service,
but their devotion will not be guaranteed to get a guarantee
social, because their majority does not allow it to be able to pay dues
such social security insurance, especially for those who teach in
basic education and other educational places without
levy a decent fee, whereas the Constitution of 1945 has guaranteed rights
they are to get social security, so also with the Invite-
Invite Sisdiknas has also established that educators and power
education is entitled to appropriate and adequate social security
(especially health assurance and old days), Law Number 20
Year 2003 on System National Education, Article 40 paragraph (1) and
explanation;
That it is a great sin if the Government does not meet the guarantee
social for the entire workforce of educators and educationist
is active to realize education in Indonesia;
That Act 40/2004, mandates it to the employers for
cuts workers ' salaries to be paid or shadowing the employee dues
to the social security organizer, to guarantee that any
workers can obtain and benefit from the social security system
nationwide;
That only large companies and companies can afford and can
make a big salary or at least be eligible to be able and
allowing for cutting and paying social security dues
for its workers, whereas a small company with a salary below
or the same as UMR would be difficult Execute it;
That with the image the Petitioners are confident
24
very little Indonesian people will benefit from
the social security system set up in Act 40/2004;
That with the reason and the background are welcome to the applicant
submit a material test rights for the 40/2004 Act against the UUD
1945;
That in front of the applicant wishing all Indonesian citizens
can get a social guarantee from the government without having to be bothered
to register and pay dues as well as a belitous administration;
That the source of the social security fund may be raised from mandatory donations
taxes for which already meet the requirement to pay taxes (not
must be difficult to raise dues) and state revenue that
other;
That in front of the government must be responsible for social security
through the social ministry, or the new designated organizer ' s body.
That for the initial stage of community funds are entrentable to insurance
The social bends of the Government can be used entirely for the initial capital
social security;
2. Basic Law That one of the main goals formed and the establishment of the state of Indonesia
is to divorce the life of the nation and advance
General welfare and realize social justice for the entire people
Indonesia (as a welfare state/welfare state/welvaatstate)
as listed in the Opening of the 1945 Constitution Alenia ke- 4
as follows: " Then rather than that to form a
Indonesia state government that protects the entire Indonesian nation
and all Indonesian blood spills and for advancing welfare
general, lecturing the life of the nation, and taking part in order
world based on independence, eternal peace and justice
social, then the Indonesian Independence Act is in
an Indonesian Basic Law which was formed in
the framework of the state of the Republic of Indonesia that sovereignty of the people with
based on the Maha Esa, fair Humanity
and civilized, Indonesian unity and spiritualization led by
wisdom of wisdom in deliberation as well as representative ";
25
That in order to ensure every citizen can live in prosperity
born and bathin then the 1945 Constitution mandates that everyone
is entitled to social and state guarantees developing a warranty system
social for the entire people and empowers a weak society and
cannot be compatible with the dignity of humanity, as
is listed in the following sections:
Article 28H paragraph (3): "Everyone is entitled to a social security that allows for its own development as whole as human
the dignity"
Article 34 of the paragraph (2): "The State is developing a social security system for the whole people and empowers a weak and not
able to match the dignity of humanity". That to guarantee the stay of social security for the All citizens
state, UUD 1945 requires the state to respect (to
respect) protect (to protect) and guarantee fulfillment (to) any
human rights including the right to obtaining social security for
the entire Indonesian people as listed in the 1945 Constitution:
Article 28I paragraph (4): "Protection, submission, enforcement and fulfillment of human rights is the responsibility of the state,
especially the government". That social security should be able to acquired and enjoyed by all
citizens of the Republic of Indonesia fairly and evenly, proportionately
and without discrimination, as set forth in the 1945 Constitution of the section
as follows:
Article 28D paragraph (1): "Everyone is entitled to the recognition, protection guarantee and fair legal certainty as well as the treatment that
equal before the law".
Article 28I paragraph (2): "Everyone is entitled free of The treatment that is discriminatory on any basis and is entitled to get
protection against the discriminatory treatment ". That the provisions associated with social security according to the Constitution
1945 between others are in the following sections:
Article 27 paragraph (2): "Everyone is entitled to a job and a livelihood that is worthy of humanity".
26
Article 28A: "Everyone has the right to live as well as the right to preserve life and life".
Article 28B paragraph (1): " Everyone has the right to form a family and proceed offspring through legitimate marriage ".
Article 28B paragraph (2): " Everyone is entitled to survival, grows and develops as well as entitled to the protection of the violence
and discrimination ".
Article 28C paragraph (1): " Everyone has the right to develop themselves through the fulfillment of its basic needs, entitled to education and
benefits from science and technology, art and
culture, in favor of improving quality her life for welfare humanity
human".
Article 28E paragraph (1): " Everyone is free to convert to religion and worship according to their religion, choosing education and teaching,
choosing a job, choosing citizenship, choosing a place to live in
the territory of the country and leaving it and entitled ".
Article 28F: " Everyone has the right to communicate and obtain information to develop its personal and social environment,
as well as the right to seek to acquire, have, save,
process and relay information with using everything
type of channel available ".
Article 28H paragraph (1): " Everyone deserves a bathin birth, residence and get a good living environment and
healthy as well as entitled to health care ".
Article 28H paragraph (2): " Everyone is entitled to the ease and special treatment to obtain the opportunity and benefit
reaching for equality and justice ".
Article 28I paragraph (1): " Right to life, right not to be tortured, rights to freedom of mind and conscience, religious rights, rights to not
enslaved, the right to be recognized as personal before the law, and
the right to not be prosecuted on the basis of The receding laws are
The human rights that cannot be reduced under any circumstances".
Article 34 paragraph (1): " Poor Fakir and displaced children are maintained by the State ".
27
Article 34 verse (2): " The State develops a social security system for the whole people and empowers the people that weakers and
not is able to fit with dignity humanitarian ";
Article 34 paragraph (3): "State is responsible for the provision of a viable health care facility and public service facility".
That according to the applicant ' s understanding there are at least 7 things that
related to social security mandated by the constitution (UUD 1945)
in addition to the educational rights of the following: 1. Social security for living is worth a dignified human being,
family and resuming offspring, can consist of:
a. A daily life guarantee for poor, abandoned children,
bums/beggars, orphans, nursing people and workers
who have not produced and others.
b. Accident guarantees both physical and mental accidents and
due to natural disasters, job losses, and others;
c. Guarantee of retirement and an old day guarantee.
A pension guarantee for formal sector workers, civil servants and others.
Old day guarantees for those working in the informal sector, TKI/TKW,
building workers, non-civil servants/guru/lecturers, clerics, ustad,
pastours, village devices and so on.
d. Guarantee of death
e. Warranty for family;
2. Guarantee to try and get a job.
3. The warranty for obtaining wages and fair and decent treatment
in the working relationship as well as obtaining the benefit of the profits
the company;
4. Guarantees can stay a decent stay in all of Indonesia;
5. Guaranteed health care guarantee;
6. The guarantee of a public service facility and a healthy living environment, well,
is decent and adequate, covering:
a. Educational facilities;
b. Transport sararana facilities;
c. Communication facilities facilities;
d. Water and clean water facilities;
28
e. Energy facilities, BBM, electricity and other-lain;
f. Sports and recreational facilities;
g. A good and healthy life-ligation facility;
h. Hospitals and orphanages/weda and others.
7. Guarantees of maintenance and empowerment for poor facir and child-
an abandoned child, a weak and incapable society and others.
That all Indonesian citizens are supposed to obtain a guarantee
the social of the country especially from the Government that its budget
is allocated through APBN/APBD with its primary fund source can
be obtained from the company and tax of all Indonesian citizens who
are already eligible to pay taxes and other funds;
That it is basically a nation that has
a hard work ethic and not ever given up by nature
nor the season, they keep work and work to meets the needs
. without ever chugging the hand to ask for,
in any case of emergency anything you can eat as long as it does
harm health, they consume to live
for the sake of menapak tomorrow;
That as a result of lack of education and expertise is a lot harder
to thrive in improving wellbeing, as former
citizens of the colonized and oppressed who have not yet been able to wake up
A hundred percent and now economically and politically already colonized by
dominance global political and economic power, then it is always clear
from this moment a constitutional mandate to advance the general welfare
must be realized with increased education and live tarf
citizens of Indonesia among other things with enforcement and
fulfillment of social security for the citizens of the Republic of Indonesia
1. That to live is worthy of a dignified human being, then:
a. At least for poor facirs and displaced children, should
obtain food for a decent living, likewise for
labor and non-income workers and
earning income is also entitled to acquire help
food, like a farmer in the transmigrant area during his plant
is not yet harvested, entitled to food/food aid
29
staple, (as long as there are raskin and BLT programs but its nature
is still an incidental and political-clear).
A healthy unemployed who does not want to work or do not want
seeking employment, unfit for help
food cause unemployment is not an indigenous Indonesian culture but
due to mental consumerism in style Luxurious living
and lazy work.
For the layoff victims need to get help while up to
exes again.
b. For citizens working as a civil servant or
employees remain in the formal sector and are already unable to work again
either for health or advanced reasons that are not
productive or unable to work Again, entitled to a guarantee
pension from the Government (every month during their work
is subject to mandatory payment of income tax and others);
For those already elderly who work outside of the PNS and
employees formal, like merchants, farmers, fishermen, private heroes,
the service buretts that included Taxpayer, teacher and lecturer
privately imposed PPN/PPH or small income
who could never afford the tax, if not
is able to work again due to the elderly, especially for those
displaced or non-income, must get
an old day guarantee in order to stay alive viable as a human
that is dignified;
c. For citizens who have died still have
the right to proclaim the guarantee of death, at least to
take care of the burial and place of the tomb (can be buried
unworthy and dignified) as it does not close possible
someday the tomb capings will be expensive, or areal
the tomb becomes far from the place of the settlement and so on;
d. That the guarantee of descent and form
a family is a basic right to be set and
protected as well as guaranteed by the state mainly by the Government
with various rules that can be protect and lift
30
The harkat and the dignity of humanity as a creature of God who
is most noble and becomes a caliphate in the face of the earth;
2. That for any Indonesian citizen who had an accident
and was hit by a disaster (natural disaster) as well as a failure
working or trying, it must obtain a proper social guarantee
and adequate, well experienced accident while working, while on the road
raya or anywhere, equally entitled to get
social security, for which disaster or natural disaster
deserves a social guarantee according to type and level
calamations and disasters that befall citizens as well as
citizens that experienced bankruptcy attempted or failed
harvesting for farmers and so on should get help
adequate social support possible capital help
they are to strive and work again, cause Entrepreneurs are the
sources and suppliers of the APBN fund, farmers as heroes who
subsidied food and nutrition citizens of Indonesia, as well
The other sectors are also very credited with the service and
respective constrictions, then in the event of an accident,
musibah/disaster and failure they must obtain a guarantee
social;
3. That for citizens working in the formal corporate sector and
informal (working to help others) there must be a guarantee to
earn a decent wage/salary (in accordance with the standart needs
prosper living), and must be fair and decent treatment
in the working relationship;
If the company advances rapidly and gains a big advantage,
then the workers must be able to benefit and participate
enjoy progress and The company's profits. During this
majority of workers (employees) only paid in accordance with UMR (Upah
Minimum Regional/county) even as much as it was paid in
under the UMR, if the company gets a big result,
then that becomes Rich (conglomerates) are just a handful
its efforts only, whereas the laborers still forbid it;
That it would not happen if the social security system
31
covers this issue and is enforced in accordance with the constitution's mandate.
That every Indonesian citizen is entitled to a place to live in
all Indonesia;
Basically every human being has an instinct for set
stay to build a household and develop
His descendants, both nomadic and already settled,
Indonesian society has since times been able to be independent
build a place to stay in accordance with the culture, customs, needs and
ability;
4. That the right to residence is a right guaranteed by
the constitution, but in the modern era it is the right to stay in place
many are experiencing obstacles and problems, especially in major cities
because of the flow of the current orbanization, so often outburst and
eviction against unlicensed residence and
barring blue print of the city space;
The eviction is without a justice solution and
humankind, whatever the reason for not taking place because of it
barring constistucy. Wild buildings usually occur because of the
culture of exposure or occur due to collusion with the authorities
which is not responsible, if there is a force to be held
there must be a civilized solution for each citizens are getting
their right to be able to reside in the specified region/areal,
not only digusur but not reward solutions and remedies.
The solution could go through the transmigration program, the flats that
affordable or just a decent, affordable little barrack
by financial and close proximity to workplaces (place of making a living
they);
Orbanization is a social reality that is not possibly preventable in the era
globlazation, in which the economic wheel turnover is still centralised in
large cities, which have a major impact on the provision sector
land and shelter for the victims. Local authorities are not
may expel the victims because they have the right to take place
stay in the entire region of Indonesia.
The government must guarantee every citizen's right to be able to
32
residence and for those who do not have or not
are able to purchase the land, then they must be attempted to
can be a decent residence, with a fair range of policies
and not adverse to other parties or placed in proprietary lands
countries either with rental system, use rights or grants (rights
landholdings). As a welfare state it is worth it
all citizens should get the right to stay
so that no more homeless and displaced citizens
without a proper residence;
5. That every citizen is entitled to health care, even
begins to still be a fetus in the womb until it dies, any
people have the same rights to get to the ministry
health without discrimination and without view social status, age
and its origins, ranging from toddler to old, from the
poor to the rich, village device to state officials, start
from learners, students, teachers and lecturers and so on;
That Act 40/2004 has guaranteed poor facir rights to acquire
services health with various administrative conditions twisted
and difficult as well as inconsistent, suppose it should be able to show the card
Gakin (Poor Family) then changes with the Askeskin card (Insurance
Family Health Poor), then there are more Jamkesmas cards (Guarantee
Poor Public Health), Jamkesda (Regional Health Guarantee)
and so forth;
For poor facirs that do not have the Gakin ' s signs,
Askeskin, Jamkesmas, Jamkesda and so on will not
obtain health services and must remain pay, although
they got the card if it took care of the paska entry
the hospital, still won't get a health service;
For other citizens, it can get a health guarantee
if registering or registered and paying or paid;
That standard health care should be able
given to any citizen any country status with without
must pay attention to the rich or poor and pay or not
pay, but must be given to each person with budget
33
of APBN/APBD is propped up by tax and so on;
6. That Constitution of 1945 has guaranteed the rights of every person (citizen
Indonesia) to obtain a guarantee of a service facility
in general and get a good and healthy life environment;
The State is especially the Government responsible and sought
to include the rights of citizens to acquire a public facility
and a healthy environment, both facilities facilities
education, means of communication and transportation, water facilities and
clean water, energy and mineral resources facilities, electricity and BBM
and Other, sports and recreational facilities, environmental facilities
A good and healthy life with regard to the ecosystem and
guarantees its natural survival, as well as the availability of hospitals,
orphanages, orphanages. werda and so forth;
7. That poor facir, abandoned children and weak society and
cannot be entitled to a guarantee of maintenance and empowerment from
the country especially by the Government, in order for them to exist and be independent
so it can be Expand from poverty and be able to grow
ability and independence for a weak and not
society able;
That maintenance and empowerment should be defined in the discourse
progressives, not just the hold, feed and care
the poor, weak and unable, but must optimized
in the sense of empowerment, training and skill-giving that
is optimal for them to be able to be independent; That the social security program types set up in Law 40/2004
are covering multiple programs which are listed in Section 18 that
states " Types of social security programs include: a. Health guarantee
b. Job accident guarantee
c. Old day guarantee
d. Pension guarantee and
e. The guarantee of death
That in the 40/2004 Act is held on the basis of the principle
social insurance or mandatory savings, the citizens of the country entitled
34
obtaining a social guarantee is any citizen of the Republic of Indonesia
that registers or is registered and paid or paid
dues in accordance with the social security program that is followed, meaning that the
does not register or be registered and does not pay or is not paid
in the social security program, will not be proclaiming the benefits of the system
national social security guarantee as set in Law 40/2004. Hal
The applicant is contrary to the 1945 Constitution which
mandates that every citizen is entitled to a social security and
the country develops a social security system for the whole of the people
Indonesia;
Act 40/2004 only guarantees that anyone can follow the program
social security that is cool with the social insurance system or savings
is mandatory;
Frasa "everyone is entitled to a social guarantee" should not be interpreted or
disamred with the phrase " any person can follow the warranty program
The desired social. "
Frasa "entitled to social security" must be defined as a fundamental right or
basic rights, so any person (citizen) without exception should
obtain social security in accordance with the constitution's mandate and country
especially the government must guarantee and fulfill the rights of each citizen
state to prosired the social security, without having to register and
pay first;
Whereas the phrase " may follow, registering or registered and
pay or be paid the warranty program social " has a meaning
that is not built and searti or interprets with the phrase" entitled to
social security " but has a narrowless meaning
active participation of each person to select a social security program that
will be followed and a must for the person to actively register and
pay routine and periodic over any program to be followed,
whereas those who do not register and pay (registered or
paid) will not obtain a social guarantee, this is the applicant
assume contrary to the tonsils constitution, as it cannot
guarantee each person to obtain a social guarantee in accordance with
the mandate of the constitution, although in the constitution it is not mentioned what system
35
which must be embraced, but already firmly Article 34 paragraph (2) and Article
28H paragraph (3) of the 1945 Constitution, mandates to form and
develop a social security system for all Indonesian people accordingly.
with the constitution's mandate;
The applicant wishes that the Constitutional Court please
test the Act 40/2004 which the petitioners consider to be articles and phrases
in how many articles as opposed to the 1945 Constitution, with the Control,
the reasons and the legal basis as follows:
THE NORM IS BEING HONED
That the applicant pleads to the Court to test the section-
articles and phrases in the section in the 40/2004 Act to not
contradictory to the norms in the 1945 Constitution with
the expectation of the warranty program social can be thorough and integrated
as well as all Indonesian citizens are entitled to the benefit of
a thorough social security program with an easy process,
effective, efficient, non-deferred and not incriminating, a source of funds
mainly by withdrawing tax from taxpayer and other sources of the fund
. The selection of social insurance systems selected by the maker
constitutional policy, along in the sense of the system
social assistance that is thorough and unified for all Indonesians;
Act 40/2004 which had been promulred in Jakarta on 19 October
2004 and has been listed on the State sheet of the Republic of Indonesia Year
2004 Number 150. That Section 14 of the paragraph (1) and its explanation, as well as Article
17 paragraph (5) of Act 40/2004 stated,
Article 14 of the paragraph (1): " Government gradually lists the recipients of the dues (poor and people) cannot be)
to the social security organizer ";
The explanation of section 14 of the paragraph (1): " Frasa " incrementally"in this provision is intended to pay attention to the terms of the membership
and the program implemented with regard to the capability
the state budget is like beginning with a health assurance program".
That the phrase "gradually" the applicant is unconstitutional
as long as it is to be taken to mean that the Government only registers and
36
repaid poor facir dues and people who were unable to
for the health guarantee program only, while for the program
another social guarantee was not specified, when they would
be registered and Paid for it? Thus poor facir
and people unable to only obtain reassurance
health only.
Article 17 paragraph (5): "At first stage, iuran as referred to in paragraph (4), (iuran the warranty program social for poor facirs
and people cannot afford) paid for by the Government for the program
health assurance ".
That Section 17 of the paragraph (5), the PETITIONERS
inconstitutional along could mean the Government only
bears the dues for poor facir and the people cannot
on the health guarantee program only, So that potential
leads to reduced rights to obtain social security
others, while the Government only paid the dues for
poor facir and people incapable of health guarantee
only;
That word phrase " incrementally and at the first stage" in the chapters a quo, referencing an explanation of Article 14 of the paragraph (1) is able
The applicant concluded that the Government would gradually be
register and pay the social security dues for poor facir and
those who are unable, no first stage will be followed
is a health guarantee program. As for the second, third, third,
fourth and subsequent program what will be followed and prioritised
for poor facir and people cannot afford, there is no certainty
its laws, when they will be registered and Paid for by
government for accident guarantee, pension guarantee, old day guarantee
and guarantee of death and so on?;
That the sections a quo of the applicant are not assured of any
certainty laws for poor facir and people cannot afford to
can enjoy and obtaining intact social security that includes
health assurance, accident guarantee, pension guarantee, old day guarantee
and the guarantee of death, as well as other social guarantees according to
37
the provisions exist in the constitution;
That the phrase "is gradually" in Section 14 of the paragraph (1) and its explanation
and the phrase "at the first" stage " Section 17 paragraph (5), The applicant is contrary to the 1945 Constitution, especially with the provisions of this section:
Article 28D paragraph (1): "Everyone is entitled to the recognition, guarantee of protection and the certainty of fair law and equal treatment
in front of the law".
Article 28H paragraph (3): "Everyone is entitled to a social guarantee that allows for its own development as whole as human
dignified;
Article 34: (1) " Poor Fakir and displaced children are nurtured by country ";
(2)"The State developed a social security system for the entire people
and empowered the weak and inable society
in accordance with the dignity of humanity ";
Article 28I paragraph (4): "Protection, submission, enforcement and fulfillment of human rights is the responsibility of the state especially
government". That our constitution has already firmly mandated that
1. Poor fakir and abandoned children are maintained by the state;
2. Each person is entitled to a social guarantee;
3. The state empowers a weak and inable society
in accordance with the dignity of humanity;
4. The country develops a social security system for the entire people
Indonesia;
5. The existence of a guarantee of recognition, protection and legal certainty that
is fair and equal treatment before the hokum;
That with the cannation of the phrase " incrementally"and phrase"on
first phase" in section a quo may form the legal norm that
The government is only obligated to guarantee public health guarantee
poor alone by ignoring the rights of the related poor citizens
with other social security, under the pretext that it gradually
if the finances of the state and other things are alibis already
permitting, The government will carry out and meet guarantees
38
The social for the poor and the people who ca n' t afford it, until when?
This is where it is and its legal uncertainty occurred;
That in Law 40/2004, indeed it only lists obligations
The government to pay dues for poor facirs and people
people who ca n' t, on Health assurance that exists
in Section 20 paragraph (1) as follows "The social security participant is
any person who has paid the dues or is paid by
Government";
Whereas in later sections set about assurances
retirement, bail accident, an old day guarantee and a guarantee of death, same
once did not list the Government ' s obligation to pay
the dues of the poor facir and the people unable to;
Thus until whenever the Government does not will register
and pay the dues for them if there is no legal basis that
oblids it, meaning until any time, most likely poor facir
will only get a health guarantee alone and will not
gets the other social security that is rightfully entitled and has
guaranteed in constitution;
That the phrase "gradually" and the phrase "at the first stage " already
it is very clear to deny, reduce, damage and sanction
poor facir rights and people unable to
get social security in accordance with the costitution tonsils, and as if-
will Government obligations only guarantee the health of the poor
and cannot afford, whereas other social guarantees are ignored, there
likely until any time will not be noticed;
That Act Number 39 Year 1999 about the Rights of Human Rights
Man states:
Article 7A: " Not one The provisions of this Act may mean that the Government, party, group or any party in
wherever it reduces, damages or abolic the right
human rights or basic freedoms are set up in Invite-
Invite this ";
Article 41 paragraph (1): " Every citizen is entitled to the social security needed for a viable life as well as for development
39
His personal is intact ".
Article 71: " The government is obliged and responsible for respecting, protecting, upholding and advancing human rights
is set in law This, other laws
and the International Law on human rights accepted by
the country of the Republic of Indonesia ";
That social security is a human right
mandated by the constitution and set in the Act to which
can acquired by any citizen, especially for the poor facir and
people who cannot, anyone with any reason not
is justified to reduce, damage and abolish social security
for any citizen and countries especially the Government are obligated
to protect, advance, enforce and meet social security
for the poor and people cannot afford, without having to be postponed again;
That the petitioners are pleading with the Court Constitution for
invalidate the phrase "gradually" In Section 14 of the paragraph (1) and
the explanation and the phrase "at the first stage " and Article 17 paragraph (5) of the Act
40/2004 and expressed in conflict with the Constitution of 1945 as well as stated
do not have a binding legal force so that the provisions
will read:
Section 14 of the paragraph (1) (replacement): "Government registering recipients
iuran assistance (poor facir and inable persons) to
Social Security Smuggling Agency";
The explanation of section 14 of the paragraph (1) was revoked automatically;
Article 17 of the paragraph (5) cancelled, so that the absolute effect of Article 17 paragraph (4);
Article 17 paragraph (4): "The social security program for poor facir and people cannot be paid by the government";
That with the cancellation of the phrase " incrementally" in Section 14 of the paragraph
(1) and its explanation as well as Article 17 of the paragraph (5) a quo then implement
against the clear legal pessimism that the poor and the people-
people are not can be able to obtain intact social security, either
in case of health insurance, accident guarantee, pension guarantee, guarantee
old days, death guarantees and other social guarantees mandated by
the constitution and the Government obligation to register and guarantee
40
The financing of social security for poor facir and people cannot afford
via APBN without having to be delayed again for various reasons that
is not clear;
as for the nominal social security can be Customized to the capabilities
and state finances;
That Section 1 item 3 on the phrase "fundraiser and the phrase
" participants", item 12 on the phrase" country" on the word civil servant and item 14 on the phrase " work" and the phrase" in the working relationship
includes an accident occurring in the journey from home
towards the workplace or otherwise ";
Article 13 of the paragraph (1) on the phrase "incrementally" and the phrase "" in accordance with the steamed social security program ";
Section 17 of the paragraph (1) of the phrase " mandatory participants pay dues", paragraph
(2) in the phrase " is required to collect dues and the phrase adds
iuran " paragraph (3) of the phrase " iuran", Section 20 of the paragraph (1) of the phrase "
has paid the dues or the dues the government paid" and the paragraph
(3);
• Section 21 of the paragraph (1) of the phrase "at least six months since", paragraph (2) of the phrase " after six months"and their phrases";
Article 27 paragraph (1) in "iuran", paragraph (2) on the phrase "iuran", paragraph (3) in the phrase "iuran" and verse (5) in the phrase "iuran";
Article 28 paragraph (1) of the phrase " and would like to include members Other families are required to pay extra dues", Section 29 of the paragraph
(1) on the phrase " work", paragraph (2) on the phrase " work " and the phrase" workers ".
and the phrase or suffer from work";
Section 30 on the phrase " work is a prepaid
iuran", section 31 paragraph (1) in the phrase "work", paragraph (2) on the phrase "work" and "workers";
Section 32 of the paragraph (1) on the phrase "work", paragraph (3) on the phrase "work";
Section 34 of the paragraph (1) on the phrase "iuran" and the phrase "work", paragraph (2) at
phrase "iuran and phrase " work", and paragraph (3) on the phrase " iuran";
Section 35 paragraph (1) in the phrase " or mandatory savings", paragraph (2) on the "retirement period or die of the world";
Article 36 on the phrase "participants who have pay dues";
41
Section 37 of the paragraph (1) of the phrase "at the same time, retired, died world", paragraph (2) on the phrase"all accumulated dues that have been is added to the results The development ", paragraph (3);
Article 38 paragraph (1), paragraph (2) in the " iuran "phrase, The explanation of the Act 40/2004
in the " informal sector could be participants voluntary", Law 40/2004 states:
Article 1 item 3: Social insurance is a mechanism collection
the mandatory funds derived from the iuran to provide
protection of the economic social risks that affliction participants
and/or her family members;
That the phrase of the fundraiser and the phrase of the participants, To the extent
the definition of the section cannot or has not reached out to
the entire Indonesian citizen or throughout the section may
harms the constitutional rights of the citizens to obtain
Social security due to an obligation to pay dues for
all citizens Indonesia then Applicant
unconstitutional and contrary to Article 28H paragraph (3) and Article 34
paragraph (2) of the Constitution of 1945 which states that " Any citizen is entitled
on social and state guarantees. developing a social security system for
the entire Indonesian people ".
That as a substitute for the omitted phrase in the section
The applicant proposes a replacement section with the addition of the phrase
that reads as follows:
Article 1 of item 3 (replacement): Social Insurance is a mechanism
disposal, assistance, social protection, through funds from tax
any Indonesian citizen who has qualified mandatory
pay taxes and other state revenue sources,
in order providing protection at the social economic risk of social economy
the economy that afflies each Citizens of Indonesia and/or
their families;
Section 1 of item 12: The employment is a person,
employers, legal entities, or other bodies that
employ a workforce or organizer of the country.
hiring civil servants by paying salaries, wages, or
42
rewards in other forms;
That the country's phrase in the word of the civil servant in the above paragraph
throughout it is interpreted that state organizers only guarantee
the rights of social security for those already status as
civil servants and ignoring or not meeting social security
for non-status state employees as
civil servants such as: honorary teachers, teachers do not remain, employees are not
remains, the apparatus of the village government and so on, the section of the
Please assume. unconstitutional causes adverse rights
citizens to obtain social and property guarantees
discriminatory against unstatusable employees
the country and cannot guarantee a sense of justice and legal certainty,
The applicant is contrary to Section 28H paragraph (3), Article
28I paragraph (4), Section 28D paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution
at its core stipulats that " any person is entitled to a guarantee
social, Government is obligated to meet social security for the whole
the people, every person entitled to be entitled to protection and certainty
a fair and free law of discriminatory treatment ".
That the section also needs to get the addition of a phrase
commercial to ensure that each person or foundation that
its orientation moves on social or educational fields and others.
The non-profit does not have to be subject to an obligation to withdraw taxes or
adding taxes to its workers because its activities are indeed
social and do not levy meaningful and not
prioriting profit from its activities;
That in order for Article 1 of the 12th item the applicant
proposes a replacement section with the reduction and addition
the full phrase as follows:
Section 1 of item 12 (replacement): " Employers are the people of the person,
employers, hokum bodies or other bodies that commercial
(not non-profit) that employs a workforce or
a state organizer who employs employees with
paying salaries, wages or other forms of reward ";
That with the replacement section AutoGovernment/
43
The state organizer is obligated to bear social security for
all the good employees who are being misled as civil servants as well as
who have not/not the status of civil servants begin to apparatus
village government up to a country alignment apparatus at the
center level;
That with the change of the section then individuals or
a foundation that moves in the social and educational field that is non-profit
must not be subject to liability for the pay the warranty program tax
the social of its workers.
Article 1 of item 14: A work accident is an accident that occurs
in a working relationship, including an accident that occurs in
the journey from home to work or vice versa, and
the disease caused by the working environment;
That the working phrase in the work accident and the crash phrase that
occurs in a working relationship, including an accident that occurred in
the journey from the house to the workplace or otherwise in the section
the applicant consider contrary to Article 34 of the paragraph (2) of the UUD
1945, Article 28H paragraph (3), along only sectoral is not
thorough and unintegrated and does not include various types
either accident caused by accident in the workplace or
Another accident due to natural disaster disaster, social conflict and
other crash forms, so that if a person
had an accident outside the work environment, would not have obtained
an accident guarantee according to the Act 40/2004, with
eliminating the existing phrase in that section and
add some phrases that the Applicant considers to be important
then the constitutional rights of the petitioners can be fulfilled. For that
the applicant submits an alternate section as its successor which
reads as follows:
Article 1 of item 14 (replacement): " The accident is an accident that
happens in a wider sense of good that occurred in the environment
work or due to natural disaster disaster such as fire, earthquake
earth. Flooding and so on, or as a result of social unrest and form-
another form of accident including an accident in an attempt,
44
works, traffic accidents and so on and from the disease
caused by the working environment;
PARTICIPATION AND IURAN That the applicant assumes the membership as a member or
Social security recipients are absolute for all citizens
Indonesia without except whether working in a formal environment or
informal, either capable or unable, all should be registered
automatically as a social security participant and a government that
is obligated to data, identifying and underlying all citizens
the country of Indonesia as a participant, the Government is also entitled to
assigning the employers in order to register its workers simultaneously
without going through the unclear staging of the limit time, because in the era
information technology that is on line this registration process is very easy
does not need to be gradual anymore;
That registration of the worker as a member of the social security program must be
thoroughly and integrated should not select a portion of the program followed
only but must All programs are required according to the rules and
Invitation for the sake of improving the welfare and the tarf
life of the worker.
Article 13 of the paragraph (1): Employers incrementally is required to register itself and its workers as participants to the Organizing Board
Social Security, in accordance with the social security program followed.
That phrase incrementally and phrases in accordance with the guarantee the social followed as long as it can be taken to mean that employers may delay to register their workers as recipients
social security and the giver work can choose a portion of the program from
a social guarantee that will Followed, the petitioners are unconstitutional
and contrary to the 1945 Constitution Article 28D paragraph (1) and section 28H
paragraph (3) stipulats that any person is entitled to
the protection and certainty of the law and entitled obtaining social security
(in whole, thorough and integrated) cause if the employers
procras-nunda to register its workers and simply vote
certain social guarantees only that will be followed, then the rights of the worker to obtain social security will be ignored or at least potential
45
reduces the rights of workers because workers will only
obtain the social security selected and determined by the employers
only;
For that the applicant submits an alternate section with the The reduction
and the addition of the phrase in the section to be able to guarantee the right
of the worker's constitutional to obtain a social security complete,
unified and thorough that reads as follows:
Section 13 of the paragraph (1) letter a and letter b (substitute) stated:
1a. The government is obligated to data, identify and register
all Indonesian citizens as participants of the warranty program
social.
1b. The employers are required to register themselves and their employees to
the social security organizer as a program participant
social security.
Article 17 of the paragraph (1), paragraph (2) and paragraph (3) states:
(1) Any participants required to pay dues whose magnitude is set
based on a percentage of the wages or a certain nominal amount;
(2) Any workman is required to collect the dues of its workers,
adds the dues which is its obligation and is paying
iuran Those to the Social Security Organizing Board are
periodically;
(3) Besitions iuran as referred to in paragraph (1) and paragraph (2)
specified for each program type periodically in accordance with
social development, economic and basic needs of life that
is worth.
That the player phrase is required to pay dues, the phrase is required to collect the dues
and adds the dues and dues that are in the chapters at
above can be interpreted as voluntary dues and do not mean
as a mandatory tax payable or added to
pay the worker tax by the employers of the applicant assume
inscontittional throughout the time of the voluntary nature of the dues. The applicant
assume the constitutional constitutionality is mandatory and can be withdrawn
when the taxpayer does not comply with its obligations. With
tax payments mean the source of the social security program can be
46
fulfilled definitively in accordance with the magnitude of the required funds.
That the Government is entitled to determine the tax rate for the program
social security if the conventional tax payment system and
Other income countries are insufficient to meet the need
social security program with the principle is not incriminating to the people
and can be affordable by the entire Indonesian people by bearing
tax burden for The people who are weak and incapable.
That all along the dues for social security are defined as payment
The voluntary premiums of the applicant consider contrary to Section 28D
paragraph (1) which states that each person is entitled to the protection
and the legal certainty, because if the nature of its nature is only voluntary and
may mean that any person/employers may pay dues
or do not pay the dues that are its obligations then citizens ' rights
states to benefit from the national social security system not
will fulfilled or at least a potential may reduce the rights of citizens
the country to obtaining social security, for which it is entitled
obtain social security according to the Act 40/2004 only those
pay dues or be paid for dues by other parties.
That to ensure the existence of legal certainty and legal protection
of any Indonesian citizen then the dues phrase must be replaced with
the tax phrase. For which the applicant submits a replacement section with
the addition of the section and the reduction of the phrase or the addition of the phrase
The applicant is more appropriate and can provide protection and
legal certainty to the whole of the people Indonesia to acquire
Social security is intact, unified and thorough, which reads
as follows:
Section 17 verses (1) letters a and letter b, paragraph (2), paragraph (3) and paragraph (4)
(replacement)
1a. The government defines a large tax rate for any citizen,
to support the social security program if conventional taxes
and other state revenues are not yet sufficient.
1b. Each taxpayer must pay a tax that is specified
based on a percentage of the wages and its income or an
a certain amount of nominal value.
47
(2) Any employers who meet the requirements, are required to collect
taxes from their workers and add taxes that are
obligations to the social security alignment or
the tax officer who appointed.
(3) The tax rate referred to in paragraph (1) and paragraph (2)
is set for each type of program periodically according to
the economic social development and the basic needs of living.
Health Guarantee The health guarantee is a human rights that has been
guaranteed in the 1945 Constitution on Section 28H paragraph (1) and Article 34 of the paragraph (3),
then it should be any Indonesian citizen without exception and without
any condition must obtain a proper health service and
adequate and The government is required to provide a health care facility
which is good, decent and adequate.
That Act 40/2004 sets out:
Article 20
(1) The health assurance participant is any person who has paid
iuran or The file is paid for by the Government.
That the phrase that has paid the dues or its dues has been be paid
The government of the applicant considers constitutional insn to be long
meaning that the right to health guarantee
is only those who pay their dues or are paid for by
The government. The applicant is opposed to
Article 28H paragraph (1) and Article 34 of the paragraph (3), which states that
everyone is entitled to the mandatory health care and government
providing a good health facility. and adequate.
That the section may eliminate or at least potential
reduce the constitutional rights of the petitioners if not
pay the health guarantee dues or its dues are not paid
by the party Another. For that the applicant submits a replacement section
with the addition and subtraction of the phrase as follows:
Article 20 paragraph (1) (replacement)
The health guarantee participant is any citizen of the Republic of Indonesia,
well Capable or unable to pay taxes, or who
48
The taxes are paid by the government or the employers.
Section 20 of the paragraph (3)
(2) Each participant may include another member of the family
which is the date with the addition of the dues.
That Section 20 of the paragraph (3) above the applicant is considered
unconstitutional as long as it can be interpreted to include
or may not include other members of the family that
be in it in the process of being a member of the other.
The social security program, it
The applicant is contrary to Article 28D of the paragraph. (1) which
specifies that each person is entitled to a protection
and legal certainty, because if it is not registered or not
included it may remove the family member's right to
get Social security. For that section, the applicant
please be cancelled, as the subctance of the section is already in place
in Article 20 of the paragraph (2) which states "member of the participant's family
is entitled to receive the benefits of health assurance".
Section 21
(1) The health assurance Act remains valid at least 6 (six)
months since a participant has a working relationship disconnect.
(2) In the event of the participant as it is referred to in paragraph (1) after 6
(six) months have not obtained a job and cannot afford it,
its dues are paid by the Government.
That the longest phrase 6 (six) months since and the phrase after (six)
the month of the month, as long as it can be interpreted that a person that
experienced a working relationship disconnect after six months up means
end of membership as a health guarantee para
The applicant is considered unconstitutional and contrary to section 28H clause
(1) it states that every citizen is entitled to
the health ministry. With the enactment of the section it can
threaten or eliminate the rights of the citizens who are layoffs to
get a guarantee of health care. For that the applicant
submits a replacement section with the addition, subtraction and
replacement of the phrase that reads as follows:
Section 21 of the paragraph (1) and paragraph (2) (replacement)
49
(1) The health guarantee event remains in effect, if the participant
suffers from a working relationship disconnect.
(2) In the event that participants are referred to in paragraph (1) have not
obtained the job and cannot be able to The tax returns are paid by
The government.
Article 27
(1) The health insurance coverage for the wage recipient
is determined based on the percentage of the wage to a certain extent,
that is gradually borne out jointly by workers and the giver
Work.
(2) The health insurance coverage for participants who do not receive
wages are determined based on a regularly reviewed basis.
(3) The price of a health guarantee for the recipient of the dues
is determined {\cf1} {\cf1 (5), paragraph (2), and
paragraph (3), and the pay limit as referred to in a paragraph (4) is set
further in the Presidential Regulation.
That throughout the phrase iuran can be interpreted as a voluntary donation,
The applicant is considered unconstitutional and contrary to section 28D paragraph
(1) which states that each person is entitled to an
protection and legal certainty because if the phrase is defined
as a donation voluntary, then if not done will
eliminate the rights of citizens to obtain a guarantee
health.
That in order to make a determination of legal certainty and
reapply the funds for the health assurance program, then the phrase "iuran"
contained in Section 27 of the paragraph (1), paragraph (2), paragraph (3) and paragraph (5) please
be replaced with the word "tax". For those applicants submit the section
replacement by replacing the phrase iuran with the tax phrase, so
reads as follows:
Section 27 paragraph (1), paragraph (2), paragraph (3) and paragraph (5) (replacement)
(1) The tax rate The health guarantee for the recipient of a wage
is determined based on the percentage of the wage to a certain extent,
that is gradually borne out together by workers and the giver
50
work.
(2) The health guarantee tax for participants who do not receive
wages are determined based on a regularly reviewed basis.
(3) The health guarantee tax for the recipient of the dues
is determined (5) The following terms are:
(5) The following tax (s), paragraph (2), and
paragraph (3), as well as the pay limit as referred to in paragraph (4) is set
further in the Presidential Regulation.
Article 28
(1) Workers who have family members more than 5 (five) people and
wants to include other members of the family to pay
additional dues.
That such passage can be interpreted as workers who have
a family member of more than five may include a list of employees.
and may
also do not include members of the sixth, seventh and
family members on the health guarantee program, then the section
The applicant is considered unconstitutional and contrary to Article 28D of the paragraph
(1) and 28H verses (1), for if a sixth, seventh and
member of the family is available.onwards are not included in the health guarantee program then
they do not obtain a guarantee of legal certainty to obtain
health assurance. For that, the applicant pleads to the Court
to cancel the article.
Accident Guarantee That the working phrase in the work accident please be removed, cause
with the release of the work phrase, scope The accident guarantee can be more extensive and thorough for any type of accident, either due to
work accident and due to natural disaster, social conflict,
or other forms of accidents that befall citizens country
Indonesia.
That the applicant has ever handled an accident case against
someone outside of a working clock that collapsed on the highway, when
driving a motor vehicle, it turned out to be no social guarantee
from Jamsostek under the pretext of taking place outside of work hours, and also not
getting santunan from the services of the raharja because its accident was not the result of
51
traffic was due to the collapse of the tree. For that matter
The applicant pleads for an accident guarantee program to be formulated
in a new broader form and covers various types and shapes
accidents thoroughly.
Article 29
(1) Warranty work accidents are organized nationally
based on the social insurance principle.
(2) The work accident guarantee is hosted with the purpose of ensuring
in order for participants to benefit health care and santunan
cash if a worker has a work accident or
suffering from a disease Due to work.
That the phrase "work" in a work accident along means that
that can obtain health care and cash benefits from
an accident guarantee program can only be acquired for those
experience accident at work or as a result of work or in
on the way to or returning from the work of the applicant to be unconstitutional,
for ignoring the other types of accidents and disasters that
befall on the citizens. country Indonesia, while the right to life, rights
to acquire health and rights to prod the benefits
constitutes a fundamental right guaranteed by the constitution. The phrase
contrary to Article 28I (2), Article 28H paragraph (1) and Article 28H
paragraph (2) of the Constitution of 1945 which states that the right to life is
is a human right that cannot be reduced in circumstances
whatever, everyone is entitled to health care and any
people are entitled to a special ease and treatment to
obtain the opportunity and benefit.
That in the event of an accident or an accident in the any form,
then all we have to save first is life/right to
life is then the right to obtain health care and the right
to obtain a cash guarantee from a health insurance program
or an accident, if it suffers a total permanent defect.
That to attempt to make it The crash warranty program may
cover all and various aspects and types of accidents that override
to each person, then the applicant submits a replacement section with
52
reduces and adds to the phrase that reads as follows:
Section 29 paragraph (1) and paragraph (2) (replacement)
(1) Accident guarantees are held nationwide based on
the principle of social insurance/assistance social.
(2) The crash guarantee is organized with the purpose of ensuring that
participants benefit health care and santunan
cash if a person has an accident in either accident
that has to do with jobs or crash forms
others.
Article 30
A job accident guarantee participant is someone who has paid
iuran.
Section 31
(1) Participant in a working accident is entitled to the benefit of health care according to their medical needs and benefits of cash in the event of a fixed total defect or death. world.
(2) The benefit of a work accident guarantee that cash is provided at once to the heirs of the dead worker or the disabled worker according to the disability level.
(3) For certain types of service or Certain crash, giver
work levied up cost.
Article 32
(1) The benefit of the work accident guarantee as referred to in
Section 31 of the paragraph (1) is provided at a government-owned
or private health facility that qualiuses and maintains cooperation with
Organizing Board Social Security.
(3). In the event of a work accident occurring in an area that is not yet
available health facilities are eligible, then in order
meet medical needs for participants, Organizing Agency
Social Security is mandatory for compensation
Section 34
(1) The event of a work accident guarantee is as large as the percentage
of the wages or earnings covered entirely by
the employers.
53
(2) The sum of the work accident guarantees for participants who are not
receiving wages is the nominal amount specified in a regular basis
by the Government.
(3) The value is equivalent to the paragraph (1) varies for
any worker group corresponds to a working environment risk.
That the phrase "work" in the work accident and the phrase "iuran" in
pay dues and the magnitude of the iuran In Section 30, Section 31, Section 32 and
The Applicant Applies unconstitutional throughout the phrase
work can be interpreted that obtaining a health guarantee or
cash benefits only those who have an accident at the time
work or that is related to workers and phrases iuran para
The applicant considers constitutional inconstitutional to be interpreted as a system
a voluntary payment in which one can pay
the dues or not pay dues according to its will.
they follow crash warranty program or do not follow
warranty program Accident. The applicant is contradictory
with Article 28D of the paragraph (1), Article 28H paragraph (1) and Article 28H paragraph (2) of the Constitution
1945 stipulating that each person for protection and
legal certainty, everyone is entitled to the ministry health and
everyone is entitled to the ease of obtaining the opportunity
and benefits, because if the work phrase and dues remain listed then
a person ' s right to obtain a guarantee of protection of legal certainty
to obtain health insurance and obtain benefits that
in cash What happens outside of a work accident will be ignored
or it will not be obtained. For which the applicant submitted the section
a replacement with the reduction and addition of the phrase in the sections
so that it reads as complete as the following:
Section 30 (replacement)
" The crash guarantee participant is every citizen of the Republic
Indonesia who has already paid taxes for the able or its taxes
paid the government or its employers ".
Section 31 of the paragraph (1) and paragraph (2), (replacement)
(1) The participants in an accident are entitled to benefit
in terms of health care according to their medical needs and
54
obtaining the cash benefit in the event of a total defect
fixed or died theworld. (2) The benefit of an accident guarantee that cash is provided
at once to the heir of a deceased person or
a person with disabilities according to the disability level.
Article 32 of the paragraph (1) and paragraph (3) (replacement) (1) the crash benefits crash as referred to in Section 31
paragraph (1) is given to a government-owned health facility or
private eligible and co-working with the Agency
Social Security Organizer.
(3). In the event of an accident occurring in an unavailable area
a qualified health facility, then in order to meet
the medical needs for participants, the Social Security Organizing Agency
is mandatory for compensation.
Article 34 paragraph (1), paragraph (2) and paragraph (3) (replacement)
(1) The crash tax guarantee is as large as the percentage
of the wages or earnings paid in all by
the employers.
(2) The Great. Job accident guarantee tax for participants who do n' t
receiving wages is the amount nominally specified
by the Government.
(3) The tax price as referred to in paragraph (1) varies for
any worker group corresponds to the risk of the working environment.
The Old Day Guarantee That the petitioners are very interested in perfecting
articles related to old-day assurance with intent to
any citizen working in the informal sector, working in the sector
a non-profit formal and those who are in poor facir and
people ca n' t afford, at times entering an advanced age or when
experiencing a permanent total disability, they get a guarantee that
must be every month that is cash for an increase in the life rate
and the social well-being that deserves as a human being the dignified
while being a civil servant and working in the sector
the commercial formal (not the non-profit) is getting a pension guarantee
55
Article 35 (1) of the parent day guarantee is hosted nationally based on the principle
social insurance or mandatory savings. That the phrase "mandatory savings" as long as it can be interpreted as a form of savings or savings that is owned by a participant and may be taken at once at a time when a person is already in the advanced age of the applicant, it is not possible to be able to be able to Guarantees the survival and well-being of those when after the money is taken everything will be consumed or for other purposes while the age is still continuing in uncertain times. The supplicants are in conflict with Article 28B (2), Article 28H (1) and Article 28I verse (4) which states that each person is entitled to the survival and life of the prosperous born bathin as well as entitled to the fulfilment of the right to obtaining social security especially the guarantee of an old day. For that the applicant submits a replacement section by reducing the mandatory saving phrase replaced with the social aid phrase, thus it reads as follows:
Article 35 paragraph (1) (replacement) (1) Old day guarantee is held nationwide based on the principles
social insurance or social assistance. Section 35 paragraph (2)
(1) An old day guarantee is held in order to ensure that participants receive cash in the event of retirement, have a total disability fixed, or die.
That the phrase " retirees or dead the world" in this section the Applicant Considers not appropriate to be listed in this paragraph, as the pension guarantee is set forth in the pension guarantee program for those working in the formal sector and status as a civil servant, As for the dead, the world has been set up in the death bail program. That the phrase "retirees and dies" the petitioners are
unconstitutional as long as it can be interpreted to be entitled
an old day's guarantee is those who enter the age of retirement or meningal
the world with obtaining cash as well as a nominal amount of money
which is tabled with its development results. It is that
The applicant is contrary to Article 28D of paragraph (1) that
states that each person is entitled to a protection and
legal certainty, because the section is not guaranteed or not
56
guarantees the rights of any person working in the informal sector, sector
formal non-profit and poor facir and people unable to
get an old day guarantee that is cash earned. every
month to maintain its survival and life welfare
at the time of entering the advanced age. For that the applicant proposes
a replacement section that reads as follows:
Section 35 paragraph (2) (replacement)
(2) An old day guarantee is held in order to guarantee that
participants receive any cash month if entering the age of
advanced or experiencing a total defect remains.
Article 36
The parental guarantee participants are participants who have paid dues.
That the "participants who have paid dues" the petitioners assume
inconstitionally as long as it means that the right to receive a guarantee
the old days are only those who pay dues or save money,
whereas who do not pay and do not save are not entitled to
obtain an old day guarantee.
The applicant is considered in conflict with Article 28D of the paragraph
(1), Article 28I paragraph (4) and Article 28I paragraph (2) stipulats that
every person is entitled to protection and legal certainty, fulfillment,
enforcement and the sum of the right to obtain social security and
reserves the right to obtain protection from the discriminatory treatment,
because the Article 36 does not guarantee the fulfilment of the right to
obtain an old day guarantee and discriminating against people-
people who work in informal, formal non-profit and people
who cannot, because they will not obtain an old day guarantee
if it does not pay the dues or not saving. For that
The applicant submits a replacement section as follows:
Section 36 (replacement)
The parent day guarantee is every citizen of the Republic of Indonesia
which is already paying taxes for the taxable or The tax returns are paid
by the Government.
Article 37
57
(1) The benefit of an old day guarantee of cash is paid at once in
when participants enter the age of retirement, die, or
experience a permanent complete disability.
(2) The benefit of parental assurance specified based on all
accumulated iuran plus results
its development.
That phrase "at once, retired, died, and all accumulated
iuran which has been named plus its development", para
The applicant is considered to be unconstitutional to the extent that participants only
will An old age guarantee a number of all accumulated iuran that
has been made available to the development, and at the time
entered retirement or died. The applicant
assume in conflict with Article 28A, Article 28B of paragraph (2) and Article 28H
paragraph (1) of the Constitution of 1945 which states that each person is entitled to live and
maintain its life and survival as well as the right to which it is entitled. For
a prosperous life was born bathin. Because if an old day guarantee is granted
at the time a person enters a retirement age or dies
the world can then threaten the survival and well-being of birth
and bathin for the citizens who enter the age Go. It should be
given each month at an advanced age throughout its life.
For that the applicant proposes a replacement section with
the reduction and addition of the phrase so that it reads as follows:
Section 37 verses (1) and paragraph (2) (substitutes)
(1) the parental benefit benefits of cash are paid each month
at the time the participant enters further or has a total defect
remains in accordance with the laws.
(2) The benefits of an old day guarantee that cash is published
each month is determined based on the minimum need for life
deserves to consider the constrition of the tax payment
that concerned or other considerations in accordance with
the laws.
58
Section 37 paragraph (3)
(3) The payment of parental benefit benefits may be provided in part
to a certain extent after the error reaches a minimum of 10
(ten) years.
That the Applicant Consider this unconstitutional as long
It can be interpreted to mean that people who are at this age are aged
are not entitled to social security when the membership
as the participants of the old day warranty program has not yet reached. Ten
years since the Act was enacted. The applicant
consider contrary to Article 28H of the paragraph (3) which states that
any person is entitled to a social security that allows
to develop itself in a whole way as a dignified human being,
for that the Applicant implores the section to be cancelled and
declared contrary to the 1945 Constitution.
Section 38 of the paragraph (1)
(1) The warranty of an old day's warranty for the recipient of a wage recipient
is set based on a certain percentage of the wages or
certain income incurred together by the employers and the
workers.
That Article 38 paragraph (1) above does not need to be listed again, as
the recipient of the wage already obtained a pension guarantee, if it is listed
means discriminatory on that does not receive a wage. This
The applicant is contrary to Article 28I of the paragraph (2) that
stipulating that everyone is entitled to be free from the discriminatory
treatment. For that this section must be cancelled and stated
contrary to the 1945 Constitution.
Article 38 paragraph (2)
(2) Besitions iuran an old day guarantee for participants who do not receive
wages are set based on the nominal amount specified in
periodically by the Government.
That "iuran" phrase should be replaced by a tax phrase, because the phrase
iuran The applicant is considered unconstitutional as long as it can be interpreted as
iuran or voluntary savings, in which only parties pay their dues
alone is entitled to an old day guarantee and as long as it is not
59
there is a force force for each person to pay dues
in order to follow an old day assurance program. This
The applicant is contrary to Article 28D of the paragraph (1) and Article 28H
paragraph (3) which states that each person is entitled to the
legal certainty and is entitled to a social guarantee, because if
A person doesn't pay their dues. They don't get any certainty for
obtaining social security especially the guarantee of an old day. For the applicant
propose a replacement section by replacing the phrase iuran with the phrase
tax, thus it reads as follows
Section 38 of the paragraph (2) (replacement)
(3) The parental tax tax is an old day for the participants who not accept
wages are set based on the nominal amount specified
periodically by the Government.
That the explanation of the Act 40/2004 on the principle of the principle of inclusion
is mandatory for the phrase "sector informally can be a participant
voluntarily" The phrase applicants are considered unconstitutional to the extent that informal sector membership includes
private teachers, private lecturers, Kiyai, ustadz, pastours, priests, pedande, monks,
farmers, merchants, hoarworkers, fishermen, coolies, shop waiters, TKI,
TKW, poor facir, people are not able and so on are
being voluntary and not automatically entitled to get a guarantee
social. The applicant considers contradictory to Article 34
paragraph (2) and Article 28H verse (3) that states
develop a social security system for all Indonesians and
empowers a weak society. and unable to, any person
entitled to a social guarantee that allowed for his development
as a dignified human.
That with removal of the phrase "The informal sector could be a participant in voluntary ", then every Indonesian citizen is required
be a member social security program and entitled to benefit
of a thorough social security program and social security program
may include all of Indonesia as well as empowering
society that is weak and not able. For that the phrase must be cancelled and declared contrary to the 1945 Constitution.
60
3. PETITUM
Based on the entire description, the reasons and the already
under the law as well as being supported by such evidence,
The petitioner pleads the Constitutional Court to decide:
1. Accept and grant the supplicant for the whole.
2. Stating that:
Article 14 on the phrase "gradually and its explanation" as well as Article 17
paragraph (5), as long as it can be interpreted that the Pamereches only registered
and paid the dues of the poor facir and the people who did not able
for the health assurance program only, while for the warranty program
the other social is not specified, when they will be registered and
paid for the dues. Section 1 item 3 of the phrase "fundraiser and
entrant phrase", as long as it does not or
has not reached out to all citizens of Indonesia or as long as
such articles may be detritable to the same person as a whole. The constitutional rights of citizens of the country to
obtain social security due to the obligation to pay
iuran for all Indonesian citizens item 12 on the phrase "country"
in the word civil servant as long as it is defined that the organizers
the country only guarantees the rights of social security for those already
status as a civil servant and ignoring or not meeting
a social guarantee for an unstatusable state organizer
as a civil servant and item 14 on the phrase "work" and the phrase " in
working relationships include accidents that occur on the way from
home to work or vice versa ", as long as it is only
sectoral is not thorough and unintegrated and does not include a variety of
types Good accident caused by accident in the workplace or
Another accident caused by accident. natural disaster, social conflict and form-
another form of accident, Article 13 paragraph (1) on the phrase "
gradually" and the phrase "in accordance with the steed social security program",
to the extent it can be interpreted that the employers can delay
to register its workers as a social security recipient and
employers may choose a portion of the program of social security that
will be followed only, Section 17 of the paragraph (1) on the phrase " mandatory participant pay
iuran ", verse (2) on the phrase" shall collect dues and the phrase adds
61
iuran "paragraph (3) of the phrase" iuran ", as long as it is defined as iuran
voluntary and not defined as the mandatory tax payable
or be added to pay the worker tax by the employers,
to the extent that the dues are voluntary and can be interpreted to mean that any
persons or employers may pay or do not pay dues.
Article 20 of the verse (1) on the phrase " which has paid the dues or dues
is paid government " to the extent that it is entitled to get
health assurance only those who pay their dues or dues
are paid by the government, and the verse (3), as long as it can be interpreted
includes or may not include the family members
the other being The date is in the social security program,
Article 21 of the paragraph (1) of the phrase "the longest six months since", paragraph (2) in
the phrase "after six months" and the phrase ", as long as it translates to
that someone is experiencing disconnect of working relationship after
six months up means ending up to membership as a attendees
health reassurance. Article 27 paragraph (1) in the phrase "iuran", verse (2) in the phrase
"iuran", verse (3) in the phrase "iuran" and verse (5) in the phrase "iuran",
throughout the phrase iuran can be interpreted as voluntary donation, Article
28 verses (1) in the phrase " and want to include a family member who
another is required to pay extra iuran ", as long as it means the worker
who has a family member of more than five people can
Follow and may not Including family members
The sixth, seventh and so on to the bail program
Health. Article 29 paragraph (1) of the phrase "work", paragraph (2) of the phrase "work
and the phrase worker and phrase or suffer from work",
to the extent that it can be obtained for health care
and the cash benefits of The crash warranty program may only be
obtained for those who have an accident at work or
as a result of work or on the way to or returning from work. Section 30
on the phrase "work is a prepaid", Section 31
paragraph (1) in the phrase "work", paragraph (2) of the verb "work and phrase" worker
which ", Section 32 of the paragraph (1) in the phrase" work ", paragraph (3) on the phrase" work ",
Article 34 of the paragraph (1) of the phrase "iuran and phrase" work ", verse (2) in the phrase
" iuran and the phrase "work", and verse (3) of the phrase "iuran", along the phrase
62
work can be interpreted as having health assurance or
cash benefits only those who have an accident at the time
work or that has to do with the work and the same phrase as long
can be interpreted as a voluntary payment system in which
one can pay dues or not pay dues accordingly
with its will whether they follow the warranty program
accident or not Following an accident bail program. Section 35
paragraph (1) of the phrase "or mandatory savings", as long as it is defined
as a form of savings or savings that participants and
may be taken at once a person has entered an advanced age
The applicants are considered to be on the Constitutional Court because they will not be able to guarantee
their survival and well-being when after the money
is taken all of which will be consumed or for any other purpose
while the age is still continued in an uncertain time.
Verse (2) on the phrase " retirement or dead ", as long as it can
be interpreted as being entitled to an old day guarantee are those
entering the age of retirement or the meningal world by acquiring
cash at once a number of nominal money being held As well as results
the development. Article 36 of the phrase "participants who have paid
iuran", as long as it means that the right to receive an old day guarantee
only those who pay dues or save money, whereas
does not pay and is not saving No right to acquire
an old day guarantee. Article 37 of the paragraph (1) of the phrase "at once retired,
dies", verse (2) in the phrase "all accumulated dues that have been
are provided with the result", as long as it is interpreted that
participants will only get The old days guarantee a number of accumulated amounts of accumulated
iuran which has been provided with the development, at once
at the time of entering retirement or the death of the world. Verse (3), as long as
may be interpreted to mean that people who at this time are aged
are not entitled to social security when the membership
as a participant in the parent day program has not reached the age of ten.
the year since the law was enacted. Article 38 paragraph (1) and paragraph (2)
in the phrase "iuran" can be interpreted as dues or savings
volunteering, in which only the paying side is entitled
63
gets an old day guarantee and along no power that
forces for any person to pay dues in order to follow
an old day assurance program. The explanation of the 40/2004 Act on the principle of the principle
the inclusion of the law of 40/2004 on the phrase "informal sector may
to be voluntary participants" as long as it can be interpreted that
informal sector membership that includes Private teachers, private lecturers,
Kiyai, ustadz, pastur, priest, pedande, monk, farmer, trader, labor
tani, fisherman, building, shop waiter, TKI, TKW, poor facir, person-
people are not able and so on is the nature of the voluntary and not
automatically entitled to get social security, Act 40/2004
expressed contradictory to the 1945 Constitution and declared the article
the replacement for which the petitioners submitted did not conflict with the Constitution
1945.
3. Stating that:
Article 14 on the phrase "gradually and its explanation" as well as Article 17
paragraph (5), as long as it can be interpreted that the Government is only registering
and repaying the poor facir dues and people who do not able
for the health assurance program only, while for the warranty program
the other social is not specified, when they will be registered and
paid for the dues. Section 1 item 3 of the phrase "fundraiser and
entrant phrase", as long as it does not or
has not reached out to all citizens of Indonesia or as long as
such articles may be detritable to the same person as a whole. The constitutional rights of citizens of the country to
obtain social security due to the obligation to pay
iuran for all Indonesian citizens item 12 on the phrase "country" in
the country's civil servant has been defined as the " that the country organizer
only guarantees the rights of social security for those already Status
as a civil servant and ignoring or not meeting the warranty
social for an unstatusable state organizer
civil servant and item 14 on the phrase "work" and the phrase " in relation
work including accidents that occur on the way from home
towards work or vice versa ", throughout only being sectoral
is not thorough and unintegrated and has not covered various types
good accidents Due to an accident in the work environment or
64
Another accident due to natural disaster, social conflict and form-
another form of accident, Article 13 of the paragraph (1) in the phrase "gradually" and the phrase "in accordance with the steadied social security program",
to the extent that the employers may delay
to register its workers as a social security recipient and
employers may select a portion of the program of social security that
will be followed, Article 17 paragraph (1) in the phrase "mandatory participant
iuran", paragraph (2) of the phrase " mandatory Leaping and phrases added
iuran "paragraph (3) in the phrase" iuran ", as long as it can be interpreted as iuran
voluntary and not defined as the mandatory tax payable
or added to pay the tax workers by the employers
to the extent that their nature is voluntary, and may mean that any
persons or employers may pay or do not pay dues.
Article 20 of the paragraph (1) on the phrase " which has paid dues Or the government is paid for the government " as long as it's meant to be.
Health guarantees are only those who pay their dues or their dues
paid for by the government. and verse (3), to the extent that it can be interpreted
includes or may not include family members
another that is the date of the social security program,
Article 21 of the paragraph (1) of the phrase " at least six months since ", paragraph (2) in
the phrase" after six months "and the phrase", to the extent that it is interpreted
that a person who is experiencing a working relationship after
six months to the top means the end of the membership of the relationship. as a participant
Health guarantee. Article 27 paragraph (1) in the phrase "iuran", verse (2) in the phrase
"iuran", verse (3) in the phrase "iuran" and verse (5) in the phrase "iuran",
throughout the phrase iuran can be interpreted as voluntary donation, Article
28 verses (1) in the phrase " and want to include a family member who
another is required to pay an extra iuran ", as long as it means the worker
who has a family member of more than five people can
Follow and may not Including family members
The sixth, seventh and so on to the warranty program
Health. Article 29 paragraph (1) of the phrase "work", paragraph (2) of the phrase "work
and the phrase worker and phrase or suffer from work",
to the extent that it is possible to obtain health care
65
and the cash benefits of an accident warranty program may only
be obtained for those who have an accident at work or
as a result of work or on the course of or returning from work. Section 30
on the phrase "work is a prepaid", Section 31
paragraph (1) in the phrase "work", paragraph (2) of the verb "work and phrase" worker
which ", Section 32 of the paragraph (1) in the phrase" work ", paragraph (3) on the phrase" work ",
Article 34 paragraph (1) of the phrase "iuran and phrase" work ", paragraph (2) of the phrase
" iuran and the phrase "work", and verse (3) of the phrase "iuran", along the phrase
work can be interpreted as obtaining a health guarantee or
Cash benefits only those who have an accident at the time
work or that is related with jobs and the phrase iuran along
can be interpreted as a voluntary payment system where
one can pay dues or not pay dues accordingly
with its will whether they follow the warranty program
accident or does not follow the crash warranty program. Section 35
paragraph (1) of the phrase "or obligatory savings", as long as it is defined
as a form of savings or savings shared by participants and
may be taken at once at a time when a person has entered an advanced age,
The applicants are considered to be on the Constitutional Court because they will not be able to guarantee
their survival and well-being when after the money
is taken all of which will be consumed or for any other purpose
while the age is still It continues in an uncertain time. verse
(2) in the phrase "retirement or die of the world", as long as it can
is interpreted as having the right to obtain an old day guarantee is they
entering the retirement age or the meningal world by acquiring
cash At the same time, there was a number of money that was left behind.
The development. Article 36 of the phrase "participants who have paid
iuran", as long as it means that the right to receive an old day guarantee
only those who pay dues or save money, whereas
does not pay and is not saving No right to acquire
an old day guarantee. Article 37 of the paragraph (1) of the phrase "at once retired,
dies", verse (2) in the phrase "all accumulated dues that have been
are provided with the result", as long as it is interpreted that
participants will only get The old days guarantee a number of accumulated
66
iuran which has been provided with the development results, at once
upon entering retirement or dying of the world. Verse (3), as long as
may be interpreted to mean that people who at this time are aged
are not entitled to social security when the membership
as a participant in the parent day program has not reached the age of ten.
the year since the Act was enacted. Section 38 paragraph (1) and paragraph (2)
in the phrase "iuran" as long as can be interpreted as dues or savings
volunteering, where only paying the dues should be entitled
to get old and long day warranties and no one power that
forces for each person to pay dues in order to follow
an old day assurance program. The explanation of the 40/2004 Act on the principle of the principle
the inclusion of the law of 40/2004 on the phrase "informal sector may
to be voluntary participants" as long as it can be interpreted that
informal sector membership that includes Private teachers, private lecturers,
Kiyai, ustadz, pastur, priest, pedande, monk, farmer, trader, labor
tani, fisherman, building, shop waiter, TKI, TKW, poor facir, person-
people are not able and so on is the nature of the voluntary and not
automatically entitled to get social security, Act 40/2004
is declared to have no binding legal force, and states
The replacement section which the applicant is proposing can be accepted and has
the power of the law binding;
As for the complete sound of the replacement section of the section is following:
Article 1 of item 3
Social insurance is a coping mechanism, assistance,
social protection through funds from the tax of every citizen
Indonesia who has qualified mandatory pay taxes and
other state income sources, to provide
protection of the economic social risk that befalls each citizen
the country of Indonesia and/or his family.
Article 1 of item 12
The workman is a person, businessman, legal entity or
bodies other commercially (non-profit) commercial (not non-profit) that
employs a workforce or state organizer who
hires employees by paying salaries, wages or rewards
67
in other forms.
Article 1 of item 14
The accident was an accident that occurred in a sense that
is more widespread in the work environment or due to the disaster
the natural disaster Like a fire, an earthquake. Flooding and so on,
or as a result of social unrest and other forms of accidents
including accidents in attempted, working, traffic accidents
and so forth and the aftermath of the disease caused by the environment
work.
The inclusion and Iuran
Article 13 paragraph (1) letter a and b letter
1a. The government is obligated to data, identify and
enlist all Indonesian citizens as participants
the social security program.
1b. The employers are required to register themselves and their employees to
the social security organizer as a program participant
social security.
Article 14 of the paragraph (1) (1) The government lists the recipient of an iuran (facir) poor
and people who are unable to) to the Agency
A Social Security smuggler ".
Article 17 of the paragraph (1) letter a and letter b, paragraph (2), and paragraph (3)
(1a) The government sets out a tax rate for each citizen
country, to support the social security program if tax
is conventional and other state revenue is not yet
sufficient.
(1b) Any taxpayer must pay a large tax
specified by a percentage of the wages and its earnings
or a certain nominal amount.
(2) Any employers who meet the requirements, are mandatory
levied taxes from its workers and adding a tax that
became its obligation to the guardside of the warranty
social or designated tax officer.
68
(3) The tax rate referred to in paragraph (1) and paragraph (2)
is set for each program type to be periodically appropriate
with economic social development and basic needs
a viable life.
Health guarantee
Article 20 paragraph (1) (1) The health assurance participant is any Republican citizen
Indonesia, either capable or unable to pay
taxes, or whose taxes are paid by the government or employers
work.
Article 21 paragraph (1) and paragraph (2) (1) The health assurance Act remains in effect, if the participant
is experiencing a working relationship disconnect.
(2) In the event that participants are referred to by paragraph (1) have not yet
obtain work and cannot afford its taxes paid by
Government.
Article 27 paragraph (1), paragraph (2), paragraph (3), and paragraph (5) (1) The health of the health guarantee tax for the recipient of the wage
is determined based on the percentage of the wages up to the limit
specified, which is gradually borne co-workers
and employers.
(2) The health tax guarantee for participants who is not
receives a determined wage based on the nominally reviewed
on a regular basis.
(3) The warranty tax. health for the recipient of the iuran-based help
determined based on the specified nominally periodic.
(5) The taxes as referred to in paragraph (1), paragraph (2),
and paragraph (3), as well as the wage limit as referred to in the paragraph
(4) are set further in Government Regulation
Accident Guarantee
Article 29 paragraph (1) and paragraph (2) (1) The crash guarantee is held nationwide based on
the principle of social insurance/social assistance.
69
(2) The crash guarantee is held with the purpose of guaranking it
participants obtain health care and santunan benefits
cash if one has an accident in either accident
With the work or form-form
another crash.
Article 30 The crash warranty participant is any Republican citizen
Indonesia who already pays taxes for the capable or
his taxes paid by the government or the employers.
Article 31 of the paragraph (1) and the paragraph (2) (1) Accidents have the right to receive
health care benefits in accordance with the requirements
medical and benefit of cash if
total defects remain or die world. (2) The benefit of an accident guarantee that cash is given
at once to the heir of a person who died
or someone with a disability in accordance with the disabilitylevel.
Section 32 of the paragraph (1) and paragraph (3) (1) the crash guarantee crash as referred to in Article
31 paragraph (1) is given to a Government-owned health facility
or private that is eligible and established equal cooperation
with the Social Security Organizing Board.
(3). In the event of a accident occurs in an area of which no health facility is eligible, then in order to meet
the medical needs for the participant, the Warranty Host Agency
Social is required to provide compensation.
Section 34 paragraph (1), paragraph (2), and paragraph (3) (1) (1) the tax guarantee of an accident is as large as the percentage
of the wages or earnings covered in all
by the employers.
(2) The Bess tax guarantee of work work for participants who do not receive wages is the amount The nominal value specified
periodically by the Government.
(3) The price tax as referred to paragraph (1) varies
70
for any group of workers according to the environmental risk
work.
Warranty of the Old Days
Article 35 paragraph (1) and paragraph (2) (1) Old day warranties are held nationwide based on
the principle of social insurance or social assistance.
(2) Old day Guarantee is organized with goal to guarantee
in order for participants to receive cash every month if entering
age advanced or experiencing a total disability fixed.
Article 36
The parent-day assurance participant is every Republican citizen
Indonesia who already paid taxes for the taxable or
taxes paid for by Government.
Article 37 paragraph (1) and paragraph (2)
(1) the benefit of an old day guarantee of cash is paid any
the month at the time the participant enters the advanced or experienced
total defects remain according to Laws.
(2) The benefit of an old-day guarantee of cash
is specified each month is determined based on the need
at least for a living worthy of considering the constriction
of the tax payment concerned or any other consideration in accordance with the laws
Article 38 paragraph (2)
(4) The tax parental tax day for participants who is not
receives a specified wage based on number nominal that
is set periodically by the Government.
4. Or, Requesting a ruling that is as fair as the mandate
the constitution, if the Court has opinions and other rulings that
is more arable and prudent.
5. Ordering a loading of this verdict in state news as
should be.
71
[2.2] weighed that in order to prove its control, the applicant
submitted the evidence letter/writing tool that has been given a Proof of P-1 until
with the Proof P-2 as follows:
1. Proof P-1: Photocopies of the identity of the applicant are KTP, Family Cards,
The Decree of the Board of the Chairman of the Indonesian Ulama Assembly
East Java Province KEP-58/MUI/JTM/XI/2009 on
The Strengthening Of The Council's Board Of The Cleric Council
Indonesia Regency Jember Masa Khidmat 2009-2012,
dated November 24, 2009, and its Lamps, Akta quote
Notary regarding the Establishment of the At Taqwa Foundation, date 15
July 2007, Decree of Departamen Law and Human Rights
regarding The Founding Concern Of The At Taqwa Foundation
Bondowoso, dated December 10, 2007, Decision Letter
Number 31.78/08.006/YDS/ SK.I. I/III/2007, dated 01 March
2007, Letter of Attraction, Chairman's Decision Letter
Islamic Education Foundation Darus Sholah Number
045 /YPI.DS/N/IX/ 2003 about the Rapture of the Ministry of Education Principal
SMU Flagship Darus Sholah Tegal Huge Jember, dated 01
August 2003, Rekapitulation Honorarium Dosen (PAI) Month
April 2011 Faculty of Islamic Religious University Jember
Semester IV (Morning) Year 2010-2011, April 29, 2011,
Task Letters, Active Attraction Letters Implement
The Task, and Decision of the Governor of East Java Number
171.429/35/011/2009 on the Opening of the Pit Stop and
The inauguration of the Replacement Appointment Between The Members
The District Of The County People's Representative Council. A lot of perfumed;
2. Evidence P-2: Photocopied Act No. 40 of 2004 on
National Social Security System, Basic Law
The Republic of Indonesia in 1945;
[2.3] weighed that in order to shorten the description in this ruling,
then everything that is indicated in the news of the trial event has been contained
and is an inseparable part of this ruling;
72
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicability of the applicant
is to test the constitutionality of the section, paragraph and phrase in Article 1 of item 3, item
12, item 14, Article 13, Article 14, Explanation of Article 14, Section 17 of the paragraph (1), paragraph (2),
paragraph (3), and paragraph (5), Section 20 of the paragraph (1) and paragraph (3), Section 21 (1) and paragraph
(2), Section 27 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (5), Section 28 of the paragraph (1), section 29
paragraph (1) and paragraph (2), Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, Section 2, 30, Section 31 of the paragraph (1) and paragraph (2), Section 32 of the paragraph (1)
and paragraph (3), Article 34 of the paragraph (1), paragraph (2), and paragraph (3), Section 35 verse (1) and paragraph
(2), Section 36, Section 37 of the paragraph (1) and paragraph (2), as well as Article 38 of the paragraph (1) and paragraph (2)
Act No. 40 of the Year 2004 on the National Social Security System
(Indonesian Republic of 2004) Number 150, Supplement
A sheet of State of the Republic of Indonesia No. 4456, subsequently called the Act
40/2004) against Article 28A, Article 28B paragraph (2), Article 28D paragraph (1), Article 28H
paragraph (1), paragraph (2), and paragraph (3), Article 28I, paragraph (2), and paragraph (2), paragraph (2), paragraph (2), paragraph (2), paragraph (2), paragraph (2), paragraph (4), as well as Article 34 of the paragraph
paragraph (1), paragraph (2), and paragraph (3) of the Basic Law of the State of the Republic of Indonesia
in 1945 (later called the 1945 Constitution);
[3.2] weighed that before considering the subject,
The Constitutional Court (later called the Court) would consider
in advance of the following:
A. The Court's authority to prosecute a quo;
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) of the 1945 Constitution, Article 10
paragraph (1) Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of the Year 2011 on
Changes to the Law No. 24 of 2003 on the Court
Constitution (sheet Of State Of The Republic Of Indonesia Year 2011 Number 70,
Additional Sheet Of State Republic of Indonesia Number 5226, called
Act MK), Article 29 paragraph (1) letter a Law No. 48 Year 2009 on
Justice Power (Indonesian Republic of the Republic of 2009 Number
73
157, Additional Gazette Republic of Indonesia Number 5076), one
Constitutional authority of the Court is testing the Act against
The Basic Law;
[3.4] Draws that the plea of the The applicant is about
testing the in casu Act Act 40/2004 against the Constitution of 1945, so
The court of law for prosecuting a quo;
Legal standing (legal standing) the applicant
[3.5] Draw that under Article 51 of the paragraph (1) MK Act and
The explanation, which may act as a petitioner in testing an
Act against the Constitution of 1945 is those who consider the right
and/or its constitutional authority to be harmed by the enactment of the Invite-
Invite The test is being used, which 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 rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the legislation
testing;
That the applicant in the plea a quo qualifying itself. as
individuals of Indonesian nationals (including groups of people who have
interests are equal), so under Article 51 of the paragraph (1) the MK bill
The applicant may apply for testing the a quo against the Constitution
1945;
74
[3.6] It is balanced that in addition to qualifying as such
above, the applicant must also outline clearly about the right
and/or its constitutional authority being harmed by the Invitation-
Invite to the test.
III/ 2005, dated 31 May 2005 and Putermination Number 11 /PUU-V/2007, dated
September 20, 2007, and subsequent rulings have established that
rights losses and/or authority The constitutionality of the Constitution (1) of the Act of Law must meet five terms:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or the constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific and actual or at least a potential that according to reasoning
which is reasonable is certain to occur;
d. Due (causal verband) relationship between losses referred to
by the enactment of the testing Act;
e. It is possible that with the request of a request, then
the rights and/or rights loss and/or constitutional authority as indicated
will or shall no longer occur;
[3.7] Draw that the Petitioners in the a quo
considers its constitutional right to be harmed by the entry of the section, paragraph, and
the phrase in the 40/2004 Act:
Article 1 of item 3 on the phrase "fundraiser" and the phrase "participants", Section 1 items 12 on the "country" phrase, as well as Section 1 item 14 on the phrase "work" and the phrase "in working relationships including, accidents occurring on the way from home to work or vice versa";
Section 13 of the paragraph (1) on the phrase "gradually", and the phrase " in accordance with the social security program followed ";
Section 14 and Explanation of Article 14 of the phrase at " gradually ";
Section 17 of the paragraph (1) of the phrase " mandatory participants pay dues ", paragraph (2) of the phrase " shall collect the dues " and the phrase " adds iuran ", paragraph (3) the phrase " iuran ", as well paragraph (5) the phrase " at the stage first ";
75
Section 20 of the paragraph (1) of the phrase "which has paid the dues or its dues paid by the government";
Section 20 paragraph (3): " Each participant may include another member of the family to be a liability to the other. addition of iuran ";
Article 21 paragraph (1) on the phrase " longest six months since ", paragraph (2) the phrase" after six months " and the phrase " iuran ";
Section 27 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (5) the phrase "iuran";
Article 28 paragraph (1): "Workers who have a family member of more than 5 (five) people and want to include family members who are required to pay an additional dues";
Article 29 paragraph (1) on the phrase "work"and paragraph (2) on the phrase "work", the phrase "workers", as well as the phrase "or suffer from work";
Section 30 on the phrase "work is a prepaid";
Section 31 of the paragraph (1) on the phrase "work" and paragraph (2) the phrase "work" as well as the "worker who";
Article 32 paragraph (1) and paragraph (3) of the phrase "work";
Article 34 paragraph (1) in the phrase "iuran" and the phrase "work", paragraph (2) and paragraph (3) of the phrase "iuran";
Section 35 of the paragraph (1) on the phrase "or the mandatory savings", paragraph (2) of the term "retirement" and the phrase "or die of the world";
Article 36 on the phrase "participants who have paid dues";
Section 37 of the paragraph (1) on the phrase "at once" and the phrase "retired, died", paragraph (2) the phrase " all the accumulation of the iuran which has been added to the development of its development ";
Article 7 of the paragraph (3): "The payment of an old day guarantee benefit may be given a portion to a certain extent after the dispute reaches a minimum of 10 (ten) years";
Article 38 paragraph (1): " The value of an old day's warranty for the recipient of a wage recipient is set. based on certain percentages of certain wages or income borne out together by employers and workers ";
Article 38 of the paragraph (2) of the phrase " iuran ";
The explanation of the Law 40/2004 phrase " the informal sector can be voluntary participants ";
76
According to the Applicant section, paragraph, and phrase in the a quo
cause the petitioners do not obtain a social security guarantee
health, pension guarantee, job accident guarantee, bail old days, and
the guarantee of death, as well as other guarantees mandated by the constitution, in terms of
bail for a viable life, guarantee of residence, assurances obtained
a decent public facility, because someone to acquire the warranties
the social must register/be registered and Pay or
paid for it. Based on the applicant ' s postulate, the Court
argues there is a loss of the applicant and the causal link (causal
verband) between the loss of the applicant with the enactment of the a Act
quo. The applicant ' s constitutional loss is potential that
according to reasonable reasoning can be certain to occur, and the existence of
likely with the application of the application, then the constitutional loss
para The applicant will not or may no longer occur. As such, the applicant
has a legal position to apply for testing the section in the Invite-
Invite a quo;
[3.8] It is balanced that by the court of prosecuting
a plea quo, as well as the The applicant has a legal standing (legal
standing), then the next Court will consider the subject
plea;
subject to
[3.9] weigh that the applicant is in principal His application
submitted the testing of the constitutionality of the phrase in the section/paragraph of the Act 40/2004,
that is:
Frasa "fundraiser" and the "participants" phrase contained in Article 1 of item 3 of the a quo contradictory to Article 28H paragraph (3) and
Article 34 of the paragraph (2) of the 1945 Constitution of the The meaning of social security cannot
reach out to all citizens;
The "country" contained in Article 1 of item 12 of the a quo in conflict with Article 28D of the paragraph (1), Article 28H paragraph (3), Article 28I verse
(2) and paragraph (4) of the 1945 Constitution, to the extent the country's organizer only
guarantees Social security for civil servants alone and ignoring employees.
77
honorer, non-permanent employees, and non-status village apparatus as
civil servants;
Frasa "work" and the phrase " in the working relationship, including accidents that occur in the working relationship, including an accident that occurred on the way from home to work or vice versa " contained in Article 1 of item 14 of the a quo contradictory to
Article 28H paragraph (3) and Article 34 of the paragraph (2) of the 1945 Constitution, for the length of That
getting an accident guarantee is just a working accident,
while other accidents that are not caused by a work accident
do not get an accident guarantee;
Frasa "gradually" and the phrase "in accordance with the social security program that followed" is contained in Section 13 of the paragraph (1) of the a quo Act is contrary to Article 28D of the paragraph (1) and Article 28H paragraph (3) of the Constitution
1945, to the extent that the employers are procrastised to register
the worker as a recipient of social security and the giver of the law. work can choose
a portion of the social security program that will be followed;
• The phrase "gradually" contained in Section 14 of the paragraph (1) and the explanation of Article 14 of the paragraph (1), as well as the "at the first stage" contained in Article 17 of the paragraph (5) of the a quo in conflict with the Article
28D paragraph (1), Article 28H paragraph (3), Article 28I paragraph (4), as well as Article 34 of the paragraph (1)
and paragraph (2), Constitution of 1945, as long as the government registers
and is paid for the poor facir dues that are not able to guarantee
health alone, whereas other social security programs are not specified
when the government will register and repaid the file;
Frasa "participants are required to pay dues" contained in Article 17 of the paragraph (1), the phrase "must collect the dues" and the phrase "add the dues" contained in Article 17 of the paragraph (2), and the "iuran" phrase contained in Section 17 of the paragraph (3) of the Act a quo in conflict with Article 28D of the paragraph (1)
Constitution of 1945, to the extent that the dues are voluntary i.e. there is no
the obligation to any person/coworker to Pay the dues. By
as it is according to the Applicant Phrase "iuran" in section a
quo must be replaced by the "tax" phrase required to the employers;
Frasa " which has paid the dues or its dues paid for by the Government " contained in Article 20 paragraph (1) of the a quo Act
78
contrary to Section 28H paragraph (1) and Article 34 of the paragraph (3) of the Constitution of 1945
to the meaning of the entitled to a health guarantee is only
those who pay or are the dues paid by the government;
Article 20 paragraph (3) of the a quo Act contradictory to Article 28D paragraph
(1) The Constitution of 1945 to the extent that there is no obligation to
include other members of the family who are the dependents
in social security program;
Frasa "longest 6 (six) months since" the one that fits in Article 21 paragraph (1) and the phrase "after 6 (six) months", as well as the "ilah" phrase contained in Article 21 of the paragraph (2) of the Act a quo contradictory to the Article
28H paragraph (1) of the 1945 Constitution to the extent of the warranty participant health only
valid six months for the participants who experience the
working relationship;
Frasa "iuran" contained in Section 27 paragraph (1), paragraph (2), paragraph (3), and paragraph (5) of the a quo contrary to Article 28D clause (1) of the Constitution
1945 to the meaning of voluntary donation, because it would
eliminate the rights of Indonesian citizens to obtain a guarantee
health;
Article 28 paragraph (1) the a quo Act contradictory to Article 28D paragraph
(1), Article 28H paragraph (1) of the Constitution 1945 to mean family members of
workers who are guaranteed to get a health guarantee of only five, whereas the sixth, seventh and
family members there is no legal certainty for the get a guarantee
health;
Frasa "work" contained in Section 29 verses (1), the phrase "work", the phrase "worker" and the phrase "or suffer the disease" contained in Article 29 of the paragraph (2) Act a quo in conflict with Article 28H (1) and verse (2), as well as 28I verse (2), UUD 1945 for ignoring the types
accidents and other disasters not caused by work accidents;
Frasa "work is someone who has paid dues" that is contained in Section 30, the phrase "work" fit in Section 31 of the paragraph (1), the "work" and the phrase "worker" fit in Article 31 of the paragraph (2), the "work" phrase contained in Section 32 of the paragraph (1) and paragraph (3), the phrase "iuran" and the phrase "work" contained in Article 34 of the paragraph (1) and paragraph (2), as well as the phrase
79
"iuran" contained in Article 34 of the paragraph (3) of the Act a quo in conflict with Article 28D of the paragraph (1), Article 28H paragraph (1), and paragraph (2)
Constitution of 1945 throughout the phrase "work" in the Act a quo
means those who obtain health insurance and money benefits
cash is those who have a working accident alone, and the phrase "iuran"
in section a quo contradiction with the 1945 Constitution
all such dues are defined only as voluntary;
Frasa " or savings mandatory " in Section 35 paragraph (1) Invite-Invite a quo in conflict with Section 28B paragraph (2), Section 28H paragraph (1),
and Article 28I paragraph (4) of the 1945 Constitution to the extent defined as form
savings or savings owned by the participant and may be taken on
when people are already entering the advanced age;
Frasa "retirees" and the phrase "or die" contained in Article 35 of the paragraph (2) the a quo Act is contrary to Article 28D paragraph
(1) The Constitution of 1945 to the extent of the meaning of an old day's warranty.
are those who entered the age of retirement or died. The phrase
thus does not guarantee the rights of any person working in the informal sector,
the formal sector of the non-profit and poor facir and the people unable to
to obtain an old day guarantee in order to preserve the survival and
well-being in an advanced age;
Frasa "participants who have paid dues" contained in Article 36 of the a quo Act in conflict with Section 28D paragraph (1), Section 28I
paragraph (2) and paragraph (4) 1945 because it does not guarantee the fulfilment of the right to
obtain an old day guarantee and is Discrimination against people
working in informal, formal non-profit and non-profit people
capable;
Frasa "at once", the phrase "retirees, dies" contained in Article 37 of the paragraph (1), and "all accumulated dues that have been added to the results" contained in Article 37 of the paragraph (2) of the Act a quo in conflict with Article 28A, Section 28B
paragraph (2), and Article 28H paragraph (1) of the 1945 Constitution along the meaning of the participants only
will get an old day guarantee of all accumulated iuran that has been
provided with the result of its development upon entering retirement
or died;
80
Article 37 paragraph (3) of the a quo Act contradictory to Article 28H paragraph
(3) The 1945 Constitution of the year is defined as the people who are already aged not
entitled to the social security of the while Membership as
An old day warranty participant has not reached the age of ten years since the invitation-
This invite was enacted;
Article 38 of the paragraph (1) is contrary to Article 28I paragraph (2) of the 1945 Constitution because
discrimination with the recipient of a retired wage recipient;
Frasa "iuran" contained in Article 38 paragraph paragraph (2) The a quo Act is contrary to Article 28D of the paragraph (1) and Article 28H paragraph (3) of the Constitution
1945 to the extent that the old day guarantees are reserved only
to those who have paid dues;
Frasa " sector informal may be voluntary participants " contained in the Explanation of the a quo Act contrary to the Article
28H paragraph (3) and Article 34 of the paragraph (2) of the 1945 Constitution for the meaning of workers
informally, such as teachers and Private lecturers, kyai, ustad, pastures, priests,
pedande, monks, farmers, merchants, farmworkers, fishermen, coolies building, waiters
stores, TKI, TKW, poor fakir does not automatically get bail
social;
The petitioners are begging the court to formulate the article, paragraph,
and the phrase in the a quo Act changed according to the formula
made by the petitioners. As for the formula, paragraph and phrase
submitted by the PETITIONERS may be read in the plea;
Court opinion
[3.10] Draw that before considering the subject matter,
The court needs to cite Article 54 of the MK Act stating, " The Court
The Constitution may request the captions and/or meeting treatises to the
with the application being examined to the Consultative Assembly
People, DPR, Representative Council Area, and/or President " in performing
testing of a Act. In other words, the Court may
request or not to request the captions and/or meeting treatises in respect of
with the application being checked out to the Consultative Assembly
People, House of Representatives, Council The Regional Representative, and/or the President,
depends on the urgency and relevance. Due to legal problems
81
in the a quo application is clear, the Court sees no urgency
and its relevance for asking for the description and/or meeting treatises of the Assembly
Consultative People, House of Representatives, Council The Regional Representative,
and/or the President, so that the Court directly dismay a quo;
[3.11] Draw that after the Court examined with the witness
the applicant ' s plea, and the evidence of the letter/writing submitted by para
The Court of Justice argued as follows:
That the applicant in the a quo request largely submitted the testing of the phrase in section/paragraph 40/2004 as outlined
above. The petitioners in the application of the phrase test in section/verse
The a quo do not elaborate on the obvious reason for the tentative reason
with the 1945 Constitution, but only describes the reason for the phrase "paragraph".
within The a quo Act which is being honed is interpreted as appropriate
the wishes of the petitioners. The vagueness of the applicant ' s plea
among others lies in the formulation of the section/the replacement verse proposed by the
applicant. In this case the petitioners apply for constitutionality testing
for the phrase in section/paragraph a quo, but in the rationale
the supplicant and the petitioners beg for the Court to make
the formula a replacement as formulated by the applicant.
The court assesses between the phrase which is mohoned testing and dalil-dalil
the application is not related and illogical between posita and petitum. If
an application of the constitutionality testing of a particular phrase then the
The applicant should only be begging to cancel the phrase
on the test of the test. The phrase or other legal norm that is contained in
section/verse that the applicant does not seek must remain
is declared constitutional and applicable. The Court in the Invite-
Invite against the Constitution of 1945 does not have the authority to formulate
the norm of article/verse in an Act due to the formulation of the section/paragraph
an Act is the authority of the building Law.
Based on those considerations, the Court assesates the
The applicant does not meet the provisions of Section 31 and Section 51A of the paragraph (2) of the MK Act,
that is not deciphing clearly and detailed on what is the basis
82
pleas and things are required to be broken up, so that the request
The applicant is blurred (obscuur) and must be declared unacceptable;
[3.12] It is balanced that regardless of consideration in the Above, however
The applicant is aggrieved by the enactment of the law
40/2004 due to obtaining a health guarantee, pension guarantee, guarantee
work accident, parental assurance, and the guarantee of death, as well as social security
another person must register/be registered, must pay or
paid its dues [vide Plea of the applicant page 13], the Court
argues the provisions relating to it have been assessed and
being disconnected by the Court among others in the Number of Numbers 50 /PUU-VIII/2010,
dated 21 November 2011 and 51 /PUU-IX/2011, dated 14 August 2012;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court is authorized to prosecute the applicant's plea;
[4.2] The applicant has legal standing (legal standing) to
apply a quo;
[4.3] Requests are unclear or blurred;
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as Amended by Act No. 8 of 2011 on
Changes to the Law No. 24 of 2003 on the Court
Constitution (Gazette of State of the Republic of Indonesia 2011 Number 70,
Additional Gazette Republic of the Republic of Indonesia Indonesia Number 5226), and Invite-
Invite Number 48 Of 2009 On The Power Of Justice (State Sheet
The Republic Of Indonesia 2009 Number 157, Additional Sheet Of State
Republic Indonesia Number 5076);
83
5. AMAR RULING
Prosecuting,
Declaring the applicant is unacceptable;
So it was decided in a Meeting of Judges by nine
The judge of the Constitution, the Moh. Mahfud MD as the Chief of the Members,
Achmad Sodiki, Hamdan Zoelva, Ahmad Fadlil Sumadi, Anwar Usman, Harjono,
Maria Farida Indrati, Muhammad Alim, and M. Akil Mochtar, respectively
as Members, at on Monday, respectively. The seventeen, September, year two thousand twelve, and pronounced in the plenary session of the Constitutional Court were open to the public at Tuesday, twenty-fifth, September, year two thousand twelve, by the nine Judges Constitution, that is Moh. Mahfud MD as Chairman, Achmad Sodiki, Hamdan
Zoelva, Ahmad Fadlil Sumadi, Anwar Usman, Harjono, Muhammad Alim, Maria
Farida Indrati, and M. Akil Mochtar, respectively as Members, were accompanied
by Sunardi as a replacement Panitera, as well as attended by the
the applicant, the Government or the representing, and the House of Representatives
The people or the people representing.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Hamdan Zoelva
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
84
ttd.
Harjono
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
M. Akil Mochtar
PANITERA REPLACEMENT,
ttd.
Sunardi
