Key Benefits:
VERDICT Number 14 /PUU-X/2012
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF INDONESIA
[1.1] PROSECUTING CONSTITUTIONAL CASES ON A LEVEL first and last,
dropping the ruling in the Test case Act No. 1 of the Year
2011 on Housing and Settlement Areas against the Act
The Basic State of the Republic of Indonesia of 1945, which was put forward by:
[1.2] Board Of The Board Of The Association Of Housing Developers And Settlements All Indonesia (DPP APERSI) represented by:
1. Name: Ir. Eddy Ganefo, MM
Title: Chairperson of DPP APERSI
Address: Waskita Building Works, X/Kav Sea Blue Road. 10-A, Floor 1, Cawang, Jakarta
2. Name: Ir. Anton R. Santoso, MBA
Title: Secretary General of DPP APERSI
Address: Our Waskita Building, X/Kav Sea Blue Road. 10-A, 1st Floor, Cawang, Jakarta
In this case based on Special Power Letter without January 2012
gives power to Muhammad Joni, S.H., M.H., Ariffani Abdullah, S.H., Batara Mulia Hasibuan, S.H., Zulhaina Tanamas, S.H., Muhammad Fadli Nst., S.H., M.H., and Mieke Mariana Siregar, S.H., advocate and Legal Consultant at LAW OFFICE JONI & TANAMAS, which addresses the Graha Fund Building,
Suite 301-302, Road Gondangdia Small Number 12-14, Menteng, Central Jakarta,
act for and over power name;
Next is called as ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Government written information;
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Hearing and reading the Representative Council's written
People;
Hearing the experts as well as the petitioners and
Government;
Check the Applicant and the Evidence Government;
Read the conclusions of the applicant and the Government.
2. SITTING LAWSUIT
[2.1] Ruling that the applicant has submitted this undated application
January 24, 2012 which was accepted in the Constitution of the Constitutional Court (subsequently
called the Court of Justice) on 24 January 2012 based on
The Deed Receipt of the Request File Number 39 /PAN.MK/ 2012 and noted in
The Constitutional Case Registration Book with No. 14 /PUU-X/2012 on the 1st
February 2012, which has been corrected and received in Kepaniteraan. The Court on
dated February 21, 2012, outlines the things as follows:
I. About the Background filing The applicant is an association of housing developers and
settlements for low-income community groups (MBR), which
factually and real has built up housing For MBR. In addition
juridis-formyl, Act Number 1 of 2011 recognizes existence
and roles as well as society including perpetrators of effort to participate in
housing development, which is not a constitutional right which
is guaranteed in Article 28H paragraph (1) of the Constitution of 1945, as is the right
human rights (human rights) guaranteed in Article 40 of Law No. 39
In 1999 on Human Rights ("Act 39/1999").
On the other hand the home needs as a residence has not been met for
the entire Indonesian people, because the price is not affordable by purchasing power and
low income in particular MBR groups, and citizen groups
Poor people. Based on the last BPS data, the population
was poor in September 2011 of 29.89 million people or 12.36%
(vide Central Bureau of Statistics, "The Monthly Report of Economic Social Data", Issue 20, January 2012, hal.101). In addition, the population is almost poor
estimated to be 27 million people.
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By juridically formyl mandated Section 54 paragraph (1) Invite-
Invite Number 1 Year 2011, the Government is required to meet the needs of the home
for the MBR group, with all forms facilities and subsidies that
prepared, then surely there should not be any obstacles in achievement
housing development for the MBR group.
On the other hand, backlog or high housing deficit reached 13.7 million, and
continues to increase its accumulation and escalacations from year to year.
Unwillingness in meeting the home needs for a decade
Last, and increased number of non-home households,
as well as the issue of the 2009 data-based slum
of 57,800 hectares, so the People's Housing Ministry assessed
Indonesia being in a residential emergency so it is needed
government intervention (Indonesian business vide, "Indonesia in residential emergency", 13 December 2011). Injustice in housing development was proposed by Zulfie Syarif Koto,
former officials of the Ministry of People's Housing, based on data and
facts concluded: " ...the building of the people's housing is up to a long journey of 65 In Indonesia's independence, it was still more enjoyed by the upper middle society". (vide Zulfi Syarif Koto, "Politics of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, matter. 48).
However in the presence of Article 22 paragraph (3) Act No. 1 of 2011
that makes a broad boundary of the single home floor and the home of a minimum series of 36
square meters, which are applied to each person and each region
same and no different. This norm inhibits the fulfillment of home rights
as a place to stay by due to the growing higher price
home and unaffordable purchasing power of MBR groups, including and especially
about 58 million poor residents and almost poor in Indonesia.
Terms of Article 22 paragraph (3) Act No. 1 of 2011 to
causal is the fulfillment of the fulfilment of the constitutional rights over the house, therefore:
The main and major severity is currently still around 57 million residents
poor and almost poor including an MBR group in need
home;
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still the marginal group inhabiting the residence is not
humane;
The modest home price rise is higher than the revenue increase;
the broad density of the land is narrow and continue to be expensive so that home prices
be expensive;
the stagnant MBR purchasing power but home prices are rising (let alone
with a floor area of 36 square meters) so that the group is unaffordable
MBR;
creating a domino effect that inhibits the publishing of Permits Establishing
buildings (IMB), and all housing subsidy or financing facilities;
resistance to the target of housing enlarging achievement for MBR;
cannot be prepared a PPN-free facility for MBR;
triggers a backlog escalation or housing deficit;
triggering the widespread slums of slums;
shrinking the fulfillment of human rights over the house, and
breaking the constitutional right to acquire a home.
let alone the available financing facilities such as the Liquidity Facility
Housing financing (FLPP) cannot reach out to the entire MBR group.
FLPP is governed under the Regulation of the Minister of Finance (PMK) Number
130 /PMK.05/ 2010 on the Tata Way Supplies, Waters and
Accouncability of the Housing Financing Facility Housing.
Before the suspension of the skim The FLPP, which is given to the MBR group
is an advance subsidy and subsidised interest rate. With the presence of skim
FLPP, which is sourced from the People's Housing Ministry budget post
which originally was a shopping budget post that was diverted into a post
financing (vide Kompas.com, "FLPP would save Rp. 21. Trillion", 26 October 2010).
Kendatipun is available FLPP, but could not accommodate the price escalation
buy house units because the structure and price components will increase after
the presence of a minimum floor provision of the 36 square meters is in effect.
Assuming the FLPP as a financing post then is not consistent with
Government obligations in Article 54 paragraph (1) Act Number 1 Year
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2011. It should be used for the MBR group to be subsidised not
financing.
Thus, the provisions of Article 22 paragraph (3) of Act No. 1 of the Year
2011 it is a causal of the right of any person or
society in particular the MBR group to obtain constitutional rights
over Home as a residence. It is not surprising that the media
voiced the interests of the small people or MBR groups, as
Gatra magazine wrote, "People are Forbidden To Have Home" (vide Gatra, No. 10 Issue 12-18 January 2012 thing. 32-33).
While the need for cheap homes and houses with type 21 (two
twenty-one) square meters which are home grown and can be
developed, it is still a real need and as capable of
MBR group.
Some reason why the 21-meter-type requirement is still actual and
objective, therefore, among other things:
The power limitations of the MBR buy;
new family/pair needs are not type 36 but type 21;
wide The floor is still in accordance with the Simple Healthy Home Technical Guidelines.
(Rs. Sehat/RSH);
It is still very much needed for the market and enlarging the chances of meeting
home needs;
inhibit the widespread slums of slums;
decreases backlog or housing deficit;
regulations that pro poor and supporting a low-cost home program;
MBR groups can access both PPN and FLPP free facilities (because
house prices are no more Rp. 70 million and floor area no more than 36 square meters);
relevant to overcoming land scarcity
construction index
construction;
per aspiration and the needs of the poor people acquire a cheap home;
can still be developed as it is home to grow (whereas
stacking home is not a growing house);
In accordance with the provisions regarding Government obligations meeting
home for MBR [Article 54 verse (1) Act Number 1 Year 2011];
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agrees with human rights to acquire a home in the Covenant
International on EKOPAL, and the Universal Declaration of Rights
Humans (DUHAM).
If a single house and a series house with a floor area below 36
square meters are prohibited, then this creates a loss
the constitutional society of the public is therefore reasoned if done
testing Constitutionality of Article 22 (3) of the Law No. 1
In 2011 with the 1945 Constitution of the Constitution (1),
Article 28H paragraph (4), Article 27 of the paragraph (1), and Article 28D of the paragraph (1).
II. The authority of the Constitutional Court and the Occupation of Law (Legal Standing) of the applicant A. On the authority of the constitutional court.
1. That the petitioner pleads for the Constitutional Court
("The Court") receive a plea and establish a trial that examines, prosecute, and commits a trial plea
testing of material provisions of the Housing and Area Act
Settlement of Section 22 paragraph (3) Act No. 1 Year
2011 that reads, "Single home floor and series house has
at least 36 (thirty-six) square meters" against
The Basic Law of the Republic of Indonesia in 1945 (" next
called "UUD 1945") Article 28H verse (1), Article 28H paragraph (4), Article 27 paragraph (1) and Article 28D paragraph (1) of the Constitution of 1945.
2. That under Article 24C paragraph (1) of the Constitution of 1945 juncto Article 10 of the paragraph
(1) the letter of the Law No. 24 of 2003 on the Court
Constitution ("Act 24/2003") , stating that: "The Constitutional Court is authorized to prosecute at the first level and
last, whose verdict is final to test the Act
against the Basic Law, severing the dispute of authority
state agencies granted by the Basic Law, disconnect
dissolution of the political party, and severing disputes about results
general elections ";
3. That under the terms of Article 24 of the paragraph (2) of the 1945 Constitution which states the powers of the judiciary is conducted by the Supreme Court and
the judicial body under which the Constitutional Court is under the Constitutional Court;
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4. That Article 28H paragraph (1) of the 1945 Constitution reads as follows: "Everyone is entitled to a prosperous life born and inner, residence,
and get a good and healthy life environment and entitled
health care.".
Related to that, Article 28H paragraph (4) UUD 1945 reads as
following" Everyone has the right to have personal property and property rights
it must not be taken arbitrarily by anyone";
Thus clearly the right to residence, as well as rights
has Private property is a guaranteed constitutional right
in the 1945 Constitution.
5. That under the provisions of Act No. 12 of 2011
governs that the hierarchy of the Constitution of the Constitution of 1945
is higher than the Act, by hence any provision
The Act should not be Contrary to the 1945 Constitution. Thus, if there is a provision in the Act that
contradictory to the 1945 Constitution then the provision may be
is being asked to be tested through the Undang-Undang;
6 testing mechanism. That is, based on the above, the Constitutional Court
authorized to examine and prosecute testing applications
The Act No. 1 of 2011 is referred to in the number 1 above,
against the Constitution of 1945 Article 28H paragraph (1), Article 28H paragraph (4), Article 27 paragraph
(1) and Article 28D paragraph (1) of the Constitution of 1945.
B. About Legal Standing (Legal Standing) and the Constitutional Interests of the Applicant. 1. That under the provisions of Article 51 of the paragraph (1) Act 24/2003
mentions that:
The applicant is the underlying rights and/or
the authority of its constitutionality is harmed by the enactment of the Invite-
Invite, i.e.:
a. Individual citizens of Indonesia;
b. the unity of the indigenous law society as long as it is alive and
in accordance with the development of the state and the principle of the State
The Unity of the Republic of Indonesia which is governed in the Undang;
c. the public or private legal entity; or
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d. state agencies;
2. That is, based on The explanation of Article 51 of the paragraph (1) of the 24/2003 Act of 2003 implies that the "right
constitutional" is the rights set forth in the Act
The Basic State of the Republic of Indonesia in 1945;
3. That the explanation of Article 51 of the paragraph (1) of the 24/2003 Act does not govern
regarding constitutional authority. But with
analyzing it with the definition of constitutional rights then it can
it is concluded that the right
constitutional authority is the authority set up in the 1945 Constitution;
4. That under the terms of the above, then there are 2 (two) terms
that must be met to test whether the applicant has
legal standing (legal standing) in the case of the Invite-
Invite, which is composed of terms as follows:
a. satisfy the qualification to act as the applicant
as described in the provisions of Article 51 of the paragraph (1) Act
24/2003;
b. The permissions and/or constitutional authority of the applicant
aggrieved by the enactment of the provisions of the Undang;
c. for the next detailed discussion of legal
standing The applicant will be deciphed under this.
B. 1. Legal Standing Pemapplicant 1. That the applicant is a legal entity established according to
the laws of Indonesia were established on November 10, 1998 in Jakarta
on the basis of the shared vision of the developers whose field of business is
a type in the development effort Simple
simple
housing, and then makes the organization a means
for the aspiration of aspiration and to fight for the benefit of the
medium and small developers in order to get the attention
proportional to the Government, which addresses and resides
laws in the Waskita Building Work, Jalan MT Haryono Kav.10 Cawang,
East Jakarta 13340, in this case is represented by the anointing of the Ir.
Eddy Ganefo, MM as General Chairman, and Ir. Anton R. Santoso,
MBA., as Secretary General acting for and on behalf of
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Housing developers and the entire Indonesiic Settlement
("APERSI") [vide, Evidence P-1]; 2. That the applicant has a recognized role in the Invite-
Invite Number 1 Year 2011 as part of the stakeholder
interest or stakeholder housing development and
the settlement in particular against low-income communities
(MBR) which is an important part of the underlying policy and norms
laws that are set in Act Number 1 of 2011;
3. That the applicant is running a residential development mission
the people are simple/very simple houses have
working real and building institutional effectively with
the presence of the Regional Board of Governing Council (DPD) APERSI which is spread and
has 22 (twenty-two) DPD APERSI provincial level all over
Indonesia, with the number of members in 2009 alone as much
1,387 residential and residential developer companies, with
Profile APERSI as follows [Evidence P-3]: (a) APERSI development
In The 12 (twelve) trip of the year, and as of
with the growth of the national economy starting
improving, as well as the more conducive security and politics,
enables the APERSI to be slow and certain. performing
organizational development.
Period 1998-2003. From the establishment of APERSI to MUNAS I APERSI, on
dated 9 to 10 June 2003, it can be formed 9 (nine)
Regional Board of Governing Council (DPD) APERSI, namely:
1) DPD APERSI Province of Jakarta,
2) DPD APERSI West Java Province,
3) DPD APERSI Central Java Province
4) DPD APERSI East Java Province,
5) DPD APERSI South Sulawesi Province,
6) DPD APERSI North Sulawesi Province,
7) DPD APERSI Province of South Sumatra,
8) DPD APERSI Jambi Province,
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9) DPD APERSI Banten Province.
The number of Members at that time was only about 373 developers,
but due to the economic crisis, many of the developers were
dead suri. Thus the number of active members is recorded as only about 60
developers. In MUNAS-I APERSI, it has been agreed to
to reposition the organization in accordance with the Act
Number 4 of 1992 on Housing and Settlement
by adjusting the APERSI name of the abbreviation Association
Simple and Very Home Developers Simple
Indonesia being Housing Developers Association and
Settlement of All Indonesia.
2003-2006 Period While it is in In progress until the end of the termfilial piety DPP APERSI 2003 s.d 2006, addition
the number of members through the establishment of APERSI in the Province area
continues to increase. Addition of the new DPD APERSI DPD in
in sequential provinces are:
1) DPD APERSI Province of West Sumatra,
2) DPD APERSI West Kalimantan Province,
3) DPD APERSI The Province of Lampung,
4) DPD APERSI Bali Province,
5) DPD APERSI Province Nanggroe Aceh Darussalam,
6) DPD APERSI Riau Province,
7) DPD APERSI Provinces of Riau Province,
8) DPD APERSI North Sumatra Province.
The addition of the number of DPD has been Also brought an impact
increasing the number of memberships. Based on the last record
up to MUNAS II APERSI, dated 5 s.d 6
September 2006, the number of members became 899 members who
spread at 17 DPD in 17 provinces across Indonesia.
Period 2006- 2009. the organization's development program at the service of 2006 s.d
2009, was to continue the development of the organization to the area-
region of the entire province of Indonesia. During the work year 2006 s.d
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2009, in addition to the consolidation of the organization on the DPD-DPD
The existing APERSI, also continued with the efforts
the formation of the new DPD APERSI as:
1) DPD APERSI Province East Nusa Tenggara,
2) DPD APERSI East Kalimantan Province,
3) DPD APERSI Bangka Belitung Province
The addition of the number of APERSI DPD APERSI in the province definitively
is influential to the membership count. As of 31 December
2009, as many as 1,387 and the active 389 member developers
are distributed at 19 DPD APERSI and a new area that
is prepared to be the new DPD APERSI. In
the following preparations are in the area of the Special Area Province
Yogyakarta, Southeast Sulawesi Province, Gorontalo Province,
West Nusa Tenggara Province, West Irian Jaya Province/Papua,
and Bengkulu Province. In accordance with the Basic Budget and
Household Budget (AD/ART) APERSI, institutional
organization at the county/city level, with the designation Coordination
Region (Korwil) whose formation is adjusted to
needs.
In addition to that in the chain of consolidation and
organization development forward, DPP APERSI
gradually will conduct APERSI formation in the region
Province throughout Indonesia, so that the developers
existing medium and small housing in the area
can be located optimally, to support the Program
People's Housing Development in the area in accordance with
Government Regulation No. 38 of 2007, as the embodiment
of Regional Autonomy.
The move as an embodiment of support Against
The National Movement for Sejuta Houses (GNPSR) which
is introduced into the Mid-Term Development Plan
(RPJM) Housing and Settlement sectors.
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Period 2010-2013. The organization's development program in 2010
is the development framework for the development of the service organization
2010-2013, is continuing the development of the organization. organization to
province areas throughout Indonesia. The program
organization development other than to enhance the ability
and existing DPD APERSI existence, also expand
network organization to the provincial capital. With the expansion of the region
coaching is intended to drive the growth of the venture
housing developers and settlements. At the end of 2010
this, was prepared for the formation of 3 (three) new APERSI DPD,
that is:
1) DPD APERSI West Papua Province
2) DPD APERSI Central Kalimantan Tengah
3) DPD APERSI South Kalimantan Province.
(b) Mission and APERSI objectives As amended in the opening of the Basic Budget and
APERSI Household Budget, that this organization was established
as the service and service of national employers in
small middle housing developer fields for
realize home provision for the income community
medium to bottom.
Landscape on the vision, the mission, the developers
Housing and Settlement are obligated to provide
the real contribution to the community, nation and country through
A healthy housing and housing development process,
habitable, and Green Lestari, especially for the community
middle-income below.
With the foundation of the Mind-Mind Developers Association
All Indonesia Housing and Settlements (APERSI)
try to find a true identity in developing the sector
housing with new paradigms and commitments to ikut-as well as
building the nation and the unitary state of the Republic of Indonesia,
the prosperous was born and bathin.
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(c) The development achievement of RsH 1) Since its inception in 1998 until 2003, which
is the wake of the multi-dimensional crisis, at
where APERSI is performing consolidated, so
the achievement of construction on the Simple House (RS), and
Very Simple House (RSS), relatively still small. For 5
(five) years with a total number of around 170 developers,
at 9 DPD, just reached about 2,000 units.
2) Throughout 2003, the new APERSI member reached
around 170 developers, it has been successful. contribute
by building about 10,000 units of RsH. At that time,
the consolidation developers, the
developers who had limited land (5 s.d 25
acres), and did not enter the BPPN asset list, but
the difficulty of building because the absence of financing sources
from the banking sector.
3) Throughout 2004, after the Government began to be launched
the housing subsidy program, APERSI member developers
began to rise, and about 30,000 units of RsH were able to
built.
4) In 2005, APERSI was targeting to build
about 75,000 units. However, due to the policy between
Permepera about the maximum price of RsH (April 29, 2005)
with the Finance Minister's Decision regarding the release
PPN for RsH for a maximum sale price of Rp. 42 million new
exit 1 August 2005, resulting in the construction of RsH
experiencing slowdown. Nevertheless in 2005,
can be realized as much as 30,757 RsH units for
grazing PNS, TNI/POLRI and program participants
Jamsostek can be completed.
5) Throughout 2006, with the more Increase in number
membership, as well as the policy of selling prices
up to RsH and increased money subsidy
muka/Bunga KPR margin, member developer
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APERSI as Indonesia, it has been able to realize
simple house construction (RS) and modest home
healthy (RsH) as many as 37,676 units.
6) In 2007, it has been was realized at 53,498
units.
7) In 2008, from the target of 92,390 units already
realized about 60,000 RS and RsH units.
8) Whereas in 2009, RS development achievements and
RsH due to the Global Financial Crisis, where
developers have difficulty acquiring the source
financing, so that the target decreases around 89,279 units, and
realisation until the end of October 2009 has only been achieved around
54,874 units, or about 67.06% of the target.
9) Throughout 2010, which is targeted to produce
as large as 80,000 Home Homes units, the total number of units in the United States. but because
constraint by changing the policy of the financing system
housing development, up to now estimated to be only
reached about 48% of the target.
(d) APERSI struggle for RSH/RST-Housing developers for MBR Specialty in the field:
1) The Release of PPN: for Home Prosperous Paths (RST) s.d
A maximum price of Rp. 70,000,000,-(seventy million rupiah).
2) PPH Final: 1% for Healthy Home Healthy Homes, and
5% for real estate.
3) Electrification:
MOU PLN regarding special electrical splicing and
full certainty for housing RsH/RsT
Consuls and special construction standards for RsH that
lighter than Real estate housing but fixed
meet national security standards. DPP APERSI |
Profile Organization 7
4) Bank
a. KPL-Land Owner Credit
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b. PUM (Muka Money Loan) long term.
5) Home supply for PNS-pushed immediately expelled
KEPPRES set about housing savings for
PNS, to enlarge the opportunity of PNS in having
home.
6) Pemda permissions are given the target to build RSH or
rusunami in the number targeted central government and
success rate determines the help speed of the funds from
the center to the area. 4. That APERSI member in this member of the applicant is cast
is important in housing development and settlement in particular
to the MBR group with portions and contribute real in
the building of the people ' s home where APERSI In 2011,
reached the target of building as many as 60,000 home units for
MBR group [Evidence P-4]; 5. That is formly and factual, the applicant cq of the Developers Association
Housing and All Indonesiic Settlement (APERSI) which was established on 10 November 1998 in Jakarta on the basis
The similarity of the vision of the developers of the field Similar efforts in
simple housing development efforts/very simple, and
then make the organization a means for channing
aspiration and fight for the benefit of the developers
medium and small in order to get propotional attention from
Government.
Landscape to that vision of housing developers and
settlements are obligated to make a real contribution to
society, nation and country through the development process
housing and settlements that healthy, livable in particular to
low-income societies (MBR), as listed
in Article 2 of the APERSI Basic Budget. [Evidence P-5]; 6. That the applicant is a developer enterprise organization
housing and settlements including those carrying out the mission
in the area via DPD APERSI that is committed to
home building for the MBR group, so as Association
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A residential and residential developer who has a mission to
home provision for MBR groups. Thus the applicant
has a constitutional interest and even has
a constitutional loss by the enacgging of Article 22 of the paragraph (3)
The Act No. 1 of 2011 was honed for
test done. materiel to the Constitutional Court;
7. That thus the applicant reasoned and absah has
the constitutional authority as set out in Article 51 of the paragraph
(1) Act 24/2003;
8. That the applicant is already real and factual in the timeframe
the length is committed to the construction of a modest home and
a modest home healthy. 8.1. That the applicant through its members did
home-building activities for the scattered MBR group
across Indonesia; (vide Kompas.com, "APERSI wakes up 1,000 cheap homes Rp 25 million", 4 Mai 2011) [Evidence P-6];
8.2. That formally in the applicant's base budget
mentions the intent and purpose and the effort indicated in
The applicant's foundation budget:
Article 2: " APERSI is a residential developer enterprise organization and the The majority settlement
its members are committed to the construction of a house
simple and simple house healthy ".
Article 4 of the 1, which reads, " The Developers Association
Housing and All Indonesia Settlements (APERSI)
has the following objectives:
1) Set up a Housing Development Company and
Settlement of the entire Indonesia.
2) Increds the professionalism and pushes
creation of increased enterprise scale
assembled developers in the Association
Housing Developers and Whole Settlements
Indonesia (APERSI).
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3) Increes the quality of housing provision and
settlements in order to realize the well-being of life
the people of Indonesia.
4) An active role in the entire development process
The national especially in housing development
and settlement in the framework of national goals is
the form of a safe, fair society and
prosper based on Pancasila and the Act
Basic 1945. [Evidence P-7]. 9. That under the jurisprudence of the Constitutional Court, the institution
non government that runs activities as well as the mission to
the general interest includes exercising the public interest in
the area of the provision of people housing in particular MBR so
The applicant has a legal standing in the test of the invited materials-
Invite against UUD 1945;
III. Reason-Reason For The Request
A. Dalil-dalil that the provisions of Article 22 paragraph (3) of the Act No. 1 of 2011 impede the fulfilment of the right of residence or right of housing which is a constitutional right under Article 28H of the paragraph (1) of the 1945 Constitution.
1. That constitutionally every person is entitled to a prosperous life
born and inner, residence, and get an environment that
is decent and healthy, which is a basic human need;
2. That the right of residence is explicitly listed in the Article
28H paragraph (1) of the 1945 Constitution, which reads as follows: "Each person
deserves a prosperous life born and inner, residence, and
get a good and healthy living environment as well as entitled
obtaining health care";
3. That is thus clearly a constitutional right to
residence in this case the rights to the housing which
is explicitly recognized in Article 28H of the paragraph (1) of the 1945 Constitution, and therefore
is a state liability. exercise its duties as
executive in the development of people ' s housing, including with
providing ease and or help of housing and regions
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settlements for each person or citizen, in particular
for low-income society (vide, consideran
"Draw" Act Number 1 of 2011).
That basic human needs are three known serangkai
as food, stables and boards, where the board is home
as a residence that is constitutionally guaranteed
its fulfillment in Article 28H of the paragraph (1) UUD 1945;
4. That in addition to being a constitutional right, the right to housing is
the right of human rights (human rights) guaranteed in instruments or conventions
international. The right to a decent standard of living including food,
sandang, and housing, is the social economic right of the culture, where
Indonesia has ratified the International Covenant on the Rights
Economy, social and cultural (International Covenant on Economic,
Social, and Cultural Right) with Act Number 11 of the Year
2005 on the Concern of International Covenant on Economic, Social
and Cultural Right (Kovenan International Affairs on the Rights of the Economy,
Social and Cultural Affairs) or EKOPAL.
5. That the rights to the house as explicitly human rights are already guaranteed
in Law Number 39 of 1999 on Fundamental Rights
Man (subsequently called "Act 39/1999") Section 40 reads "Everyone is entitled to live as well as life
worth";
6. That the recognition and assurance of the right of home as
human rights is not just a statement or declaration that
the people are entitled to the house and hence the Government provides
the housing of the people, but:
6.1. The main instrument on human rights is the Universal Declaration of Rights-
Human Rights (DUHAM) accepted by the General Assembly
UN on 10 December 1948 through Resolution 217 A Article 25
paragraph (1) states that: "Everyone is entitled over levels
lives adequate for her health and well-being
and her family, including rights to food, clothing,
housing and health care as well as social services .... dst ";
19
6.2. It is a commitment as an international society that
civilized that signed the Rio de Jeneiro Declaration, where
Indonesia is always active in activities initiated by
United Nation Center for Human Settlements, which later
is also included in Agenda 21 and the Habitat II Declaration
recognizing that home is a basic human right and
be the right for everyone to occupy the hunian
worthy and affordable (adequate and affordable shelter for all)
[Evidence P-8]; 6.3. In the Millennium Development Goals (MDGs), which are to be
human health development indicators also provide
an indicator of alienation of acquiring a home for all, among other
others suggest that " As a fundamental basis
and as well a prerequisite for any person to survive
live and enjoy a dignified, peaceful, safe
and comfortable, residential provision and settlement
that meets decent and affordable principles for
all";
6.4. Harmonization and compliance with international conventions
including Agenda 21 and the Habitat II Declaration, not just for
the legal harmonization interest, will but compliance
constitutional state as a legal state (recht staat). The Constitution of 1945 has given the basic principles of human rights as one of the terms of the state of law, in particular the basic principles of human rights related to life and life and are symbols
or the Indonesian people in the context of the law. make the UUD
1945 becoming increasingly modern and increasingly democratic UUD;
[Correctional Guide of the Constitution of the Republic of Indonesia Year 1945, thing 144, published by the General Secretariat of the Assembly of the Assembly People, Jakarta,
2005] [Evidence P-9]; 7. That rights over the house as human rights which if it refers to the Explanation
The Committee on Social Economic Rights relating to Article 11 of the ICESCR
on what is referred to as the "Adequate Housing". The
20
Committe has defined the term "adequate housing" to the comprise
security of tenure, availability of services, affortability, habitability,
accerribility, location and Cultural adequacy.
Thus, against the state obligations in particular the Government
both the central government and the local government in order
guarantees the fulfilment of the home rights at least as measured
using 6 (six) The indicator is (1) the property of its rights
(security of tenure), (2) the availability of services (availability), (3)
the reach of the purchasing power of its society (affordability) (4) eligibility
as the residence (habitability), (5) there is an opportunity for each
person (s) accessibility), as well as (6) the location readiness and support
culture (location and cultural adequacy); Implications of the provisions of Article 11 of the paragraph (1) of the ICESC above is that
for any country that is a participant or a ratify this covenan
(including Indonesia) has an obligation to recognize the rights
citizens of a decent living are covering the adequate
of food, clothing and housing as well as the ever-ever
improving the conditions of livelihood continuously. (vide Oswar
Mungkasa, "A flashback to Housing as Human Rights" Magazine Inforum, Ministry of People's Ministry, Issue 1 of 2010, thing 20-21; [Proof P-10];
8. That is therefore the constitutional right of no other residence
is the rights to the housing indicated and guaranteed in the various
international human rights instruments, so that the constitutional right to
reside Align with the rights to the house as human rights;
9. That thus the fulfilment of housing rights is
constitutional rights and as well as a human rights intended
as a fulfillment of one of the terms of the state of law, so
the principle of justice and nondiscrimination to be the most important part in
fulfillment of housing rights.
In addition, the corresponding principle of fulfillment (to fulfill) rights of
the housing already secured in Article 28H paragraph (1) of the 1945 Constitution,
The Act nor international instruments, hence the right of
housing not only the right But it's a constitutional thing.
21
and becomes a positive and even already universal
law. Therefore the fulfillment must be provided by
the state organizer who is obligated to carry out the mandate of the Constitution
1945;
10. That the constitutional right to reside it is recognized by
founding fathers of the Republic of Indonesia as the right to house such as
statement of Muhammad Hatta, the first Vice President that
"One healthy house for one family"; 11. That a country through an executive or Government is obligated
makes a regulation that supports the fulfillment of housing rights
that, especially to low-income communities or
MBR groups by providing ease and or assistance
being entitled to the estate is referred to;
12. That in addition to the rights of housing as a constitutional right and
human rights, thus should not be inhibits, restricted, and reduced
with discriminatory treatment with legal norms in the Invite-
Invite that is not in favour of to the direction of fulfillment of the constitutional rights
over such housing;
13. In reference to Article 28H of the paragraph (1) of the Constitution of 1945
and in accordance with Article 40 of the Law Number
39/1999, then each person has the right to attempt,
provide and build a house to obtain Own right
over such housing.
Terms of Section 40 Act 39/1999 agree with direction
long-term development in Law Number 17
Year 2007 on the Long Term Development Plan (" Act
17/2007 ") , among them, it asserts:
(a) BAB II.2 letter D. 5, that "meets the dwelling needs for
the public for the city without slums";
(b) BAB IV.1.5 Item 19, that "The fulfillment of housing as well
infrastructure and its supporting means are directed at (1)
host of affordable housing development
by community purchasing power ...";
22
14. That refers to Article 28H of the paragraph (1) of the 1945 Constitution, then not
reasoned if the legal norm in the Act impeded or
obstructs and restricts any person to build or
have a home residence, including swadaya, as
the tangible form of constitutional rights over housing.
The constitutional rights of the house should not be inhibits
an Act norm is not to be inhibits acquiring
home in type and any form according to the needs and
the ability or power, as well as the appropriate with wide ownership
the land/property of any such person;
15. That with the provisions of article 22 of the paragraph (3) of the Act
The Number 1 Year of 2011 reads, " Single home floor area and
series houses have at least 36 (thirty-six) meters
square ", is clearly an Act norm that
creates obstacles and limits constitutional right
any person to build or buy a home unit premises
stay in order to fulfill the rights to the housing, in type and form
whatever according to the needs and capabilities as well as the
area The land belongs to every one of these people.
16. That by the provisions of Article 22 paragraph (3) of the Act
No. 1 of 2011 is clear and certain as causal
rising production prices or house sale prices in the market for
MBR group by the presence of the broad minimum terms
floor of 36 square meters for single home and series houses that
can be built and marketed, either by swadaya (swadaya house)
and by housing developers for MBR (public house);
Terms of provisions of Article 22 paragraph (3) Act Number 1 of the Year
2011, being causal is increasingly The purview of the MBR group's purchasing power,
by not being followed by increasing the revenue level
MBR group, so that the MBR group is getting left behind
access acquired the house as a constitutional right;
17. That such circumstances become causal or causal
it is the constitutional right of every person or citizen
23
has a home as a residence by for some reason
and context among others:
17.1. There are 57 million impoverished and almost poor, homeless and large numbers of MBR groups, but have not yet had a proper home. Based on BPS data, the number of poor residents in the month
September 2011 was 29.89 million people or 12.36% (vide
Statistical Center Board, "Report Monthly Social Data Data", Issue 20, January 2012, hal.101). The near-poor population is estimated to be 27 million people, so there
about 57 million poor and almost poor citizens.
This group of poor citizens who weigh most or almost
impossible to acquire the housing rights by because
low purchasing power, let alone in general they work in
informal sector.
According to BPS, the poverty line with expense Rp.
233.740,-per capita per month (Kompas.com, "The poverty limit version BPS rises", 2 July 2011). Meanwhile, to access the cheap home program at a price of Rp 20
million s.d Rp. 25 million only, with a mortgage of Rp. 160 s.d 220 thousand per
month.
In that connection, if clustered cluster of society
Indonesia according to its revenue, is:
a) middle-income society (MBM) with
earnings between Rp.2, 5 s.d 4.5 million, approximately 10% s.d
20%;
b) low-income society (MBR) with
earnings between Rp.1 million s.d less Rp.2, 5 million, approximately
20% s.d 30%;
c) poor society with less than Rp. 1 million,
about 60% to 70%;
(vide Zulfi Syarif Koto, " Politics Development Housing in the Reform Era-Who Gets What?", LP3I and Housing
24
and Urban Development Institute (HUD), Jakarta, 2011, hal.
109).
17.2. Still widespread and the size of the marginal group that are housed in the residence is inhumane. In reality there is still a lot and wide population that
housed inhumanely in various cities
large, small towns even in the countryside. Facts
eviction of residents ' homes on other people's land
or private property and or Government, settlement area
slums, store role, under the bridge, below
toll road, suburban railway. fire, on general facilities such as
markets and shops, disaster-prone land and various
elsewhere.
Based on the people welfare statistics of 2008,
acquired the following facts and data:
as much as 11.95% the household still lives in the house
with the ground floor;
as much as 10.6% of homes stairs with walls yet
permanent;
as much as 3.61% of households live in the home beratapplied
leaves;
as much as 21.1% of households have not been able to access water
net;
as much as 8.54% of households still not to get
power connection;
as much as 22.85% of households still do not have
access to jamban.
(vide, Renstra Kemenpera 2010-2014, in Zulfi Syarif Koto,
"Politics of Housing Development in Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, hal.56).
Therefore, Article 22 of the paragraph (3) Act Number 1
Year 2011 is inconsistent and frustrates the home program
cheapen done for example by the Provincial Government
25
South Sumatra that provides a cheap home for
poor and marginal society (vide okezon.com, "The low-cost home program Sumsel is fouled", 19 January 2012).
17.3. The rise in house prices is the Simple House (RS) and the Home Very Simple (RSS) about 1,500 percent in 1997/1998 s.d 2009/2010. economically and based on the mechanism in the market, prices
RS and RSS experienced a very significant increase in the market. significant amounts are
1500 per cent in 1997/1998 s.d 2009/2010,
which was in 1997/1998 RS prices amounted to Rp.5, 9 million and
RSS prices amounted to Rp.4, 2 million. In the meantime,
2009/2010, RS's price of Rp.80 million and RSS prices
amounted to Rp.55 million. (vide Zulfi Syarif Koto, "Politics of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, matter. 93).
Thus the price increase of RS and RSS homes is very
large compared to the increase in the MBR group's salary income
which became its market. If the RS and
RSS price increases in the 10-year period reach 1500%, or average
150% per year, which means very much faster than the average increase in the provincial minimum wage (UMP).
The new UMP in 2011 experienced an average increase of the
8.69% instead of 2010 (vide "Upah Minimum Province (UMP) 2011 rose") , then, if the accolation for 10 years only experiences an increase of 86.9% per 10 years.
17.4. The owner of the land with a small area cannot build a home. Since, not every person or citizen
has an area of land or land tread of 36 meters
square, mainly in a relatively dense urban area and
low-income, so that it is not possible.
build or have a home unit with floor area
at a minimum of 36 square meters.
26
According to the structural poverty factor data that causes
many townspeople are experiencing constraints getting place
stay and land the effort (see Djaka Suhendera, "The land certificate and Poor People-Implementation of the Project of Appendication in Kampung Rawa, Jakarta", Publisher HuMa, Van Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010, hal.4) [Evidence P-11].
17.5. The 36-square-meter floor requirement raises the land price component in building a home, and unaffordable MBR group. With a shortage of land resulting in land prices
expensive in urban areas, it inhibits people
or citizens to acquire a home, and or
buy a house by due to high level of home prices.
let alone with a minimum floor condition of at least 36 square meters;
The price of land in countries is developing in Asia which
is much higher than those of other countries, including
developed countries (see Djaka Suhendera, " Land Certificate and Persons Miskin-Pelakers Project Ajudikasi in Kampung Rawa, Jakarta", Publisher HuMa, Van Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010, hal.5). [Evidence P-12]. The housing development problem of one is constraint
expensive land prices (vide Kompas.com, "Simple House Terconstraints Land Price", 10 November 2009, downloaded 28 December 2011) [Evidence P-13], so that the minimum terms of the home floor area are under section 22
paragraph (3) Act No. 1 of 2011 impeded
fulfillment of the right of residence.
17.6. MBR group stagnant power stagnant but home prices increase with a minimum floor requirement of at least 36 square meters. Not every person or citizen has power
buy (purchasing power) or have revenue that is
buy enough or pay a mortgage price if
27
counts with the citizen income level
the poor or the MBR group.
The purchasing power of the real weak MBR group is recognized and
is notoir feiten, because there is a large gap between
the people purchasing power at market prices. This reality
is put forward by Ali Wongso, member of the DPRRI V Commission (vide
"Indonesia needs 700 thousand homes a year", vivanews, 20 October 2010) [Evidence P-14]. So that the floor requirement is at least 36 square meters
increasingly unaffordable by purchasing power and income level
MBR group.
quantitatively with simple calculations can
be expressed fact and proof:
a) Assuming MBR group revenues have
the most revenue of Rp. 2.5 million with
credit mortgage by Rp. 700,000,-(seven hundred thousand rupiah),
then an MBR person or group would not be able to
buy a home unit with a minimum floor area of 36 meters
square that will reach Rp. 70 million;
b) Although with the help of the Likudity Facility
Housing Financing or FLPP (vide Regulation) Minister
People's Housing Number 15 Year 2010), if with
a minimum floor requirement of 36 square meters, then the sale price
home unit to Rp. 70 million, as a result
MBR group which has revenue Rp. 2.5 million
per month, will not be able to buy a home unit with
floor size of 36metre square at a price of Rp. 70
million. This is estimated at home size with floor size
36 square meters, compared to MBR's revenue;
c) Based on the home development practice experience,
if the home unit is 36th square meters,
with a minimum salary cluster of Rp.2, 5 million per month, and the price
home with KPR for Rp. 70 million, with liabilities
28
installments of Rp. 700,000,-per month, then it is expected to be not
will be able to be able to afford an MBR group.
Simulation of an affordable MBR group with
a maximum salary cap of Rp. 2.5 million per month, i.e. if
number of installments Rp.580,000,-per month, at KPR price
Rp. 58 million, then acquired only the house with a wide
floor (type) 23 square meters. If the mortgage is Rp. 500,000,-per
month then the affordable is only a 14-meter-type house
square.
Table: A salary simulation with the number of KPR houses subsidised Type difference
(m²) margin
(Rp) KPR
(Rp.million) Cicilan Gaji
(3xcicilan) (Rp)
Limit FLPP (Rp)
36 0 0 70 * 700,000 2,100,000 2,500,000
23 -13 -12 58 580,000 1.700,000 2.500,000
14 -22 -20 50 500,000 1.500,000 2.500,000
Asumption of building price of Rp. 900,000,-per square meter
(study Litbang DPP APERSI per December 2011). Price
home with KPR Rp. 70 million is referring to skim
FLPP and Finance Minister Regulation (PMK) Numbers
31 /PMK.03/20011, which regulates simple house (RS) and
very simple house (RSS) is exempt from
Value Added Tax (PPN).
d) In fact there has not been a skim of facility assistance
aid and/or subsidies that could cover the cost structure
additional arising from the wider addition of the floor
of 21 square meters to 36 square meters (increasing
15 square meters), resulting in an increase in house prices
resulting in an increasingly unaffordable access to the
purchasing power of MBR groups. Because, the increase in wages
the MBR group is unable to pursue the rate of price increases
buy the house.
Thus, the MBR group is impeded to buy
home because the sale prices are getting higher and unaffordable
with MBR income level;
29
e) In addition, there is no subsidy policy and
assistance or any other facility issued
Government cq of the Ministry of Public Housing for
cover the cost structure construction of a home unit with
add 15 square meters or an average of around Rp.
13.500,000,-(thirteen million limaratus thousand rupiah) [price
building Rp. 900,000,-(nine hundred thousand rupiah) x 15
meters] for supporting the enforcement of the provisions of Article 22
paragraph (3) of Act No. 1 of 2011,
The sale price of home units is increasingly unaffordable by
MBR group;
f) Quodnon, the FLPP program is still not able
supports financing for the group home acquisition
MBR significantly, by For as long as
in 2011 only 99,699 home units were acquired
FLPP (vide of the Ministry of People's Housing, "Press Release Reflection End of the Year 2011") [Evidence P-15]. This means the performance of the FLPP attainment is still far below from
the FLPP's target target is 158,272 home units;
g) Quodnon, FLPP is not a subsidy or social assistance for
MBR group, it will be but Qualify as
financing or liabilities to be returned,
although later changed from the budget post in
APBN for subsidies (social assistance) to a liquidity fund
housing financing through skim FLPP so
the housing aid subsidy facility in the Act
APBN has converted to credit/financing
owning home in the form of Minister Regulation
People's housing raises its own legal issue;
h) Not to mention the group of less income communities
of Rp. 1 million per month, or qualified BPS citizens
poor with expenditure of Rp. 233.740,-per capita per
month, it must have been very heavy acquiring a home and
would not be absorbed into the FLPP facility mechanism.
30
17.7. The domino effect of home rights barriers including not published IMB The rights of people or citizens of the MBR group
build and have a home by being stunted not
may be published by Ijin Building a building (IMB) if not
is built with a floor area of 36 square meters. Let alone cost
for IMB for home construction for the MBR group
still remains charged with fees, which is the same as cost-
costs for the development of a home developed
middle and upper-class home developer.
17.8. Resisten for the national target housing development for MBR It is the right of people or citizens of the MBR group
build and have a home by being stunted, let alone
with the minimum floor requirement of minimum floor 36 square meter
so the slowing the development target
the people ' s housing the Housing Ministry
The people are amouning to 8.6 million units of the house. (vide Redaksi, "MBR Access to have a home should be ranked" www.kemenpera.go.id accessed on December 29, 2011)
[Evidence P-16]. Proof of modest home absorption target subsidised
in 2012 an estimated 123,790 home units. The target
decreased compared to 2011 as much as 160,925 home units
(vide daily Kompas, "Down, Target Housing People Year 2012", 5 January 2012). If in the original state only (without the floor area requirement
at minimum of 36meters square), not only to increase backlog
will but result in housing achievement targets not
fulfilled, with the facts between other:
a) The number of additions each year reaches 710,000 units
home (vide Redaksi, "MBR Access to have a home should be ranked" www.kemenpera.go.id accessed December 29, 2011) [Evidence P-17].
31
b) Indonesia requires an additional home of approximately 700 thousand
home units per year with population growth assumptions
1.3 percent (vide "Indonesia needs 700 thousand homes a year", vivanews, 20 October 2010) [Evidence P-18].
c) Indonesia lacks the number of home units as much as 13.6 million
units. One cause of lack of home for citizens
low income due to land limitation (see
kompas.com, "The optimistic government provides 100,000 home units", December 19, 2011) [P-19 evidence]. If only the shortcomings home or a deficit of 13.6 million homes
that is at the handle with an average of 200,000 home units per
year, then it would require 68 years to address the housing deficit. Not to mention the diacumlated with the addition of home needs every 700 thousand years.
d) The housing problem or occupancy is not just a lack of
the number of home units but also the weak problem of the ability
the people buy because there are big gap between power
buy the community at market prices. This reality
is put forward by Ali Wongso, member of the Commission V DPRRI (vide
"Indonesia needs 700 thousand homes a year", vivanews, 20 October 2010) [Evidence P-20].
e) It is estimated that there are about 8 million households in the Indonesia
which has not occupied the habitable home that is largely
is an MBR group (vide Magazine "Inforum" 3 Year Edition
2010, Ministry of Housing People, hal. 12-13. [Evidence P-21].
f) While the exact opposite is not achieved
target housing development of the people, where
qualitative only reaches 40% s.d 50% of the target
housing development so that it is the creator factor
housing emergency (vide Business Indonesia, "Indonesia in residential emergency", 13 December 2011) [Evidence P-22].
32
g) In view of Rhenal Kasali management expert, observer
economics of the University of Indonesia, development policy
housing not pro poor due to development policy
The housing is directed not for the poor (vide daily
Kompas, "The middle class has not been a strategy", 23 December 2011, hal.17). [Evidence P-23].
17.9. Not applicable and not feasible and inconsistency with/for PPN's release policy The housing policy should be consistent with policy and
economically feasible with the MBR group's purchasing power.
However, in fact, the provisions of Article 22 paragraph (3) of the Act
No. 11 of 2011 as legal, irrational and
norms have no financial justification by not applicable and
not available with residential economic calculations, if
objectively redeemed and analyzed under the provisions
The Financial Minister Regulation (PMK) Number 31 /PMK.03/ 2011
(which revised PMK Number 36 /PMK.03/2007).
According to the provisions of Article 2 PMK Number 31 /PMK.03/2011,
First Tax exemption policy of Value (PPN) for
Simple House (RS) and Home Very Simple (RSS)
is the home that is by cash or financed
with credit facilities, either subsidior unsubsidid,
or through financing based on the principle of sharia, which
meets the provisions:
(1) The area of the building does not exceed 36 m² (thirty-six meters
square);
(2) The sale price does not exceed Rp. 70,000,000,-(seventy million
rupiah);
(3) Is the first home to be owned, used alone
as a residence, and has not been moved in
a five-year term since it is owned; [Proof P-24] 17.10. Triggering the higher the accumulation and escalation of backlog.
Adanya escalation backlog of the people's housing is already
real and continues to grow, let alone if by the presence of obstacles
33
of Section 22 paragraph (3) Act No. 1 of 2011. If
examined 2009 data backlog as much as 7.4 million home units,
compare that in 2010 it was estimated to be 8.4
million home units.
If compared to 2002 targeting 130,000 units.
realisation is only 39,979 home units. As of 2003,
until September 2003 alone, it reached the realization of 59.275 units
home of the target 90,000 home units (vide daily Kompas, 13
February 2004. See also, Djaka Suhendera, "Certificate of Land and Poor People-Implementation of the Project of Ajudikasi in Kampung Rawa, Jakarta", Publisher HuMa, Van Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010, hal.5) [Proof P-25]. Based on the facts backlog at the top and supported data-data
secondary [Evidence P-16 s.d P-25], can be put forward that: a) Target home development achievement is not achieved from
year to year in a significant amount of 40 s.d 50%;
b) The quantitative easing is clear and factual
proves that the housing development target with
floor area below 36 square meters alone, still fixed
increased backlog.
c) If the facts are associated with the broad requirements
floor minimum of 36 square meters as defined by Section
22 verses (3) Act No. 1 of 2011, then it is a causal. Its halteration and its collapse
the constitutional right of every person or citizen of the above
home of the place for the residence.
d) Thus, then with the norm Article 22 of the paragraph
(3) Act No. 1 Year 2011, then it
being causal increased level backlog so that
raises the constitutional loss of people or citizens
the society guaranteed in Article 28H paragraph (1) of the 1945 Constitution;
17.11. Triggering the wider slums of slums and hampering access to home
34
The provisions of Article 22 paragraph (3) Act No. 1 of the Year
2011 implicates the growing environment
slums, due to the increasingly low purchasing power
and the low Access to the home. The target setting
environment and slums of 655 Ha with
a total facilitated population of 130,000 will
inhibits (vide, Ministry of People's Housing, "Final Reflections of 2011", on the Mission, The purpose and objectives of Renstra Ministry of the People's Housing of the Year 2010-2014. [Evidence P-26]. The figure is far below the broad data of slums from
research results United Nation Development Programme
(UNDPP), indicating a settlement of settlement
slums reach 1.37% each year, As of the year
2009 the area of slum settlements is estimated to be 57,800 Ha
from the previous condition of 54,000 Ha at the end of 2004
(vide Magazine "Inforum" Edition 1 Year 2010, Ministry
Housing People, things. 7. [Evidence P-27]. If the provisions of Article 22 paragraph (3) Act No. 1
Year 2011 are applied, it is expected to be stunted
with still many houses in the residential area
slum in urban area with no floor area. Up to 36 meters
square, so a new construction effort (PB) home to
The rundown program of the slums would be
inhibits, as well as the Pra and Post-certification rights
top of the Land (SHAT) facility. constraint because of the cq Government
The People ' s Housing Ministry itself will be bound with
Article 22 paragraph (3) Act Number 1 of 2011.
While the environmental problem of slums is more
the area of the pegged target is 57,000 Ha (vide
Magazine "Inforum" Edition 3 Year 2010, Ministry of Housing
People, things. 13). [Evidence P-28]. It is a threat to the attainment of the agenda
casings in a new era of housing and settlements in
35
Indonesia in the Housing Congress Declaration and
Settlement II of 2009, which included targeting
is the city without the 2025 slums of 2025 (vide Magazine "Inforum" Edition 1 Year 2010, Ministry of Housing
People, thing. 12-13. [Evidence P-29]. 17.12. Shrinking human rights to acquiring a residence or
home. Shrinking the fulfilment of human rights over a home that is guaranteed in
Article 40 of the 39/1999 Act, and human rights to the place
a guaranteed residence in the International Covenant on
EKOPAL: the home rights of the house
home ownership (security of tenure), outreach
community purchasing power (affordability), opportunities (accesibility), and
availability of services (availability of services).
While the fulfilment of human rights is not merely a harmonization
the law but is affirmed as one of the country's terms
the law, so that the respective rights of the house over the house are related to
the waiver of the state of the law itself.
If the provisions of Article 22 paragraph (3) of Act No. 1
The year 2011 is enforced then the access of the home will
impeded and even further slowed the acquisition of the rights to
home by due to the home monthly expenditure index
ladder for type of expense instead of food, acquired data
that cost "rent or a home contract" is as much
10.61% of total spending (for all households).
Let alone if added cost "care and repair
home" at 1.55%, which if accolation becomes more than
12%.
If compared, much greater than the "education" cost
(3.55%), or cost "Health" (3.03%). The cost of "rent or
home contract" is almost the same as the food cost for
"padi-padian" at 10.82%. If compared to the cost
household expenses per month for "Food" amounted to
36
54.55%, and expenditure for "Not Food" amounted to
45.44%.
From the "Not Food" group, expenses for home
(rent and repair) amounted to more than 12%. (processed from BPS data,
SUSENAS-Social Survey of the Economy of 2005).
Therefore, the expenditure on house rent is very important
and large in the allocation of family shopping in Indonesia.
18. That if prior to Section 22 of the paragraph (3) of the Act
No. 1 of 2011, that is in the absence of the requirement
the minimum area of the home unit floor is at least 36 square meters, already
incline escalation and accumulation backlog high, then
if required under section 22 paragraph (3) of the Act
No. 1 of 2011, it is expected to be expected (predicted)
incur:
18.1. Home prices are higher and unaffordable group MBR Expected home unit prices available in the market increasingly
soaring and unaffordable MBR groups, as well as
unable to acquire PPN-free facilities and The FLPP.
18.2. Accumulated and escalation backlog . backlog upgrades or housing deficits will increase
which could reach 46.8 million units of the home. The calculations
according to Eddy Ganefo, General Chairman of the APERSI DPP, that is 36
square meters are divided by 10 then the denan 3.6. Currently backlog
housing sector 13 million home units if multiplied by 3.6 then
will reach 46.80 million (vide Indonesia Business, "Housing deficit potentially rising", 19 January 2012). Thus, the fulfilment of the rights to the housing is obstructed which
is caused as a causality to the norm of Article 22 paragraph (3)
Act No. 1 of 2011;
18.3. The MBR group is getting harder and harder to acquire a home. MBR groups whose income is constant to be not
are able to move up towards housing access because of the power
37
buy is weakened, so it appears and the magnitude of the number of layers
a new MBR group does not have any access to
housing.
Let alone a minimum salary cap/income limit
FLPP financing facility is up to Rp. 2.5 million, when
is not factual with the due reality of MBR group
raised on the cluster pay/earnings of Rp. 4.5 million to be able
expand even more MBR group access to
earn home;
18.4. Resistance is handling slums of slums Norma is inhibiting the area of settlement area
slums due to an access to home access to
a significant number of MBR groups
inhabiting Slums neighborhood;
18.5. MBR group of time and degradation of family comfort as well as its social life With difficulty obtaining home access or at least
obtaining a home in the area near the workplace then
will drive the MBR group to Located and inhabiting
home to a remote area settlement and not
certainly have access to work (e.g. workers
formal-private, or civil servants or civil servants)
thus adding to the cost burden. transport and accommodation
that there is a turn reducing the degree of welfare family,
as well as loss of time or time used on the street
(from/to home) which should be used to fill
social life and fostering family, including calm
in work.
The state of It's also the same as the PNS to acquire
home. For the civil servants group alone for example, from all over
districts/cities in Indonesia, only 10 percent have
a commitment to the development of home development programs
for civil servants. Meanwhile from a number of 4.4 million PNS, new
about 1.5 million PNS are owning their own homes. It's
38
about 75 percent of the PNS nationwide are in the area.
Required regional commitments to succeed the program
procurement for PNS.
While if the PNS had owned their own home, they were more
calm in work and certainly impacted
improving the quality of Pemda's work (vide Magazine Inforum,
" The importance of home procurement programs for PNS ", Edition 1 Year 2010, Ministry of People ' s Housing, matters. 32). [Evidence P-30].
18.6. Loss of potential income from home ownership investment In an investment perspective, owning a home is an investment
which benefits its owner compared to investment
savings or deposits. In the event that the MBR group
is stunted to have a house, it creates a result of not
only has no access to the residence and has
home as well as, but results in them not
connected with housing and banking systems so
eliminating potential income or price increases
home assets as due investai could be acquired
homeowners of the MBR group.
This is the problem structural or regulation/policy that
inhibits MBR group acquire home . Circumstances
such as this that Hernando de Soto as
legal failure (legal). (vide Hernando de Soto, "The Mystery of Capital", Qalam, 2006, hal.17). Because most citizens cannot
be integrated into the system (housing or financing)
by using the laws that pro-poor (pro MBR) for
obtain a home with limited pay/income, and
then acquired a home unit that was juridis-formyl
able to convert its assets (home) to a capital that
had an investment value.
39
18.7. Contraphroductive with the Government's obligation to meet the needs of the house for MBR qua-juridis, the Government is obliged to meet the need
home for the MBR group is already affirmed in Article 54
paragraph (1) Act No. 1 Year 2011. Even
provides ease of development and home acquisition,
but in the presence of Article 22 paragraph (3) Act
No. 1 of 2011 is precisely counterproductive in
housing development in particular to the MBR group
which is still categorised as a maximum of Rp. 2.5 million
per month. As for the form of an arranged house, the facility that
is awarded to the group with earnings up to Rp. 4.5
million.
18.8. Contraphroductive with residential asas and settlements in Act Number 1 of 2011. Based on housing principles and residential areas in
The Act No. 1 of 2011 is asserting
to: (b) justice and alignment; (e) the reach and
ease as Article 2 of the Number 1 Act
2011.
In an explanation of Section 2 of the letter b and the letter e Act
No. 1 Year 2011 has an important kuncil word that
home for the entire people (for all). Therefore
the restrictions on Section 22 paragraph (3) of the Act
Number 1 Year 2011 is inconsistent with the asas of reach,
justice and the enacignment of the Act
No. 1 of 2011.
19. That the required minimum floor area is required and msih
in accordance with the convenience of the MBR group is broadly
at least 21 (twenty-one) square meters, so it must
be considered in the verdict of the request A quo. With regard to
with a floor area of 21 square meters with reason and consideration
following this:
40
19.1. MBR purchasing power limitations With the limitation of MBR group purchasing power, availability
home with a floor area of 21 square meters that could still
be reached by the MBR group in accordance with the revenue that
owns. This corresponds to the aspect of the price range
home as an indicator in the International Covenant on
EKOPAL and the asas of interest in the Act
Number 1 of 2011.
19.2. Needs of new family/new home-type houses 21 that can grow (home grow), not the type 36 MBR group which includes a new pair
married or a family that has fostered its own family
and to be independent which if with 2 (two) persons or
plus 1 (one) child, it becomes 3 (three) persons
the occupants of the house, it is still adequate with a minimum floor area of 21
square meters.
let alone after the couple have capabilities and
increased income can develop it
to more broadly or known to the concept of home
growing.
It agrees with the housing observer's opinion of
Bandung Institute of Technology (ITB), Jehansyah Siregar that
"Young families do not need a home of 36 square meters
but requires a home to grow. Along with
increased income and family development, home
it could be self-built gradually"(daily vide Kompas,
"Broad Home Revised", Friday, 25 November 2011). [Evidence P-31].
19.3. According to the technical guidelines Rs. Healthy based on the Decree of the Minister of Settlement and Prasarana Region Area floor area of minimum 21 corresponds to the calculation
in the provisions of the Simple House Technical Guidelines Sehat
(Rs. Healthy) set by the Minister ' s Decision
41
Settlement and Prasarana Region Number 403 /KPTS/M/2002
[Evidence P-32]. Based on such provisions, the minimum floor area requirement
buildings for a simple home are healthy (Rs. Healthy) is:
For 3 (three) of the soul, then:
The minimal home unit is 21.6 square meters wide.
The land area is at least 60 square meters.
For 4 (four) souls, then:
The minimal home unit of the floor area of 28.8.
The land area is at least 60 square meters.
The building of Rs. Healthy itself prepared with Principles
The impudence of the impudence, among others:
The Home Application grows So that the public, in particular MBR is increasingly capable
to reach home ownership, the public is given an option
can gradually develop its home with
implementing a growing home concept.
The Area's Broad Needs. While the MBR's ability is limited, the development of the Rs
Sehat/RSH should still pay attention to the wide need
minimum occupancy per person (7.2 square meters s.d 9 meters
square) and the minimum broad need of a 9-meter bed space
square.
This area can be translated into an undefined design form
must be fixated on an example of a design as stated in
Kepmen Kimpraswil Number 403 /KPTS/M/2002.
Description The basic principle of design as described above
is intended to be the development of Rs Sehat/RSH can
be reachable by the still highly
limited MBR economic capabilities. For that cost efficiency needs to be noticed in
design development done.
(vide Settlement Department and Prasarana Region,
Directorate General of Housing and Settlement, "Lead
42
Implementation of Development and Modest Home Financing (Rs. Sehat/RSH) with Support of Housing Subsidy Facilities", Jakarta, May 2003, hal.4.5, 6) [Evidence P-32.A].
19.4. The type 21 house is still needed market Home with floor area or type 21 square meter is
still needed by the housing market in particular the group
MBR. Therefore, the Government as an executive that
is obligated to meet the needs of the MBR house and as
the regulator compliant to Article 28H of paragraph (1) of the 1945 Constitution,
should not not serve the availability of the house as appropriate
needs (need) and the ability of its people.
The needs of a house with type 21 is still quite large in
the area rather than the community housed in the kolong
bridge. It is voiced by Real Estate
Indonesia (REI) South Sulawesi (vide AntaraNews,
"The Sulsel community still needs a type 21 home", May 9, 2010) [Evidence P-33];
Simple home restrictions of at least 36 square meter
will incriminate small developers who build
house type 21 square meters. The type 21 market is still very
large and needs to be absorbed with home availability (vide
Business Indonesia.com, "Kemenpera kaji house limitation type 36", 03 November 2011) [Evidence P-34].
19.5. More open access to home and inhibit slums. Home building with a minimum floor area of 21 meters
square in addition and its market needs, and the thing
it becomes a factor in the size of the access to MBR groups for
out of housing issues and out of trouble
slum settlements in cities that each year increase
breadth.
In 2004 a total slums of 54,000 hectares,
to 57,800 acres in 2009 (the vide of the Ministry
43
People's Housing Plan, "Strategic Plan of the Ministry
People's Housing of the Year 2010-2014", in the Zulfi Syarif Koto,
"Housing of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, thing. 62) [Evidence P-35].
19.6. Lowering the backlog of housing development with the type 21 would
streamline home buying access and hence
slowing the escalation backlog, otherwise if pegged
with a wide minimum The 36metre floor floor will hamper
residential development and absorption and commitment
MBR group bought the house.
19.7. floor area 36 square meters of cheap home program housing development with a minimum floor area of 36 meters
square inhibits motion and home development targets
are simple healthy, by inhibit developers and
MBR group's serapy power. (vide ExposNews, "Cheap home program Sumsel fouled rules Kemenpera", Wednesday, 11 January 2012). [Evidence P-36]. In addition, it will inhibit the growth rate of development
home by a low-cost home developer (vide Wason Online, "January 2012, type 21 home sale terminated", 26 December 2012). While the contribution of developers and
societies build homes is the most important part of
home development targets.
19.8. Access to a PPN-free facility. Justification of the home floor area of at least 21 square meters is not
only affordable and low price will but base
obtain the Value Added Tax free facility (PPN)
pursuant to Article 2 of the Financial Ministers Regulation (PMK) Number
31 /PMK.03/2011, First Tax exemption policy bahah
Values (PPN).
For a Simple House and a Very Simple House
(RSS) is a home that is her perforated cash or
44
is financed with credit facilities, either subsidised or not
subsidised, or through financing based on the principle
sharia, which meets the provisions: (a) The area of the building is not
exceed 36 m² (thirty-six square meters); (b) the sale price
not exceeding Rp. 70,000,000,-(seventy million rupiah); (c)
It is the first home to be owned, used alone
as a residence, and not have been moved in
a term of 5 years since it is owned; [Proof P-37] So access acquiring a cheap house by an MBR group
is larger, and vice versa if with a floor area of 36 meters
square or more would not acquire a PPN free facility,
while the MBR group could not afford to buy a home let alone
without such facilities.
19.9. Open access to FLPP By purchasing a simple home type 21 then still
it is possible for MBR groups to acquire FLPP, because
it is access to get the house lighter. But if
is limited to a minimum floor area of 36 square meters, then not
affordable MBR group, and then could not
access the FLPP facility, whereas in the APBN Act determined
FLPP as a given subsidy to the people or
MBR group.
19.10. Overcoming the rarity and dowry of land/land The construction of cheap and prosperous homes for the group
MBR in addition to needed and appropriate group market purchasing
MBR, but that also corresponds to the fact of scarcity
and The price of the land, which is the rising factor
The price of a house that can be reached by the MBR group.
19.11. In accordance with the range indicator for acquiring the home rights in the International Covenant on EKOPAL The type 21 house with a floor area of 21 square meters in addition to
is the need for a new partner and is appropriate for purchasing power
MBR group.
45
This is juridis-formyl terms with the technical guidelines
home floor area (vide Decision Minister Settlement and
Prasarana Region Number 403 /KPTS/M/2002), will but also
agrees with the human rights aspect of the house, indicators (a)
purchasing power range (affordability); (b) availability
services (availability); (c) the opportunity of acquiring a home
(accessibility), and surely (d) is still viable and comfortable for
group of young couples (husband and wife as well as 1 child) which
a time could develop it or as a home
grows so it is still comfortable as a place to stay
(habitalility).
19.12. Aspiration acquires low-cost homes, to prevent MBR groups not enjoying home rights Type 21 home needs are not only still appropriate
market needs but are part of the aspiration
that develops for the get home and agree
with a policy that the government is developing
areas like cheap homes in South Sumatra.
With such conditions, it is no wonder if the Ministry
People ' s Housing assessees Indonesia is in a condition
housing emergency so it takes nintervention government
(vide Business Indonesia, "Indonesia in residential emergency", 13 December 2011). However, in the case of a housing emergency instead of regulation
and the norm Article 22 paragraph (3) Act No. 1 of the Year
2011 further inhibits MBR access and hence
increasingly making a residential emergency in Indonesia. This
agrees with the opinion of Zulfi Syarif Koto, which was once
being the top official of the People's Housing Ministry,
which by virtue of the data and the facts that there is
concludes that " ...development The people's housing is up to 65 years of independence; it turns out to be much more enjoyed by the upper middle society".
46
(vide Zulfi Syarif Koto, "Politics of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, matter. 48).
19.13. Infair with the treatment of different treatment for the flats, whereas the flats cannot be developed or not a home grow Conditions of home construction with a minimum floor area of 36
square meters are only applied to the home single and
house of the series, but it is not applied to the flats. By
therefore, for the flats can be built with a broad
floor of 21 square meters.
When, technically the flats could not be developed
became/as does the home grow, so that with
so the absence of injustice in the legal norm of Article 22
paragraph (3) of the Act No. 1 of 2011.
19.14. The type 21 house corresponds to the purchasing power and relevance of the spirit and norms of Article 54 verse (1) Act No. 1 of 2011 In juridical, the Government is obliged to meet the need
home to the MBR group is already affirmed in Article 54
paragraph (1) Act No. 1 of 2011. Even
provides ease of development and home acquisition,
but in the presence of Article 22 paragraph (3) Act
No. 1 of 2011 is precisely counterproductive in
housing development in particular to the group MBR;
19.15. House type 21 corresponds to residential asas and settlements in Act Number 1 of 2011. With the type 21 home will open the group access
MBR acquires the house and suits its stripes. Based on
the housing principle and the settlement area in the Invite-
Invite Number 1 Year 2011 is satisfied to: (b)
fairness and alignment; (e) the reach and ease
as Section 2 Act Number 1 Year 2011.
47
20. That for the above reasons, the provisions of Article 22 of the paragraph
(3) Act No. 1 of 2011, not only violate the right
constitutional to obtain a residence, but also
resulting in and as a form of circumstances among others:
(a) The further exacerbation of the housing emergency the People's Housing Ministry has put forth. With Article 22 paragraph (3) Act No. 1
Year 2011, resulting in lower access to low-cost homes, slums of slums,
escalation backlog , home development target
cheap will plummet, unsaluted facilities and help
like FLPP, free PPN, PSU help to developers
subsidized homes, indebted assistance to
swadaya houses in size below 36 square meter for
obtaining new repair and development assistance as well
help certificate rights to the land, and so on;
(b) Be the fact that the policies and norms developed are not pro poor and are not oriented to make it easier to access MBR group access with the existence of Article 22 of the paragraph (3) Act No. 1
In 2011, resulted in a poor people group of 29.89% (according to BPS data) and the MBR group not
capable of moving to gain access and make
commitments buy cheap homes and subsidization;
(c) This state is inconsistency or counterproductive with Article 54 paragraph (1) Act No. 1 of 2011. With Section 22 paragraph (3) Act No. 1
Year 2011, resulting in a counterproductive state for the fulfillment of a Government liability juridically
already determined that the Government is required to meet needs
home to the MBR group defined in Article 54 paragraph
(1) Act Number 1 of 2011.
48
(d) It is inconsistency with the principle of No. 1 Act 2011 among other things are cadian principle and alignment and asas of reach and ease;
(e) This state inconsistency with the President's Directive. (f) The circumstances are inconsistency with the cheap home program
for the poor. (g) This state does not support a subsidy program or
the FLPP financing facility. 21. That thus the provisions of Article 22 paragraph (3) of the Act
Number 1 of 2011 reads "Single home floor and
the series house has the least size 36 (thirty-six) meters
square" is impeding the fulfillment of the constitutional rights over the house and therefore clearly contrary to Article 28H of the paragraph (1)
Constitution of 1945;
22. That based on the above reasons, the applicant pleads
sudilah may the Supreme Court of Justice of the Constitutional Court
state the provisions of Article 22 paragraph (3) Act No. 1
The year 2011 reads " The broad floor of the house single and home
series has the least size 36 (thirty-six) meters
square " contrary to Article 28H paragraph (1) of the 1945 Constitution;
23. That for those reasons above the applicant pledging
sudilah may the Supreme Court of Justice of the Constitutional Court which
examine, prosecute and decide a quo
cert the provisions of Article 22 of the paragraph (3) Act Number 1
In 2011 that reads "The single home and home floor area
series has at least 36 meters (thirty-six) meters
square", does not have any legal powers. binding;
B. Dalil-dalil that the provisions of Article 22 paragraph (3) of the Act No. 1 of 2011 impede the fulfillment of private property rights to housing as a constitutional right under Article 28H of the paragraph (4) of the Constitution of 1945. 24. That constitutionally each person has the right to reside,
explicitly listed in Article 28H of the paragraph (1) of the 1945 Constitution, which
further reads as follows: "Everyone has the right to live
49
prosper born and inner, residence, and get
environment is good and healthy as well as entitled
health care";
25. That the right to house for residence is the right
the constitutional right to have a personal right
guaranteed in Article 28H paragraph (4) of the 1945 Constitution;
26. That the right of housing guaranteed in Article 28H paragraph (1)
Constitution of 1945 as well as in Article 40 of the Act 39/1999, also agrees
with the right to build, acquire and own the property
home to residence as a property of the property. personal to home, which
constitutionally guaranteed in Article 28H paragraph (4) of the 1945 Constitution
that reads, "Everyone is entitled to a personal property and
The property should not be taken over. arbitrary
by anyone";
27. That thus every person or citizen
has a constitutional right to build, buy and
have as a personal property rights to the unit of the house, in any
any form, whether it is a single house or the home of the series,
or the flat house [vide Article 22 paragraph (2) Act Number
1 Year 2011]. Similarly, any person or citizen
society has a constitutional right to build,
buying and owning as a personal property for the home unit whether
establishing itself or a self-service, or type. home that
qualified as a commercial or public house.
By virtue of Article 28H verse (4) The 1945 Constitution is no hindrable
constitutionally constitutionally for any person or citizen
build, buy and have a home unit of any kind
and with any form, including of course with the floor area
regardless of the needs and capabilities;
28. That as a landowner or land owner is entitled to use it
to build a home home, with any land area
whatsoever, so that there is a provision of Article 22 of the paragraph (3) Invite-
Invite Number 1 Year 2011, not only blocking the use
50
and utilised the personal proprietary rights guaranteed in Article 28H
paragraph (4) of the 1945 Constitution, but also result:
28.1. It is not used or intracting the land area in the
below 36 square meters, so it becomes capital dead or
unoptimised its economic value, and
therefore poses an injustice in the chance
gain revenue;
28.2. Unuseable or intractable land in the region
settlements are below 36 square meters, so
accumulated land area below 36 square meters but
it cannot be developed into a home, so very
may be the slums of slums and ca n' t
optimized its economic value;
28.3. Circumstances as the letter (a) and letter (b) above, in
a constitutional juridical perspective into a disturbed causal
the rights to the property protection that are under
the power of any person or citizen of the society guaranteed
in Article 28G paragraph (1) of the 1945 Constitution;
29. That is due to the constitutional right to have proprietary
private, including in this personal property rights to the house that
guaranteed Article 28H paragraph (4) of the 1945 Constitution, then there is no reason
constitutional for obstructing and prevent or prohibit any
people or people of society build, buy and own
home with any floor area provided with/up
the rights and rightful ownership;
30. That in connection with Article 22 of the paragraph (3) of the Act
Number 1 of 2011 reads "The single home floor area and
the series house has the least size 36 (thirty-six) meters
square. ", then thus:
30.1. Constitutionally cannot make any restriction that
impede any person's right to obtain a personal property
to the home of the residence, where the rights to personal property
it is a constitutional right to which it is free.
guaranteed Article 28H
paragraph (4) of the 1945 Constitution,
51
30.2. Under Article 36 of the paragraph (1) Act 39/1999, each person
reserves the right to have a personal property as human rights so that
provisions of Article 22 of the paragraph (3) Act No. 1 of the Year
2011 should not be an impediment to any person for
acquired a personal property of the home rights for the place
stay.
31. That the right to build and have a house as a property
private is a constitutional right that is explicitly guaranteed Article
28H paragraph (4) of the 1945 Constitution, then any person or citizen
has the independence to Have a house, though.
The floor area is less than 36 square feet. If people or citizens
society only has less than 36 square meters of land,
then the constitutional juridically should not be impediated or reduced
the right to build a house in the type and size of the floor.
Whatever.
32. That the restrictions or obstruction of independence of any person or
citizens have personally or private property rights over
the home may only be with a minimum floor area of 36 square meters,
is in violation of the constitutional right which are guaranteed in Section 28H
paragraph (4) of the 1945 Constitution;
33. That thus the provisions of Article 22 paragraph (3) of the Act
No. 1 Tahn 2011 that reads "Single home floor and
the series house has the least size 36 (thirty-six) meters
square" iscontrary to Article 28H of the paragraph (4) of the 1945 Constitution;
34. That based on the above reasons, the applicant pleads
sudilah if the Supreme Court of Justice of the Court stated
provisions of Article 22 of the paragraph (3) Act No. 1 of 2011
that reads " The breadth of the single home floor and home of the series has
at least 36 (thirty-six) square meters "
contrary to Article 28H paragraph (4) UUD 1945;
35. That for those reasons above the applicant pleading
sudilah, the Supreme Court of the Court of Justice, who examined,
prosecute and decide the plea a quo states the provisions
Article 22 of the paragraph (3) of the Act The number 1 year of 2011 that reads
52
"The single home floor and series house has the most
size 36 (thirty-six) square meters", does not have the power
binding laws;
Dalil-dalil that the provisions of Article 22 paragraph (3) of the Law No. 1 of 2011 impede justice and fair treatment in fulfillment of the personal property of the estate which is a constitutional right under Article 27 of the paragraph (1) and Article 28D of the paragraph (1) UUD 1945 36. That the provisions of Section 22 paragraph (3) of the No. 1 Year Act
2011 that reads "Single home floor and series house
has the least size 36 (thirty-six) square meters",
is the condition or the legal norm in the Act that
limits the rights of each person over a residence or house that
secured Article 28H paragraph (1) of the 1945 Constitution, and also any person for
obtaining a personal property of the house for the place
stay as a personal property guaranteed Article 28H paragraph (4) of the Constitution
1945;
37. That each person is guaranteed a constitutional right to have
equal standing before the law, in this case the norm
Act of Article 22 paragraph (3) Act No. 1
Year 2011;
38. That the provisions of Article 22 paragraph (3) of the Law No. 1 of the Year
2011 are the forms of the distinction done by the law
that restricts any person or citizen to obtain
and or has the rights to the house that may only be if the floor area
at minimum of 36 square meters;
39. That is therefore the provision of Article 22 paragraph (3) of the Act
No. 1 of 2011 has created a distinction or
discrimination before the law to obtain a home for the place
the residence secured Article 28H of the paragraph (1) UUD 1945, and the right to have
home as a personal property guaranteed Article 28H paragraph (4) of the UUD
1945;
53
40. That the protection of any form of discrimination is the right
constitutional guaranteed in Article 27 of the paragraph (1) and Article 28D
paragraph (1) of the 1945 Constitution;
41. That the constitutional right for protection from discrimination or
known by nondiscrimination principles is universally guaranteed
in international instruments:
41.1. protection from discrimination is an asas or
a principle that is guaranteed in all human rights instruments
international that it becomes an asas or universal principle
(universal principle);
41.2. This non-discrimination principle is the principle of human rights that
universal as it consistently enters as a convention principle
such as Universal Declaration of Human rights, International
Covenant on Civil and Political Rights, and Covenan on
Economic, Social and Cultural Rights, Convention on
Elimination of All Form Discriminartion Against Women
(CEDAW).
Some human rights conventions define discrimination as
having a distinction (distinction), excommunication (exclusion),
restrictions (restriction) or option/considerations (preference),
which based on race (race), skin color (colour), gender
(sex), language (language), religion (religion), politics (political) or
other opinions (other opinion), social origin or nationalities,
poverty (proverty), birth or other status;
41.3. References to discrimination may also be cited from Article 1
International Convention on the Elimination of All Forms
Racial Discrimination, which gives the definition of "racial
discrimination", as follows:
"any distinction, exclusion, restriction or preference base on
race, color, descent or national ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
or exercise, on an equal footing, of human rights and
fundamentals freedoms in the political, economic, social, cultural
or any other field of public life".
54
41.4. The definition of discrimination may be obtained from Article 1 of item 3 of the Act
39/1999 which reads as follows:
"Discrimination is any restriction, harassment, or
Direct or indirect excommunication is based on
on human differentiation on religious basis, tribe, race, ethnicity,
group, social status, economic status, type
gender, language, beliefs, politics, that result
the reduction, deviation or deletion, recognition,
execution or use human rights and
basic freedoms in both individual lives and
collective in political, economic, legal, social, cultural
and other aspects of life";
41.5. Indonesia as a legal state (rechtstaat), adhering to
the principle rechtstaat including non-discrimination principles,
the equality of equality before the law.
Legal state Conception in the Anglo Saxon tradition
developed A.V. Dicey with the designation the rule of law, and
in the Continental European tradition, which among others was developed
Julius Stahl, Immanuel Kant, Paul Laband, and Fiechte, called
as rechtstaat, which later formulated Prof. Dr. Jimly
Asshiddiqie, SH, into the 12 principal principles of the law
which is the main pillars of the modern law state so that it can be. referred to as the State of the Law in the true sense of the principles of following: (1) legal supremacy (supremacy of law);
(2) (equality before the law); (3) asas legality (due process of law);
(4) power restrictions;
(5) the organs executive independent
(6) free and impartial judiciary;
(7) judicial system of state enterprises;
(8) state courts (constitutional court);
(9)of human rights protection;
55
(10) is democratic;
(11) serves as a means of realizing the country's goals
(welfare rechtstaat);
(12) transparency and social control;
42. That harmonization and adherence to international conventions
not only for the sake of legal harmonization, would be but
a constitutional compliance entity as a legal state (recht staat).
The Constitution of 1945 has given the perception of basic principles of human rights as one of the terms of the state of law, in particular the basic principles of human rights related to life and life and are
symbols or ikhtiar of the Indonesian nation in context make the UUD
1945 becoming increasingly modern and increasingly democratic UUD;
[vide Correctional Guide of the Constitution of the Republic of Indonesia in 1945, thing 144, published by the General Secretariat of the Assembly of the Assembly of Indonesia People, Jakarta, 2005]
[Evidence P-38]; 43. That by the provision of Article 22 paragraph (3) of the Act
No. 1 of 2011 it does not only incur any
different treatment before the law guaranteed in
Article 27 paragraph (1) of the 1945 Constitution, but also the form
different treatment in fulfilment of housing rights,
that is not warranted for housing rights for people or residents
a society that only owns or acquires a house with
floor area is not reaching 36 square meters;
44. That there is a provision of Article 22 paragraph (3) of Act No. 1
In 2011, it has been real not to concern objective conditions
varying ground prices between regions one with
other, between the island of Java and outside Java island, which is objectively
and notoir feiten is marked with a different difference in land price
per the value of the taxable object (NJOP).
With the land price disparity factor, the wide restriction
the minimum home floor of 36 square meters for the entire area in
Indonesia, instead ignores the land price disparity and
NJOP between regions in the Indonesia.
56
In addition to the provisions of Article 22 paragraph (3) Act No. 1
The year 2011 does not consider the area of the place
built home with its factuality differences in the index of maturity.
construction, tanah/land price index, perijinan costs, purchasing power,
income level differences or wages (indicated by
differences in the Provincial Minimum Index or UMP, inflation rate,
and so on).
It implicates on the onset of the fact the difference of treatment in
access obtained constitutional rights over the house;
45. That in the presence of such different treatment then
resulted in the onset of a violation of the constitutional right to
obtain the same treatment before the guaranteed law
in Article 28D paragraph (1) of the 1945 Constitution;
46. That based on the above reasons, the applicant pleads
sudilah may the Court of Justice of the Supreme Court declare
provisions of Article 22 paragraph (3) Act No. 1 of 2011
"The breadth of the single home floor and the house of the series has the most
size of 36 (thirty-six) square meters ", contrary to
Article 27 of the paragraph (1), Article 28D paragraph (1) of the 1945 Constitution;
47. That for those reasons above the applicant pleading
sudilah may the Supreme Court Justice of the Court which
examine, prosecute and decide a quo
cert the provisions of Article 22 of the paragraph (3) Act Number 1
In 2011 that reads "The single home and home floor area
series has at least 36 meters (thirty-six) meters
square", does not have any legal powers. binding;
D. Dalil-dalil that the provisions of Article 22 paragraph (3) of the Act No. 1 of 2011 are not pro-poor and there is no legislative ratio so that it becomes an obstacle to the fulfillment of housing [Article 28H paragraph (1) of the Constitution of 1945] and to have a personal property [Article 28H verse (4) UUD 1945] 48. That the right to a residence is the right to a housing estate is the right
of any person who is a constitutional right in Article 28H
57
paragraph (1) of the 1945 Constitution, and as well as human rights, is recognized
unilaterally in various international human rights instruments;
49. That the right to the housing is a right that is still not
earned evenly and fairly by the MBR group so that
is impeded with the opportunity to enjoy the constitutional right
over the house for the residence;
50. That in the absence of simple housing development that
is aimed at the people or residents of the income
the low, factually it has helped each person or
its main citizens who are in income. low for
have a home. This circumstance may be put forward with the evidence
submitted in this plea;
51. That any person or citizen of the community entered in
the MBR group's qualifications in addition to have limitations
in earnings to buy (purchasing power) and have
home so it is very rational if many poor citizens and
MBR groups that are or reside in the area
slum settlements with narrow land area. Thus
factually these MBR groups increasingly need to be facilitated by
States with regulations encouraging the fulfillment of the upper right
home a quo;
51.1. That in addition to formal house construction, as
is put forward, in Act No. 1 of the Year
2011 also recognized house-building swadaya
(swadaya houses) by any person or citizen.
The construction of the swadaya is precisely recognized and
should be encouraged with the No. 1 Act
in 2011, and by virtue of the right
the constitutional top for the residence [Article 28H
paragraph (1) UUD 1945], and constitutional rights to have
personal property (including over house) [Article 28H verse (4)
UUD 1945]. Thus, then:
There is no reason and a constitutional basis that
impeded or reduced any person or citizen
58
the public to build and own the house
swadaya as a residence includes
independence in determining how wide the floor is
required;
51.2. No reason and constitutional basis impeded
or reduced any person or citizen to
build and own a house swadaya as
a place to stay on the land of its own, which could be only
the area does not reach 36 square meters;
51.3. Because of the expensive land prices in particular on the island
Java, let alone in urban areas, then either
objective of the MBR economy and based on
the constitutional juridis, there is clearly no reason to
inhibits or reduces any person or citizen
the public to build and own swadaya
home as a residence on its own property,
which could have been an area of not reaching 36 square meters;
51.4. Because of the inheritance or density factor of the region
and the environment, in the residential area it is very possible
there is a land/land area that does not reach 36
square meters. In such an objective condition, it is
unwarranted and violates the constitutional right of
a personal property [Article 28H paragraph (4) of the 1945 Constitution], with
there is a limitation of land/property rights belonging to the property
private It was to build a house with Article 22
paragraph (3) Act No. 1 of 2011;
52. That the above is in addition to being a causal of the debate
the acquisition of the constitutional rights over the house, and it is not consistent
with the legal provisions and or encouraging policies
the construction of the swadaya house, by the The government could not afford it
providing housing without any home development
swadaya. For example:
52.1. Contributions or share masyakarat in house construction
swadaya is larger than the government (vide Ministry
59
People's Housing, Inforum Magazine, 3rd Edition of 2010, thing.
19) [Evidence P-39]. According to the Deputy Field Housing Swadaya Ministry
People's housing, currently the fulfillment of the house
swadaya reached 80% and the rest was formally fulfilled,
well it was by the developers, the foundation and the other (vide
Business Indonesia, "Kemenpera strong housing community swadaya", 1 December 2011).
52.2. The government's ability to build houses was only 0.2 million
home units, while private developers built 2
million home units and as many as 9.8 million home units were built
by the public or so-called swadaya houses. (vide Zulfi
Syarif Koto, "Politics of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, matter. 205).
[Evidence P-40]; 52.3. The swadaya house is the President's Directive to
give the housing stimulant a swadaya;
52.4. The Swadaya home is exactly the house that
can obtain the help and ease of the Government
which is guaranteed Article 21 verse (7) Act No. 1
2011, instead of which is instead inhibits with
forbids the construction of a swadaya home for the community
which only has a land of less than 36 square meters;
53. That thus the broad limits of the floor for each person
to build the home either single home and home series
as defined in Section 22 of the paragraph (3) Act Number 1
Year 2011 is the limitation of rights obtain a home, and
limiting the constitutional right to have with personal property
over the house [Article 28H paragraph (4) of the 1945 Constitution];
54. That a direct result of a minimum floor requirement is 36 meters
square for the single house and home of the series, then the citizens
is poor and the MBR group is not properly absorbed into
in the system and cannot create a Purchasing commitment to
60
has a home as a residence, resulting in
an injustice for the MBR group obtaining constitutional rights
over the house.
By because the property rights of the house also have a economic value as
property of wealth or capital, which is at once an investment
that is of high value than any other investment, then not
absorbed by poor citizens and MBR groups and group of citizens
poor to have a home, it is further results to:
54.1. Poverty against poor citizens and MBR groups, and
inhibits MBR productivity and hinder the acquisition
benefits for the capital value of home units (and land) that
should be owned.
54.2. impeded the huge potential revenue could be earned
by having economic growth in investment
home.
54.3. The quaking of structural poverty for the poor
and the MBR group is because it is not absorbed into the
housing system and cannot enjoy the benefits of
home ownership, as a result of the impediment of the barriers
of Article 22 paragraph (3) Act Number 1 of 2011.
Telaah and deep análysis on this point forward
Hernando de Soto as a capital mystery whose value could not be
was conditioned because it was not absorbed by the poor (could be
MBR) into the system Formyl housing and banking.
PROPOSED HERNANDO DE SOTO, AT THE POOREST.
POOR PEOPLE CAN STILL SURVIVE.
The value of savings among the poor is very large, 40 times that
help overseas received worldwide since 1945. In
Egypt, the wealth collected from poor people is worth 55
times greater than the entire direct investment (FDI) ever
is there. In Haiti, the total assets of the poor were more than 150 times
foreign investments that entered the country since independence Haiti
in 1804 (vide Hernando de Soto, "The Mystery of Capital", Qalam, 2006, hal.7).
61
55. That thus the provisions of Section 22 of the paragraph (3) Invite-
Invite Number 1 Year 2011 are not pro poor and therefore
contrary to Article 28H paragraph (1), Article 28H paragraph (4) of the Constitution
1945;
56. That the provisions of Article 22 paragraph (3) of the Law No. 1 Year
2011 that reads "The single home floor and the home of the series
has the least size 36 (thirty-six) square meters", not clear referrals and the legal reasons or the legis ratio of why
dinorate into a bare minimum floor area of 36 square meters, why
not 30 square meters, or 21 square meters, or 54 square meters.
The floor broad floor minimum floor of 36 square meters is not found the ratio
of his legislature both in the considerline and in the reference Invite-
Invite related, there is not even a legislative ratio if it refers
to the 1945 Constitution. Instead, contrary to Article
28H paragraph (1) and Article 28H paragraph (4) of the 1945 Constitution;
57. That thus the provisions of Article 22 of the paragraph (3) of the Invite-
Invite Number 1 of 2011 are referred to, there is no reference and not
clearly where the ratio of the legislature is, because of:
57.1. No referrals found in Act No. 1
In 2011 concerning the Broad Floor guideline for Home, whether
it was a single house, row house and house of flats,
so that the norm was speculative and technical, but instead
as an Act norm.
57.2. No referrals are found for why the floor area
is minimal only for a home with a single home form and
the house of the series, otherwise for a house unimposed
the minimum floor area of the minimum floor of 36 square meters in the Article 22
paragraph (3) Act No. 1 of 2011;
57.3. No reference found in the General Policy
Housing development in the General Description
Act No. 1 of 2011, so it is not clear
the legis ratio of Article 22 paragraph (3) Act No. 1 Year
2011;
62
57.4. No reference is found for why the
differentiator or determinate in the size of the home may
is based on the floor area, why not
based on room facilities, building capacity and volume,
The strength and security of the construction, or physical stándar or
precisely the safety and security factors that
its route is clear in Article 38 of the paragraph (2) of the Act
No. 1 of 2011.
57.5. Home building references are already explicitly
specified in BAB V (Housing Housing),
Fourth Section (Housing Development), Paragraph 2
(Home Development), which is in Article 38 of the paragraph (1)
Act No. 1 Year 2011 distinguates
home development of single home, series house, and
house building.
Home construction according to the provisions of Article 38 paragraph (1)
Act Number 1 of the Year 2011,
developed by reference or the clear and limitative ratio of legis
Typology, ecology, culture,
economic dynamics in each region, and consider
safety and security factors (Article 38 of the paragraph (2) Invite-
Invite Number 1 Year 2011.
By referring to such provisions, it is very clear and bright
that there is no reference to house development (whether it is single
and the house of the series or the house of flats), based on the
floor-wide factor. Moreover, the reference to the home development
is formulated in a limitless formulation in Article 38 of the paragraph (2)
Act No. 1 of 2011.
57.6. The provisions of Article 22 paragraph (3) of the Law No. 1 of the Year
2011 govern the form of a house or shape of house,
which is included in the systematics of BAB V (Your Sponsorship
Housing), the Second Part (Type and Form of Home). By
as it is not set about the size of the house of the area
the floor of the house;
63
57.7. Quod non, single home floor area and minimal series house
36metre square is both relative and speculative by
because it depends on the needs and utilization of the home
as a function of occupancy, which is not absolute be used only
by large families, but could be by a new partner or
individual person alone or single [vide Article 50
paragraph (1) Act Number 1 of 2011].
57.8. Section 22 paragraph charge (3) Act No. 1
The year 2011 is not as opposed to the right
constitutional article 28H paragraph (1) and paragraph (4) of the 1945 Constitution, will
but also its material is set up to be a set of things that are
is very technical. It should not go into and be
the norm of the Act. Even Section 22 of the paragraph of charge
(3) of the Act No. 1 of 2011 is not only
has no constitutional justification, but also does
have a sociological justification, and formyl justification-
juridis (due to not being duly admitted to the norm
Act);
58. That the provisions of Article 22 paragraph (3) of Act No. 1 of the Year
2011, instead restrict the keswadayaan of any person or citizen to build on their own expense for
independently owning a home. This situation led to an impediment to
any person or citizen to use the right
constitutionality guaranteed by the 1945 Constitution, namely:
58.1. The right to swadaya acquire or build
home as a residence, in the form, size and extent
-any floor as per land-owned land/land,
volume/capacity and financing capability.
In There is a barrier to build and have a home
with a floor area below 36 square meters, is the form
violation of constitutional rights over residence that
guaranteed Article 28H paragraph (1) of the 1945 Constitution;
58.2. The right of every person or citizen to
swadaya acquires or build a house as
64
residence, and as a personal property, both in
form, size and extent of any level as wide as
land owned, volume/capacity and capability
financing, may not be inhibits because it is the right
constitutional rights for the personal property guaranteed in the Article
28H paragraph (4) of the 1945 Constitution.
In the event of an obstacle using land land
less than 36 square meters to make a home and
having a private property rights over the house, is the form
a violation of constitutional rights over a private property that
affirmed in Article 28H paragraph (4) of UUD 1945;
58.3. The right of each person or community citizen to
swadaya acquires or build a house as
residence, is justified and absah if driven and
optimised instead of the exact opposite of
inhibits with Article 22 paragraph (3) Act Number 1
Year 2011.
By because of the Government as a party
responsible for providing housing and the region
settlements are still not able to reach the target
housing development of the people from year to year,
so that backlog percentages are increasing,
as the following facts:
a) escalation of the backlog rate continues to increase (in 2009
as many as 7.4 million home units; the year 2010 reached 8.4
million home units). While 2002 that
targeted 130,000 units of the home but its realisation
only 39,979 units were home. In 2003, up to the month
September 2003 realized only 59,275 home units from
target plan 90,000 home units (vide daily Kompas, 13
February 2004. See also, Djaka Suhendera, "Certificate of Land and Poor Person-Implementation of the Project of Ajudikasi in Kampung Rawa, Jakarta", Publisher HuMa,
65
Van Vollenhoven Institute, and KITLV-Jakarta, Jakarta,
2010, hal.5) [Evidence P-41]; b) Indonesia requires a home extension of about 700
thousand home units per year under assumption growth
residents of 1.3 percent (vide "Indonesia need 700 thousand homes a year", vivanews, 20 October 2010) [Evidence P-42];
c) Indonesia lacks the number of home units as much as 13.6
million units. (see kompas.com, "The optimistic government provides 100,000 home units", December 19, 2011) [Evidence P-43];
d) The housing problem or occupancy is not just a lack
number of home units but also its weak problem
capabilities The community buys because there's a gap that is
between the people's purchasing power at market prices.
(vide " Indonesia needs 700 thousand homes a year", vivanews, 20 October 2010) [Evidence P-44];
e) About 8 million households in Indonesia that are not
occupy the habitable home that is mostly
MBR group (vide Magazine "Inforum" Issue 3 Year
2010, Ministry of People Housing, matters. 12-13. [Evidence P-45];
f) Realization of the people's housing development targets only
40 s.d 50% which if applied to section 22
paragraph (3) Act No. 1 of 2011 will
result in increased backlog or deficit
housing reaches 46.8 million home units (vide Business
Indonesia, " Potential housing deficit is up", 19 January 2012) [Evidence P-46];
For the above reasons, the provisions of Article 22 of the paragraph
(3) 2011 Act No. 1 became a factor
increasing backlog, so it inhibits any
people or people of the public to acquire a home
66
as the residence secured section 28H paragraph (1) UUD
1945.
59. That the public swadaya in building and providing
home alone has a role and share more quantitative
is greater than the Government's ability and or
the developer, therefore not allowed. Independence inhibits
every person or citizen is building a home and
owning a home that is a constitutional right and human rights.
The role of society in housing development is very large
compared to government and private, where in the 10
last year there was an increase in the number of homes of more than 12
million units, where the government was only was able to build up 0.2 million
home units, while private developers built 2 million
home units and as many as 9.8 million home units were built by
the community or the so-called swadaya home.
(vide Zulfi Syarif Koto, " Politics of Housing Development in the Reform Era-Who Gets What?", LP3I and the Housing and Urban Development Institute (HUD), Jakarta, 2011, matter. 48).
60. That in relation to the home of the swadaya, it is not appropriate if
legal norm Article 22 paragraph (3) Act No. 1 Year
2011 governs the rights of any person or citizen to
have and/or build a house with a large amount of the minimum floor of 36
square meters, therefore the legal
private area, provided that it does not contradictory to the appropriate
technical according to the specified rules.
Thus then the norm is laws regarding minimal floor area
for single house and home series or home form anything,
should not be set to be the norm of the Act but
technical provisions relating to the establishment of home development.
61. That for those reasons above the applicant pleading
sudilah may the Supreme Court Justice of the Court which
examine, prosecute and decide a quo
cert the provisions of Article 22 of the paragraph (3) Act Number 1
"The single home floor and home
67
the series has at least 36 (thirty-six) meters
square ", contrary to Section 28H paragraph (1) and Section 28H
paragraph (4) of 1945 Constitution;
62. That for those reasons above the applicant pleading
sudilah may the Supreme Court Justice of the Court which
examine, prosecute and decide a quo
cert the provisions of Article 22 of the paragraph (3) Act Number 1
In 2011 that reads "The single home and home floor area
series has the least size 36 (thirty-six) meters
square", does not have any power a binding law.
IV. The Constitutional Loss of the Applicant To ensure the existence of constitutional losses arising as
due to the provisions of section 22 paragraph (3) Act No. 1 of the Year
2011, the following is given an example of a case as following:
1. That is based on data and control and explanation in advance,
there is a constitutional disadvantage of the MBR group's citizens
as a result of Article 22 of the paragraph (3) of the No. 1 Act 2011,
that is the interchange of access to housing for the residence, and
loss of potential income from functioning home acquisition
as an investment and assurance of the community ' s old days of life so
poses a measurable loss and eliminate rights
constitutional and human rights over the home for the residence;
2. That the applicant has a consern and
real work to build housing for the MBR group
in doing so with the above reason it has a loss
consittional and executable its mission and vision establishing
housing for MBR groups or poor communities;
3. That is because of one spirit and the idea of establishing APERSI
is to help build changes to the group
MBR that is therefore a vision, mission and purpose of a different establishment
with the venture perpetrator or developer who only profit-oriented
and work on housing development for the group
high-income;
68
4. That is because as a stakeholder or stakeholder
of the Number 1 Act of 2011 then APERSI as
The applicant has constitutional interests and rights as well as
the constitutional interest in accordance with the vision and mission as well as the goals
APERSI that should be guaranteed in Act No. 1 of the Year
2011 this;
5. That because of the barriers to the acquisition of the rights over the house,
the housing development has been its achievement in its achievements,
especially if it is quantified as a fulfillment of fulfillment
rights over the house for the residence;
6. That please please the Assembly of Justice of the Constitution of His Majesty
mutatis-mutandis takes over the reasons in the section/number 17,
18, 19, 20, and 28, number 52, number 53,
55, number 58, number 58, and number 59 for the reasons of
the constitutional loss of the applicant;
7. That based on the facts above, it is clear
there is a real and potential constitutional loss and can
be taken into account so that it raises the reason for the juridis to submit
test application The material, and the cells, obtained an amar
verdict directed to the Assembly of Justice of the Constitutional Court
that checks, prosecute and decides the case a quo.
V. Petitum Based on the reasons for the request of the Invite-
test above, regarding Section 22 of the paragraph (3) of the Act
No. 1 of the Year 2011, with all due respect to us
submit Request that the Supreme Court of Judges
The Constitutional Court is to examine, prosecute, and decide
case for a quo by loading the verdict with amar as
following:
Primary: (1) Declaring the provisions of Article 22 paragraph (3) Act Number 1
The Year 2011 reads " Single home floor and home
series has at least 36 meters (thirty-six) meters
69
square ", contrary to Article 28H of the paragraph (1), Section 28H paragraph
(4), Article 27 of the paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution;
(2) Declares the provisions of Article 22 of the paragraph (3) of the Act Number 1
In 2011 that reads "The single home and home floor area
the series has at least 36 meters (thirty-six) meters
square", does not have binding legal power;
(3) Command the loading of this ruling in the Republic News of the Republic
Indonesia;
Subsidair: Please the verdict is as fair (ex aequo et bono).
[2.2] Draw that to prove its control, the applicant has
submitted a written proof tool given the Proof of P-1 to the Proof P-
46, as follows:
1. Proof P-1: Photocopy Akta Notary Number 13 dated 08 March
1999, by Yohansah Minanda, SH, Notary in Jakarta
about the Establishment of the Home Developers Association
Simple/Very Simple Indonesia;
2 Evidence P-2
: Photocopy Act No. 1 of 2011 on
Housing and Settlement Areas (Sheet
State of the Republic of Indonesia 2011 No. 7);
3 Evidence P-3: Photocopied APERSI Profile;
4
Evidence P-4: Photocopy of the daily Kontan News, on January 19, 2012,
with the theme, "Wajib Bangun Type 36, Property Business
Lesu";
5 Evidence P-5: Basic Budget Photocopy (AD) and Home Budget
Steps (ART) APERSI (Physical Evidence merge) with Evidence
P-7);
6 Evidence P-6
: Photocopied News from Kompas.com, dated 4 Mai 2011,
"APERSI Bangun 1,000 Home Murah Rp 25 Million"
7 Evidence P-7: Basic Budget APERSI (Physical Evidence merge
with Proof P-5);
8 Evidence P-8: Photocopy News in Inforum Edition III Year
2010, World Habitat Day 2010 theme;
70
9 Evidence P-9: Photocopy Book "Correctional Guide of the Invite-
Invite Basic State of the Republic of Indonesia in 1945",
published by the General Secretariat of the Assembly
The People's Offer of the People, Jakarta, 2005 (Physical evidence
joining Proof P-38);
10 Evidence P-10: Photocopy Beita/inscription from Oswar Mungkasa, "Seflash
about Housing as Human Rights", in
Magazine Inforum, Ministry of Transportation People, Issue 1
Year 2010;
11 Evidence P-11: Photocopy of the book is written Djaka Soehendera "Certificate of land
and Miskin-Pelakwah Project Ajudikasi di
Kampung Rawa, Jakarta". Publishers HuMa, Van
Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010,
(Physical evidence joined with Proof P-12, Proof P-25, and
Proof P-41)
12 Evidence P-12: Photocopy Book written by Djaka Suhendera " Certificate
Land and Poor People-Implementation of Project Amcdikation
in Kampung Rawa, Jakarta ". The publishers HuMa, Van
Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010,
(Physical evidence joined with P-11 Evidence);
13 Evidence P-13: Photocopy News Kompas.com, "Simple House
Constraint Land Price", 10 November 2009;
14 Evidence P-14: Photocopied News published Vivanews, October 20,
2010 titled "Indonesia needs 700 thousand homes a year"
(Physical evidence is joined by P-18 Evidence, P-20 Evidence, Evidence
P-42, and Evidence P-44);
15 Evidence P-15: Photos of the Ministry of People's Housing, "Press
Release Reflection End of the Year 2011" (Physical evidence joined
with Proof P-26);
16 Evidence P-16: Photocopy News from www.kemenpera.go.id, titled
" MBR Access to possess home must be ranked "
accessed on December 29, 2011 (Physical evidence
join proof P-17);
17 Evidence P-17: Photocopy News from www.kemenpera.go.id, titled
71
"MBR access to have a home must be ranked"
accessed on December 29, 2011 (Physical evidence
join Proof P-16);
18 Evidence P-18: Photocopy News from Vivanews, October 20, 2010
titled "Indonesia needs 700 thousand homes a year" (Evidence
physical joining Proof P-14);
19 Evidence P-19: Photocopy News from Kompas.com, " The Government is optimistic
provide 100,000 units of the house ", December 19, 2011 (Evidence
physical merge with Proof P-43);
20 Evidence P-20: Photocopy B3rita of Vivanews, October 20, 2010
entitled "Indonesia needs 700 thousand homes a year" (evidence
physic merge with Proof P-14);
21 Evidence P-21: Photocopy News of the Magazine "Inforum" 3 Year Edition
2010, the Ministry of People ' s Housing, the thing. 12-13 (Evidence
physical merge with Proof P-28, and Proof P-45);
22 Evidence P-22: Photocopy Business Indonesia, "Indonesia in emergency conditions
housing", December 13, 2011.
23 Evidence P-23: Photocopy Daily News Kompas, nicknamed "middle class
has not been a strategy", 23 December 2011, hal.17
24 Evidence P-24: Photocopy of Financial Meneri Regulation (PMK) Number
31 /PMK.03/ 2011 on the Second Amendment
Financial Minister Regulation Number 36 /PMK.03/ 2007
about Simple House Limits (RS), Flats
Simple, Boro Cottages, Dormitory Students and
Students as well as other Housing, top
The raid is exempt from the Tax Introduction
Value Added (Proof of physical with Evidence
P-37);
25 Evidence P-25: Photocopies Book written by Djaka Suhendera, "Certificate
the Land and Persons Miskin-Pelakers Project Ajudikation in
Kampung Rawa, Jakarta", Publisher HuMa, Van
Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010,
page 5 (Physical evidence is joined by P-11 Evidence);
26 Evidence P-26: Photocopy of the Ministry of People's Housing, " Final Reflection
72
In 2011, the Mission, Purpose and objectives of Renstra
The People's Housing Ministry of the Year 2010-2014 (Evidence
physical merge with Evidence P-15);
27 Evidence P-27: Photocopy News from Magazine "Inforum" Edition 1 Year
2010, Ministry of People ' s Housing, matters. 7.
28 Evidence P-28: Photocopy News Magazine "Inforum" Edition 3 Year 2010,
The Ministry of People's Housing, page 13 (physical evidence
join Proof P-21);
29 Evidence P-29: Photocopy News Magazine "Inforum" 2010,
The Ministry of People's Housing, matters 12-13
30 Evidence P-30: Photocopied News Magazine Inforum, "The importance of the Program
The Ensign of Home for the PNS", Edition 1 Year 2010,
The Ministry of People's Housing, matters. 32).
31 Evidence P-31: Photocopied Daily News Kompas "Revised area",
25 November 2011.
32 Evidence P-32: Photocopy of the Minister of Settlement and Prasarana
Region Number 403 /KPTS/M/2002.
32 Evidence P-32A: Photocopy of the instruction book published by the Department
Settlement and Prasarana Region, Directorate General
Housing and Settlement, " Guidance Implementation
Development and Simple Home Financing
Healthy (Rs. Sehat/RSH) with Facility Support
Housing Subsidies ", Jakarta, May 2003, hal.4.5.6.
34 Evidence P-33: Photocopied News Antara News, titled "Sulsel Society
still needs a type 21", 9 May 2010.
35 Evidence P-34: Photocopy of Business News Indonesia.com, titled
"Kemenpera kaji house boundary type 36", 3 November
2011.
36 Proof P-35: Photocopy Book written by Zulfi Syarif Koto, titled
"Political Housing Development in the Reform Era-
Who Gets What?", page 62 (Physical evidence merge
with Proof P-40);
37 Evidence P-36: Photocopy News Exposnews titled "Home program
cheap Sumsel fouled by Kemenpera rules", January 11
73
2012.
38 Evidence P-37: Photocopy of the Financial Eri Ordinance (PMK) Number
31 /PMK.03/ 2011 (Physical evidence joined with Proof P-24);
39 Evidence P-38: Photocopy Book " Correctional Guide Invite-
Invite Basic State of the Republic of Indonesia 1945 ",
hal 144, published by the Secretariat General of the Assembly
People's awares, Jakarta, 2005 (physical evidence
join Proof P-9);
40 Evidence P-39: Photocopied News of the InforumMagazine, published
The Ministry of People's Housing, 3rd Edition of 2010,
hal. 19;
41 Evidence P-40: Photocopy Book written by Zulfi Syarif Koto, titled
"Political Housing Development in the Reform Era-
Who Gets What?", page 205 (Physical Evidence merge
with Proof P-35);
42 Evidence P-41: Photocopy of Buktu written by Djaka Suhendera, "Certificate
Land and Poor People-Implementation of Project Aaides
in Kampung Rawa, Jakarta", Publisher HuMa, Van
Vollenhoven Institute, and KITLV-Jakarta, Jakarta, 2010,
page 5 (physical evidence is joined by Proof P-11);
43 Evidence P-42: Photocopy News vivanews, titled "Indonesia needs 700
thousand homes a year", 20 October 2010 (Physical evidence merge
with Proof P-14);
44 Evidence P-43: Photocopy News Kompas.com, " The optimistic government
provides 100,000 units of the house ", 19 December 2011 (Evidence
physical merge with Proof P-19);
45 Evidence P-44: Photocopy News" Indonesia needs 700 thousand homes
a year ", 20 October 2010 (Physical evidence merged with
Proof P-14);
46 Evidence P-45: Copy of News Magazine Inforum, Ministry
People's Housing Edition 3 Year 2010, pages 12-13
(Physical evidence joined with Proof P-21);
47 Evidence P-46: Photocopy News Business Indonesia, " Housing deficit
potentially up ", 19 January 2012
74
In addition, the applicant also submitted 4 (four) experts and 2 (two)
witnesses heard in front of the trial on 22 March
2012, April 17, 2012, and April 25, 2012. At this point
as follows:
The applicant 1. Zulfi Syarif Koto
That we are free to this day, the spirit for housing
the people are very high, both from the Government, the business world and
society, in particular the colleges in college (so philosophical);
That Act commitments in the field of PKP from 1992 to
now its spirit is fixed how we can grazing
the people in particular MBR whose home is decent and affordable;
That PKP Act It now has a lot of excess.
rather than the Old Law, and also have a weakness;
Some of its flaws are the current ones at judicial review by
friends of APERSI are regarding the bare minimum of building 36 m²;
That at the time of the first people housing congress in Bandung, Man
Hatta said, "One healthy house for one family";
That housing is a basic right. Housing the MBR is not easy,
lower rules are required to house because of the IKKT and
IKKN each area is not the same.
To house the MBR should involve all parties, the Government,
the business world, and the college;
That the expert suggested the extensive treatment of building floors of at least 36
could not be blunder across Indonesia, and there should be an intervention
government;
That the expert proposes to be given obligations only for the home
general, special house, and home country whose home of the APBN is,
APBD, or others. For the public home Perumnas is designated
to perform its tamper;
That the expert suggested if possible, Article 22 verse (3) is omitted
only, because the housing business is an area affair;
75
2. Ali Tranghanda
That the past two years have been a great deal of policy and the Invite-
Invite is actually counterproductive with the Government's vision for
reducing backlog housing;
That if we see Such problems in the mass media mention
that this year if nothing changes, it may be a bleak year for
the people's house. When the Act was created, the expert questioned
the government and the House of Representatives to MBR (Society
Low-Income). Because the Act is not
due to appear, and when it appears, instead gives a problem
another;
That in principle we from Indonesian Property Watch not not
agree with type 36, but when it is stated at Invite-
Invite will be a problem, due to each region, each province is different
with a matter of land price;
That the index of the materials between Jakarta and Papua is different,
there may be regulation under it, which is Government regulations that can
differentiate it, not in Undang-Undang;
That the Government and the DPR are waving if the Act,
in particular Article 22 of the paragraph (3), with a minimum restriction of 36 m²,
there is a mentioned aspect of welfare, but there is not a single word
that mentions an aspect of the range;
That if a welfare talk, it will question, welfare
that's who? Who's the type 36 in the world?
That when speaking an MBR home issue, it's good to personally
each think, if the income society is low, instead of
doesn't want to have a type 36 house, that's not the problem. They want to,
but it's hard to paint it. So the MBR does not want to have a home
type 36, but because its power does not exist. Type 21 to type 26, maybe
the difference is Rp 5.000.00-Rp 10,000.00, probably small for
in some people, but for low-income society it
is very difficult. This was compounded again with the Facility's subsidy scheme
The Housing Purchase Liquidity Scheme (FLPP), which would not want to be due to
in the Act there was a type 36 restriction, then in the scheme
76
The subsidy is subsidised, at least type 36
at a price below Rp. 70.000.00. It means that the subsidy program that
was for the MBR was again called into question, for whom is the subsidy
such? The existing government subsidy scheme is limited to type 36, and
it is actually the most likely subsidy so it cannot be subsidised;
That if it speaks matter of fact, the data is taken from BTN (Bank
Savings of State). When the subsidy program was dismissed, there were as many
16,000 ter-pending units at BTN and only 20% included the category at
over type 36. That is, the Government ' s vision to reduce backlog housing
of 16,000 units is only absorbed by 20%. That means that the government program is not
integrated;
That the conclusion is the PKP Act is already already in place
appears, in the presence of Article 22 paragraph (3) of the PKP Act, the Expert
requesting all parties without any means. blame anyone, though
his condition has made polemics and has become a new problem in
society and interferes with the home provision for MBR, for
looking objectively to the truth. To all parties do not be too
arrogant. If it is wrong, then it is fixed, do not blame who
for the provision of the people's house to be able to walk. Expert invoking Invite-
Invite Number 1 Year 2011 about PKP, in particular Section 22 of the paragraph (3)
should be removed;
3. Khairul Alwan Ar-Rivai Nasution
That the national Heroes of Tengku Umar, Imam Bonjol, and
Diponegoro why would they want to die for Indonesia? Because they
want to see the country go forward. A writing from Masdar F Mas'udi,
assulthonuzillullah fil ardh yaa wailaihikullumazlun. The ruler is
being the umbrella of God on the face of the earth. Therefore he should be able to
pedaling the persecuted people, not the rich people, but the people who
persecuted. In Article 22, Act No. 1 of 2011
is an MBR and a poor facir. The heroes left the country in order
The ruler must protect the oppressed people. Not protecting
foreign groups. Even in the amendment it is said, the sovereignty of the people
is in the hands of the people exercised according to the Basic Law.
77
By therefore the sovereignty of the people is everything and must
be implemented in any Undang-Undang;
That the sovereignty of the people must be reflected and implemented in spirit
and the contents of the law. Since the Law without a spirit is only
it is a procedural democracy. The sovereignty of the people must be
a top priority in realizing the country ' s unity state goal
Indonesia. There should be no substance and section as well as verses in the Invite-
Invite that can reduce and eliminate the sovereign ' s essence
the people. There must be a minimal price of the sovereignty of the people in any
Act. So, if the housing should be implemented
the minimum price, which is the minimum affordable by the people. If there is not,
then the Act does not reflect the sovereignty of the people;
That about the justice of the substance, if the expert refers to Alinea
First opening of the 1945 Constitution which states that independence
is Rights of all nations are associated with the Law which
The defendant can be interpreted to mean that the occupation is not done by
another nation, but it can also be done by the nation and the government is not
pro people. Because it includes making it difficult for the people to get
home. It can be interpreted as a government effort that does n' t matter to
its people. In the Second paragraph the opening of the 1945 Constitution is also said that
the struggle for the Indonesian independence movement has been up to the moment
which is happy and beyond. The struggle did n' t stop until
seized independence, but how to fill out independence. So
The product of the Act should be alert. It may often hear there
a section that can be sold. It should be investigated why there is a
number 36 out in the a quo Act. Although at first the word-
word 36 does not exist;
That in the Third paragraph the Opening of the Constitution of 1945, stated,
In the grace of God's grace and so on, if it decoded not just
the human being in need of a home, There's Baitullah. All homes
many Indonesians are facing a kiblat. Meaning there is a connection
the correlation between Indonesian houses of insan with Baitullah. Then
in the Fourth Quarter of the Opening of the Constitution of 1945, there is a state destination. Any
regime whatever, any regime he, whoever he is, and whatever party he is,
78
must be bound to the Fourth Quarter Opening of the Basic Law
1945 which contained the destination, i.e. protecting the entire nation
Indonesia and all of Indonesia's blood. How the nation could
forward and the people can be protected if the people cannot have a home, still
there are people who live in cardboard houses, and there are still people who are in
the train cars. Naisbitt just said with eight pillars
China, they ' ve been able to move forward. Even Kim Jong Un, nuclear already could
make North Korea advance. While we still discuss floor affairs
the ground;
That this is related to sulthon, relating to substance. There
the two writings, the first of Prof. Mahfud MD., from the Pak Farid book
Mas'udi, who said that the values of the substance are the ones sought from
on procedural values. He cited an expression al-ibroh fil
Islam bil jauhar laa fil mizhar. Even a sufi named Aljirahim
says that Al-Jauhar was in the deepest conscience. Conscience
The innermost is called the club's "ulul albab", which Cak Nur called
with the society civil society. Even Hamdan Zoelva in his book
Telaah Critical. Bambang Setyo also I quote, saying that
The Pancasila could not be seen directly like fast food directly
the terfoods, should be viewed asbabun The nuzul, asbabul hikayahof her. Why is he
born, and why it is disputed. This Act should also be seen in the background
behind it and its philosophy. Does this Act have a motive
exploiting the people and connotations to complicate the people? That
thing should be stopped;
That already definitely his test is how to build an
substantive justice. The very interesting expert also cites Al-Ghazali
in his book Al-Qistas Al-Mustaqim, which is called the balance sheet
justice. In order to measure the original gold, it requires mercury,
the logic is clear. To measure the gallant Assembly of Judges today,
requires gravity. If there is no gravity in this room, it will be like
on the moon, it will fly. It was the failure of the Assembly of Judges as it could walk
on the face of the earth, there was gravity;
That Al-Ghazali offered a basic concept, it turned out to be justice
The deepest substance was the deepest conscience called with
79
ulul albab. And that's when the reforms come, say the people of the civil civil
society;
The experts conclude that with the conditions of our society today, with
the purchasing power of the community today, with the hyper of the complexity Today's society,
and with the inability of the community, if it says at least 36,
then it will make the people more and more without a home;
That by December 31, according to the records, a new 0.39% housing destination
reached. How slow the government works, if not supported by
the association institutions such as APERSI. The APERSI base budget
has an exceptional idealism. There may not be an association
that directly has an ideological connotation like this. Usually if APERSI
business orientation is how to get profit? But their goal is to want
to strengthen the purpose of the Republic of the Republic of Indonesia, therefore
is not wrong if then legal standing APERSI reserves the right to submit
judicial review request this. Therefore if development affairs
the house is still waltated on the ground floor problem, when to talk about
household sovereignty, when to talk about prosperity and
wellbeing, as well as when to talk about excellence Nation. Already
a lot of people get a nobel prize, we just got the
olympian champion, it's still losing. Experts propose the concept of home
growing needs to be maintained because since the Minister of Cosmos Batubara, and
Akbar Tanjung, there are no troublesome concepts of the people like
at least 36 of these. It may have started from type 21 with the concept of home
growing, as the concept of 36 was clearly impossible to use for the people;
That the Expert offered a concept that its name holistic civilizations
the home of the people. The house turns out not to be a collection of semen and sand pools.
Home is a collection of beliefs and nationalisms. Hubrowaton minal
uman [Sic!], home is a collection of love and optimism. Because of that
do n' t we just talk the floor. Therefore we also need
revitalization of the housing function itself, do not
then house into a weak home as the Al
Quran, inna alhana buyut laa baitul anfog, The weak-weak home
is the spider house;
80
4. M. Yusuf Asy'ani
That Article 22 of the paragraph (3) of the No. 1 Act of 2011, which
states, " The single home floor and the house of the series have a measure
at least 36m². The explanation of this section of verse is quite concise, i.e., the verse
(3) is quite clear, meaning there is no further explanation. The implication
the execution of the contents of this section and the verse by the interim circles
its position against Article 22 of the Basic Law of 1945;
That the verse is imperative and binding for the whole
the people, and no loloid holes, let alone when associated with the Article
26 verses (2) that associate it with the requirements of the IMB issuer.
Nevertheless, this provision applies only to a single home and
the home of the series, and does not apply to the house of flats whose notes
the floor size is difficult to develop;
That broad restrictions on the floor as mentioned above that
based on the home unit, according to the expert opinion is not appropriate. One home
level of dissolubility over space area, may be highly determined by the amount
family member or its occupants. Because of this, in the expert opinion
if the Government will determine the floor area for occupancy, it should be
not by family per unit of the house. However, based on
the number of those families inhabiting the home, aliases are determined
limit per person;
That if the expert is not chilaf, the size of the floor area per person according to size
International is 9m² per People. So the size of the 36m² is suitable for citizens
which consists of four members. If there is one family that is not yet
given child and no helper, it does not accommodate the family-
The family is hitchhiked, it should not be prohibited from having a home spit
floor for example 21m², due to the area of space per person More than 9m².
Limit a minimum size of 36m², it feels to be very damning the people
duafa;
That better one family with one child has its own home
with a floor area of 27m², from on one 36m² floor size house, but
populated for example two families already had children, or one family
husband and wife with four children;
81
That if it is not wrong since the time of the Menpera Cosmos Batubara, it has been
being prescribed a core home program growing, it feels like this concept has not been
stated as not applicable. The house was grown or rate was a policy
friendly public on the duafa, where they were justified to
build a relatively small core home, with the sense the house was not
there was expanded according to Growth. For example the moments
increases with child birth;
That the rate concept is still relevant and deserves to be passed on in the middle of difficulty
the economy suffered by the duafa. Perhaps there will be a question,
is it by setting the 36m² limit, this one mistake? Here the Witness
does not discuss right or wrong, but which is better
between making the rules that make it difficult for the people and that makes it easier
for them? If it can be easy, don't be difficult. If
the government provides ease to the duafa, their confident
will be happier in their limitations. Unless, of course
only if we are in principle "If it can be difficult, why it is easier";
That in life in this world, the rules or verses that cannot be changed
is just the scripture of the Qur'an. In addition to the Qur'an, if a change is needed
because for the health of the nation or nation, it feels good to even
God willing to reward the change. Therefore as
The expert conclusions argue that:
a. Establishing a command has a house and a floor area per family
If it is not appropriate. The more rational one is to establish a floor luasan
home per person.
b. Setting the floor size, a minimum of 36m² per unit of the home, would be more
making it difficult for the duafa to have their own habitable home.
c. Preferably the size of the 36m² in the Act was changed to
its efficacy with the emphasis of core home programs, so the policy
this would be friendly on the duafa.
d. If the verse cannot be changed because of the already kind-
type, get there, if the Assembly of Justice MK could provide
a sufficient transition time, for the abandoned houses to be created at
below 36m² can be found. It's distributed to consumers. Despite the loss
that may arise if there is n' t enough transition time it is only
82
is suffered by the developers, but the Expert argues, in
the nature of it is a national loss. That transition time according to the expert
is quite one year from the date of this decision;
e. An alternative suggested to MK was to delay the entry
the verse is at least 5 years old, which is the time
the well-being of the duafa has improved sufficiently, with the alternative
last, the expert argued. That's the win-win solution. Invite-
Invite not to be changed but given a new interpretation with
postponing the expiring term for a given time is in the event
this is 5 years.
Witness the applicant 1. Fuad Zakaria
That the Witness will deliver the description according to the fact that
witnesses see, natural, observe, and learn from year to year, both as
the developer and as the general chairman of DPP APERSI the service of 2003-
2006 and 2006-2009;
That from the point of view as a developer, Witnesses study and
observe, as well as experience the situation and conditions of the housing business of the orde
to the orde, from the Old Order up to the Order of the Reformation and finally until
The United Indonesia Cabinet is running fluctuating and backlog trends .
Meaning that there is a gap between supply capability with
supply capability with a growing home requirement
although the housing business is generally normal without viewing
Government targets Or the 'backlog'. This is due to the
openness, togetherness, and suitability of the Government side to
grazing low society or MBR as much as-
large numbers by depaning the principle of justice and following the conditions
MBR's economy or the purchasing power or power of the MBR itself. Thus
with all the limitations of government assistance and so quickly
rising house prices, while the other side purchasing power, the cicil power of the year to
the year continues to decline which eventually raises the home type starting from
originally type 70, type 45, type 36, type 29, type 22, and also type 18 or
home called core home grew adjusting to the economy
MBR with the principle of remaining grazing them gradually and
83
developed by themselves in accordance with their own economic increase
;
That started resah and wondered at the time of the year
2010 Government through The new Menpera rewrote the change issue
a new system called the FPP and handed the draft
the planned creation of the planned housing Act
Menpera previously to the DPR into legislative rights because of all it
made through a process that we think is less transparent, togetherness,
and seriousness. In view of the ongoing housing business conditions
running, in this case it is marked by the exit of both policies
abruptly with the transition time for the FPP only 1 month,
whereas for the PKP Act Only one year, it
resulted in the lack of a target in 2011 of the plan
154,000 units, the realisation is only about 79%. More alarming
again, after reshuffle cabinet of 2011 and new minister
abrupt January, dismiss KPR for MBR, and finally
in March running back with the requirements The new one, where
the minimum type of house is raised from 21 m² to 36 m² by peddling
prices Rp 70.000.000.00 per unit. As a result, 3 consecutive months of MBR
ca n' t be acad and the already telled home, the more
type of 36, ca n' t be sold. Moreover, in one project, the minimum
should have been planned for 3-5 years, forced to have to change
the concept abruptly and overall. That being
questions, how the MBR that has been only able to buy the type
is smaller than 36, forced to buy a larger type, at a more expensive
? However, their number in the realization that we experienced
from location per location and accumulated all over Indonesia, 80% of
amounts to an annual basis. Is this not going to downplay the target
The government forward? And is it their right to have a house not
missing? Where's the sense of justice?
That as long as the witness is the general chairman, the Witness was once involved in the
Government to formulate policies. Witnesses observed from
the time to time, in the Old Order period, 1945-1965, institutional
The housing company was n' t there specifically. And indeed that time
84
also procuring there were difficulties and Witnesses quoted Bung Hatta statement,
"The absence of home for society is difficult, but if there is
willpower and serious, it can be." So, the witness is convinced here that backlog
(gaps);
That in the New Order period, 1965-1998, the institutional institutional
housing there was a young minister, there was also Menpera, then the program
The development was seen enough Good. There is a long-term, term
medium, and short term program. The economic conditions of the economic society
low at that time is also pretty good, although from the years it will decline
because it is not comparable to the price increase of the house itself,
so that the type of house in the order, it starts from type 70, type 45, type 36,
continues to drop to type 18;
That in the Reform period, 1998-2000, the existing institutional
Menpera, was abolished, merged into Menkimpraswil, which if not
is wrong at the time It became a secretary-General, then the program wasn't clear. Conditions
MBR economy purrable, KPR stalled. Backlog of the time it obtained 4
comma million units;
That in the Reform period, 2001-2003, the existing institutional
was still level-jen, Dirjen Perkim at the time, under Menkimpraswil, more
advanced because has a GNPSR program (National Movement
Development of One Million Homes). Apparently at the time, backlog that
occurred = 6,000,000 units. Then the Government assumes that 20 years
backlog this will be satisfied. That's 1 year = 300,000 units. The requirement
home because of the addition of a population = 700 units, so expected
at the Government one time Indonesia will build 1,000,000 units
home per year, so that 20 years later, the new backlog will be completed.
When that type of house is still the same, that is type 22, type 21 and type 27;
That in the Cabinet of Indonesia United, 2004-2009,
the institutional appearance of the housing special is Menpera.
The program is only there ' s a mid-term project 5 years and maybe
short or annual. So it doesn't seem to be a program for
reaping backlog. that's so much. Then, at that time, together-
sama deliberated formulating one draft of the special Act
housing, so that the government would be able to make national policy
85
which integrated is based on the Housing Act. At that time
the ministry made the formulation or draft of the Act.
The economy still has not improved for MBR and the home type is still 22 and
29. Backlog at the end of 2009 rose to swell from 6,000,000 to
10,000,000 units;
That in the Second United Indonesia Cabinet, 2009-2011,
the institutional still remains Menpera. The medium-term 5 annual program
and the short-term one-year, and there are changes in the financing system.
In the period of the United Indonesia Cabinet II, the institutional Menpera insya Allah
remains. The program goes on and sets a minimum floor area of 36
or type 36. Backlog today which he says there are 13,600,000 units;
That MBR home needs rise sharply, whereas
the upgrade is much smaller than the need so that backlog of the year
to the year swells. Today it has been 13,000,000 more, if indeed
The government of each program makes it easier to house the public
the vastness, this will be continuous;
That the purchasing power or power of the MBR is considerably smaller than
an increase in house prices, so the home type is unlikely to be in
upgrade. So what happens if we look at history, from type 70
to type 18, or a growing house is actually not to be said to be not
prosper, because when they are married, they need 9
meters, the household 18 meters. At the time the economy improved, they would
improve according to their needs and their capabilities.
The fact that today is a natural witness, the consumer homes that were just
type 18, being type 70 and so on. with their
capabilities. Rather than today they can type 36, but ca n' t have
that finally ca n' t have forever. Then, the realization of the provision
home or realization of the year to the year, witnesses looked at the location per
location, and witnesses accumulated all over Indonesia that the composition of
The realization was, as much as 80% of the consumers who were only able to buy
house under type 36, his 20% above 36;
That Witness thinks the Government is less focused on managing
MBR housing, which Witnesses observe the ministry from time to time, there
and none, the program always fickle, no one until
86
overcome backlog and there is currently no policy breakthrough to
resolve the issue at the top;
That the Witness included the one that gave the initial input to
ministry of 2004 until 2009 the need for policy, so
expected an Act on Housing to babysit
backlog the large and purchasing power that comes down by the
outrange Justice and welfare. Today there is an Act
PKP Number 1 of 2011, which we feel and see there is less
fitting, especially Article 22 of the verse (3) that the minimum floor area must be 36m². And
this will enlarge the welfare target and will enlarge backlog
because 80% of the public is only able to afford a house under the type
36. It would also enlarge the index of consumer affordability
because house prices are always expensive, at a price of 70, maybe if it could be more
cheaps, which could be sold at 50. This adds to the index
the reach of its own consumer. Unfairly MBR who can only afford
buying the type under 36 ca n' t buy a house. The section
contradictory to the principle and the purpose of the Act itself. Asas
housing and residential areas are organized with
based on fairness and welfare, affordability and ease.
The question is where is the equality between this principle with
the section;
Why is Apersi concerned with Article 22 of the paragraph (3) of the PKP Act? In
side of the description above, as Witnesses read the articles
that Apersi corresponds to the asas and the purpose is established. Asas Association
Housing Development and Whole Indonesia Settlement (Apersi)
assired Pancasila and Basic Law of 1945. Purpose
Apersi was established to be active in all national development processes
in particular, and in the development of housing and settlements as well as
in order for the national purpose, the form of society
Safe, equitable, fair, prosperous and prosperous based on Pancasila
and the Basic Law of 1945, so not only profit oriented
alone. The aperture of the consen against the asas and the purpose;
That in the interest of the community so much, backlog yang
13.000,000 will be increased steadily, and the mandate of Article 28 of the paragraph (1), paragraph (2),
87
and the paragraph (4) of the Basic Law of 1945, as well as for not to occur
contradictions between asas and the purpose of Section 22 paragraph (3) Invite-
Invite PKP itself, the witness wishes Article 22 of the paragraph (3) which is about
the floor restriction, could be revised or may be held a delay,
so that waiting for the public purchasing power will improve. Or is it that the government is able to subsidie that rate of price increases?
2. Mohammad Echsannullah Khan
That House manifests dhuafa when the onset of Article 22 paragraph (3)
Act No. 1 of 2011 on PKP, poor people are banned
have a home. Why is that? Because of the basic human needs if we
see is the first primary, secondary, and tertiary. If the related
with primary, sandang, food, primary is sandang, food,
board;
That regarding the board needs, is clearly legislate
earlier in 2004 and the Revision Act at PKP Number 1 Year
2011 Article 54, indicating that the country is in the interest
to build its people's house;
That the Witness as an APERSI member, has already started before
the draft law at the Ministry of State level Housing
People, which is the forum group of discussion, there's a lot of that The rhythm,
but the final conclusion was never included in our criticism. Thus,
should we as stakeholder or as part of society,
co-complement each other, so it is expected that Article 22 of the paragraph (3) does not
incline premature. What happened was the hammerhead of parliament already
approving. Then witnesses as a person saw that there were eight
inheritance sins as a result of this PKP Act;
That the first was a construction index of the construction experienced at
the pitch. Because of what? In the Act No. 1 of 2011 it exists
luasan 36, while the one we built is type 21 in accordance with
minister rules, previous PP regulations. Then there's an excess of 15 m².
The problem is who bears the 15 m² of it?
That home is becoming a idaman, walalupun type 21, Government
gives entry point for us to develop. There's a group
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target 1, target group 2, target group 3. Based on the salary,
or based on community revenue;
That in target group 1 there is a Low-Income Society
(MBR) or a duafa society with a salary of Rp. 2,500,000,-. There is a group
target 2, which has a salary of only Rp. 1.700,000,-;
That when fostering a family, then the choice is two. First,
do we rent or do we buy?, the next decision is
we buy a house. The house is first home. Next we
have a child we educated at home as a religious foundation
Our will, then we deliver them up to the higher education window
That a that's a Allahu rabbal alamin describes an
representative of Baitullah's house Ka'bah. Baitullah Ka'bah turns out if
we are meticulous breadth no more than 11.53 x 13.16 meters. God owner
The universe only occupies 156 meter2, and it is very
minimalist of his house. Whether God rabbal alamin commands the servant-
His, that is us as a normal human being able to determine the type 36.
Actually the point is not the matter of the article is type 36 or not, but
how far from 15 m² difference, the government wants to give
subsidy incentives;
That in our culture there is a name for local, home culture. In
the Acehnese people if the girl gets her soul mate, then she
is made home. It's almost all over our culture. There's a name for the local (local genius) that's got to be accommodated by an invitation;
That if we look at all the projects in the Jabodetabek, development
home in the end would be There were good houses. Because
The government is educating its people to come in, make it easier,
subsidised it, but its people are given the fishing line, he educates
himself, he keeps improving his quality. We see the facts in
the field. Many of the houses formerly RSA have grown to
middle-class houses;
That this legislation is in fact if only the socialization was right
and from stakeholder it was accommodated, it would not be occurred in the Court
The Constitution for argumentation cancels Article 22 of paragraph (3) of the PKP Act;
89
That the type 21 house is still acceptable for the MBR community;
[2.3] A draw that the Government in the March 22 trial
2012 has provided an oral description (opening statement) and it has been
providing written information to the Court on April 11
2012 and April 17, 2012, in which it describes as
following:
A brief description of the application testing Act No. 1 of the Year
2011 on Housing and Settlement Areas, as follows;
1. The subject of the applicant is considered to be known and we will
explain in the Government statement.
2. The description of the legal position of the applicant shall we explain in the caption
The government.
The government will outline a detailed explanation of the charge material
the norm that the applicant is being honed in.
The government delivered a philosophical, historical, sociological, juridical foundation,
and The theological Law Number 1 of 2011 on Housing and
The Settlement Area is in a brief description as follows;
1. That in a philosophical perspective, the need for home as wrong
one basic human necessity will continue to evolve according to
the development of human civilization. The improvement of the quality of housing that
embodied through national development should be aimed at
improving the quality of life. Housing and residential areas
has a very strategic role in character formation and
a nation's personality and needs to be scouted and developed for the sake of
and the improvement of life and livelihoods Society. Housing and
settlement areas cannot be seen as a means of life needs
solely, but rather it is a human resettlement process
creating a living space to compress itself and
displaying self-identity. Therefore, residential and residential areas
is one of the only efforts to build an Indonesian human being that
has an awareness to always guarantee human connection,
the environment of his abode, and He is the Lord of the Lord, the Lord of the Lord. Housing and residential areas are directed
90
to attempt and drive the form of any person's condition or
family in Indonesia who are able to be responsible in fulfilling
a decent and affordable home needs in the In a healthy environment,
safe, harmonious, and sustainable in order to support its society,
as well as a self-identity, self-sustainable, productive environment. In connection with
that, then the Government should serve more as a facilitator and booster
in an enablement effort for the entire process of the process
hosting residential and residential areas for the sake of Its embodied
a society that is able to meet the needs of a home that
is viable and affordable independently as one of its fulfillment efforts
the basic human needs in the framework of self-development and
encourages the quality of a healthy, safe, harmonious, and
quality of the environment. Neither in the cities, nor in the countryside.
2. In a historical perspective, the home-building policy of the 36th floor
M², has been growing since the beginning of the independence of the Republic of Indonesia. This
can be redeemed that at the beginning of the recognition of sovereignty, after its initial
physical struggle, for the first time the initiative arose from several political figures
and experts to think of the people's housing issues with
hosted the Sehat People ' s Housing Congress on 25-30
August 1950 in Bandung. The congress was attended by participants from 63
counties and townhouses, 4 provinces, vice-representatives of the public works office,
envoys of youth organizations, peasantry, Parindra administrators, and persons
individuals. The decision-making of the 1950 congress was very
simple but very fundamental to the development of the housing field
the later people. The point of the congressional decision is as follows.
A. The size of the 36 m² parent house with two bedrooms.
B. Home area of 17.5 m².
C. The ceiling height is at least 2.75 m.
D. Window holes and minimum wind holes are 10% of the floor area.
That in 1956, the State Designer Bureau formulated the Lines
The Great Five-Year Development Plan of 1956-1960 which among others
mentioned the government program in very limited housing field
and especially includes things as follows.
A. Investigations into the techniques of home-making.
91
B. Counseling to the people about the results of the investigation.
C. Simplification of administration procedures as well as granting of facilities
regarding the creation of a home.
D.
E. Collection of information about housing.
In terms of housing financing, among other things is also explained that not
may be charged to the Government alone. Therefore, there should be
joint efforts of the public to build housing in the form
housing cooperatives, foundations, or other forms. Such efforts, can
obtain assistance and guidance from the government. However, it should not be
solely to hang from the Government.
With Presidential Decree Number 18 of 1969, the housing becomes
the sector/board chaired by the Minister of Public Works and Electric Power
with Its members, including: Department of Finance,
Bank Indonesia, and the Department of the Interior. The a quo was actionable
with a mutual agreement among others: Minister of Public Works and
Electric Power with the Minister of Finance on 2 June 1973.
The joint deal contains, "The house with a minimum floor area of 45
m² and has two rooms."
3. That in a sociological perspective, the house is seen as a place of an
family form the family ' s self-identity. With home, the family
has pride and self-identity. Departing from that state,
can be expected a family to be a more prosperous family.
4. That in a juridical perspective, it refers to Article 28H (1) of the 1945 Constitution
affirm, " Everyone is entitled to a prosperous life born and inner, place
stay, and get a good and healthy life environment, as well as the right
Get a health service. " Thus, the setting of Article 22 paragraph (3)
The Housing Act, is the Government's effort in provision
home residence, not just to meet the physical standards of the building,
but should also be used as a means for interaction of family members,
so that a healthy atmosphere is born, inner, social, environmental.
Related to the judicial foundation of the International Law provisions, among others
is set in terms;
92
a. Law No. 11 of the Year 2005 on the Outrage of the Covenant
International on Economic, Social and Cultural Rights. Emphasized
in recognition of everyone ' s right of living standards that
is adequate, including guarantees for health and well-being.
b. The country's obligation to meet the right to an adequate standard of living
is guaranteed in Section 2 of the paragraph (1) of the ICESCR, " Each party country
in this covenant, promises to take steps, both
individuals, nor through international assistance and cooperation,
in particular in the economic and technical fields, throughout the available source
its power, to progressively achieve the full embodiment of the rights
recognized by this covenan with appropriate ways, including
with the take of legislative steps. "
c. Universal Declaration of Human Rights, Article 25 of the paragraph (1) states,
" Everyone is entitled to an adequate level of life for health,
and the welfare of her, and of her family. Including rights to food,
clothing, housing, and health care, as well as social services
are required, and entitled to bail at idle,
suffering from pain, defect, being a widow or widower, achieving an advanced age, or
other circumstances that result in a lack of a living that is
outside of its power.
d. General Comment United Nation Number 4 regarding rights to Adequate
housing of the International Covenant on Economic, Social,
and Cultural Rights issued on December 13, 1991, by
Committee on Economic, Social and Cultural Right, at 7
states that decent homes are affordability of the area
room, security, lighting/lighting, ventilation, infrastructure, and
eligibility distance between home with work, as well as all facilities
base can be fulfilled at an affordable cost.
Other relevant National and National Legal Conditions
with regard to the maximum extent of habitable home floors, will
further elaborated in the Government's description.
5. That in a theological perspective, according to Islamic religious teachings, Home
is an important part of education and family coaching,
so that the family can exercise its function optimally. The house isn't
93
simply as a residence, but the home is a flawless vehicle
values within the framework form the entire noble akhlak members
his family. The effective learning process is at home because of the process
effective communication can be done by the entire family member. In
the Prophet Muhammad SAW stated, " Send your children to do
prayers at the time when they are 7 years old, and hit them when they
leave prayer at the age of 10, and separate the place
sleep them ".
The essence of the above hadiths is an order to parents to educate the child-
the child for first runs the prayers. And second, separate the bed
they were when they were 10 years old. The spirit of the order is for
children grow up well and be spared from things that are not good,
such as aberrations, sexual irregularities, and so on.
The concept of baiti jannati and/or my home, surgaku, translated into
home as a place that gives a safe, comfortable, and quiet feel to
the entire family member. In addition, it is necessary to keep in mind that home is the place
to foster family, cultural supplies, educate, nurture
morals, and religious values. Thus, there is a family of sakinah, a mavessel,
warohmah. With regard to the area of the 36 m² house set in the Invite-
Invite Housing is certainly expected to be more fulfilling the teaching
religion to be able to provide a home with room number that can
fulfill the labations of the command religion.
The government believes that the provisions of Article 22 paragraph (3) Invite-
Invite Housing not least contains any adverse elements
constitutional for Indonesian society. Because the a quo
is conformity vertically with the provisions of Article 28H paragraph (1) and paragraph
(4), Article 27 paragraph (1) and Article 28D paragraph (1) of the Country Basic Law
Republic of Indonesia of 1945.
The government is determined that implementation of the a quo provisions will
drive the acceleration of an insightful housing arrangement and arrangement
A healthy environment including a policy related to the minimum floor area
36m Square. a quo if associated with international regulations
about the minimum occupancy area, then the setting in Indonesia is still far in
94
under international standards. The Indonesian government seeks to gradually
to be able to meet the international standards of the minimum broad arrangement of occupancy.
According to the philosophical and social prespetive logic that the minimum floor area
36 m² is more hopeful for can form the family ' s identity, watak
as well as the personality of the nation. Even viewed from a broad theological corner of the floor
minimum 36 m² with two-bedroom specifications, living room, and kitchen
as well as the bathroom more fulfilling religious advice. Due to religious teachings
advocating a bedroom for children and parents should be separated, even
if having children in sex, the bedroom should be split.
From the health point of view the minimum floor area more
meets the health requirements for its occupant, space
the motion, lighting, and the protection and privacy of its inhabitants.
Based on that explanation above the government pleads to
that Honorable Speaker of the Constitutional Court of Justice, who examined,
prosecute, and Severing of Law Testing No. 1
Year 2011 on Housing and Settlement Areas against Invite-
Invite the State of the Republic of Indonesia in 1945 may provide
a decision as follows:
1. The applicant does not have a legal position.
2. Rejecting the applicant ' s testing for the whole or
at least stated the request for the applicant to not be
is acceptable.
3. Received overall government information.
4. Stating Article 22 paragraph (3) of the Law No. 1 of 2011
on Housing and Settlement Areas does not conflict with
The provisions of Article 28H paragraph (1), Section 28H paragraph (4), Article 27 of the paragraph (1), Section
28D paragraph (1) The Basic Law of the Republic of Indonesia Year
1945.
In addition the Government submitted the written caption received by
The Court of Justice on April 11, 2012 which was at its point
outlines as follows:
I. Subject Of The Request
1. Principal request register Number 12/PUU-X/2012, at the core of the applicant
states that:
95
a. That the applicant is a worker with income below
Rp. 2,000,000,-and with such income the applicant only
may meet the needs of the day;
b. The applicant states that the provisions of Article 22 of the paragraph (3)
The a quo Act cause the petitioners unable to buy
or build a house because to buy a house with a minimum area
36 (thirty-six) The square meter, the applicant must
issue an assumed fund minimum of Rp. 135,000,000,-,
this does not correspond to the income the applicant has obtained;
c. That the petitioners state that the right to housing is the right
someone to get a home/place and live in an
a safe place and a housing estate is a responsibility
the country for its imprisonment, country that is obligated to respect,
meet, and protect, and this responsibility is governed in Article 28H
paragraph (1) of the 1945 Constitution;
2. Register Number 14 /PUU-X/2012, at its core para
The applicant stated that:
a. That the applicant is an association of the developers of developers
housing and settlements for the group of income groups
low that has the mission of building people housing is housing
simple/very simple;
b. That housing development with an area of at least 36 (thirty
six) square meters inhibits the motion of developers and targets
The development of a simple home house is not fulfilled;
c. That the need for cheap homes and houses with type 21
(twenty-one) square meters which are home grows, still
is a real necessity and provisions of Article 22 paragraph (3)
Act a quo incriminating the applicant as a developer
that builds a modest house with a measure below 36 (thirty
six) square meters;
II. Legal Position (Legal Standing) The applicant
In accordance with the provisions of Article 51 of the paragraph (1) Act Number 24
of 2003 on the Constitutional Court as amended by
Act No. 8 of 2011, stated that the applicant is the party
96
which considers the rights and/or its constitutional authority be harmed by
the enactment of the Act, i.e.:
a. Individual citizens of Indonesia;
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. country institutions.
The above provisions are expressed in its explanation, that the
" constitutional right ' is the rights that are governed in the Basic Law
The Republic of Indonesia of Indonesia in 1945.
Thus, in order for someone or a party to be accepted as
The applicant who has a legal position (legal standing) in the plea
testing the Act against the Republican Basic Law
Indonesia Year 1945, then first must explain and
prove:
a. Qualify for the a quo as described in
Article 51 of the paragraph 51 of 2003 on the Court
The Constitution as amended by Act No. 8 of the Year
2011;
b. The rights and/or its constitutional authority in the qualifying referred to which
is considered to have been harmed by the enactment of the tested Act;
c. Rights and/or constitutional authority of the applicant as a result of
the enactment of the required Act.
Further the Constitutional Court since the Decree of Number 006/PUU-111/2005 and
Putermination Number 11 /PUU-V/2007, and further rulings, have been
providing a cumulative understanding and understanding of the rights loss
and/or the constitutional authority arising out of the
Act according to Section 51 of the paragraph (1) Act No. 24
In 2003 on the Constitutional Court as well as has been changed with
Act Number 8 of the Year 2011 must meet 5 (five) terms:
a. the constitutional right of the applicant given by the Basic Law
The State of the Republic of Indonesia in 1945;
97
b. that the applicant ' s constitutional right is considered by the applicant to have
harmed by an Act tested;
c. that the intended constitutional loss is specific
(special) and actual or at least potentially a potential that according to reasoning
which is reasonable to be sure will occur;
d. Due (causal verband) between the loss and
the enactment of the Act was moveed to be tested; and
e. It is possible that by the request of a request then
the constitutional loss postured will not or no longer occur.
Over those things above, then according to the Government needs to be questioned
interest The applicant is to be appropriate as a party to consider
the rights and/or its constitutional authority is harmed by the enactment of the provisions
Article 22 paragraph (3) of the Act No. 1 of 2011 on Housing and
The Region A settlement. Also whether or not there is a constitutional loss of the
The intended applicant is specific (specifically) and actual or at least
a potential that according to reasonable reasoning can be certain
occurs, and whether there is any relationship of cause (causal verband) between the loss
and the expiring Act to be tested.
According to the Government against the Applicant Register Number 12 /PUU-X/2012
not having any losses over the Applicability to be moved to
test, due to the setting in a quo is a mandate
Article 28H paragraph (1) The Basic Law of the Republic of Indonesia in 1945
which provides the responsibility of the state to protect all
Indonesians through hosting housing and residential areas
for the public to be able to reside and inhabit the Iayak and
affordable homes in a healthy, safe, harmonious, sustainable and sustainable environment
across the region Indonesia. The a quo Act determines that Iuas
The home chains are at least 36 (thirty-six) square meters and various
Government policies to provide assistance and ease of ownership
home.
Further the provisions of the a quo Act also do not obstrude
ban if the applicant remains willing to own a house with
type 21 but with consequences of not getting any ease
Home ownership provided by the Government.
98
As well as against Register Number 14 /PUU-X/2012 that
is the Housing and All Settlement Developers Association
Indonesia, through the provisions of the a quo Act The applicant is not obstructed-
obstructed, or harmed in carrying out his work as a developer
housing and settlements in building the house either type 21, type 36 or
any type.
Because it is, according to The government is appropriate if the Assembly of Justice Court
The Constitution wisely expressed the request of the applicant not to be
received (niet ontvankelijk verklaard).
However, if the Constitutional Court of Justice argues otherwise, the following
is delivered an explanation of the Government, as follows:
III. The Government ' s Explanation Of The Matter In Which The Applicant
1. Preliminary Before the Government outlines a detailed explanation of the charge material
the norm is motionless to be tested by the applicant, the Government in advance
first delivered a philosophical, historical, sociological, juridical and philosophical basis. theological
Act Number 1 of the Year 2011 on Housing and Regions
Settlement, as follows:
Act No. 1 Year 2011 on Housing and Regions
Settlement of Settlement Act (later called Housing Act) At least it could be
viewed from two things. First, the Act is the answer/top solution
various issues that arise in society against the procurement
housing, whether built by the government as well as by developers
private, and the public. Second, the a quo Act of a part of
social engineering (social engineering) in housing development and
future residential areas in the framework of setting conditions
housing and regions settlement in the short, medium and
long term. To implement the a quo Act it needs to be understood more
used to be a construction of thought developed, in order for the policy of holding
housing and residential areas understandafully and understood the essence of vision
and mission by stakeholders and gain positive legitimacy from the public,
99
so that the main purpose of holding residential and residential development
settlements can be reached.
The housing policy and residential area that
is poured in. The a quo has a high moral and moral value that is
high, that is that the policy of holding housing and the region
settlements are intended as an attempt to increase dignity and dignity,
the quality of life. as well as the welfare of the people, and the formation of the character as well
As one attempt to build an Indonesian human being
completely, self-identity, self-suss, and productive. Therefore, the policy
hosting of the existing housing and residential areas
the a quo other than containing the meaning of increased harkat efforts and
human dignity, but also part of the from the formation effort
character (character building) society prepared to compete in the era
the sophistication of science and technology, so the availability of the home that
is habitable is an educational platform and personality development that
is more responsive to the demands of the age, which in turn can improve
the nation 's wibness in the world' s promisity. This suggests that the Invite-
Invite a quo Iangsung accommodates the group ' s interests
the weakest community in the holding of housing and the region
settlements or in the term John Rawls are called as least advantage group;
among the Low-Income People (MBR). One indicator
justice according to Rawls is the distribution of fairness for the group that
is weakest in the community. Therefore the a quo Act
places the policy of holding housing and residential areas
not just the fulfillment of the rights of citizens referring to Article 27
paragraph (1), Article 28H of paragraph (1), and paragraph (4) and Article 28D paragraph (1) of the Constitution of 1945 which
stipulats that the right to residence is no longer just
a viable livelihood, but the residence is meant to be associated
with the health aspect of both healthy birth, and inner, and healthy social as well as
healthy environment:
In the perspective of the rights Human rights and human rights to protect and fulfill the rights of human rights and human rights.
Constitutional Rights and The Protector of The Human Rights), then
100
The a quo Act substantially refers to the principles of the right
as mandated by Pancasila as
the foundation and philosophy of the State of the Republic of America. The unity of the Republic of Indonesia and Article 27 of the paragraph (1),
Article 28H paragraph (1), and paragraph (4) and Article 28D paragraph (1) of the Basic Law
The State of the Republic of Indonesia in 1945.
2. Government explanation of the provisions of Article 22 paragraph (3) of the Act
Number 1 of the Year 2011 on Housing and Settlement Areas
1) That Article 22 paragraph (3) of the Number 1 Year Act 2011 on
Housing and Regions The settlement states that, "The area of the floor
the single house and the house of the series have at least 36 (thirty
six) square meters". The provisions of article a quo as an attempt to
strengthen the government ' s vision in improving the welfare of the community
through home media. In addition, the a quo provision is also for
adjusting to WHO standards of healthy habitable homes.
The size created is the average estimate of the number of people in one
family (nuclear-nuclear family family) that is assumed to be composed
4 persons, i.e.: husband, wife, with two children with mobility
perpersons within the house (9 meters). Single home floor broad provisions
at least 36 (thirty-six) square meters above and equivocal
government commitments in improving the Minimal Service Standards
The areas of the People ' s Housing in accordance with Regulation Minister of State
People ' s Housing Number 22/PERMEN/M/2008 which includes a decent home
habitable and affordable, in a healthy and safe environment supported
infrastructure, means, and adequate utility (PSU). Specifically for
habitable housing indicators, the criteria for which the structure is complete
is a foundation, a wall and a roof with sufficient lighting and
sufficient air vents. Coverage of infrastructure support, means,
and general utilities include the availability of drinking water, electrical availability,
drainage channel, Iimbah/sanitation disposal and garbage processing.
Thus, it can be said. that provisions in the Act
Number 1 of the Year 2011 on the vast area of the least 36 houses
(thirty-six) square meters are the strengthening of the standard of service
at the minimum field of the people's housing.
101
2) That philosophically the need for home as one
the fundamental needs of human beings will continue to evolve according to
the development of human civilization. The improvement of the quality of housing that
embodied through national development should be aimed at
improving the quality of life. Such improvements are not only in the
quantitative understanding, but also qualitative as possible
The organizers of the housing are compatible with the nature and function.
Housing and residential areas have a role in which it is. very
strategic in the formation of the character as well as the personality of the nation, and the need
scouted, as well as developed for the survival and improvement of life
and the livelihood of the community. Housing and residential areas are not
can be seen as a means of necessities of life solely, but more
of it is the process of resettlement of man in creating space
life to enlarge itself, and Reveal itself.
Therefore, residential and residential areas are among the
efforts to build an entire Indonesian human, which has an awareness of
to always be in a relationship between human beings, the environment The place where he lives and stays on the other side of the world, and the Lord is the only one.
The hosting of residential and residential areas is directed to
endeavour and encourage the condition of any person or
families in Indonesia who are able to be responsible in meeting
the needs of the home. Worthy and affordable in a healthy environment,
safe, harmonious, and sustainable to support its embodied
society as well as a self-aligned, independent, productive environment.
Refer to the nature of the existence of home will be very
determining the quality of the community and its future in the future, And
The principle of fulfilment needs for housing is the responsibility
the public's responsibility; then the public placement as a perpetrator
primary with an enablement strategy is a very
strategic effort. So that should be community empowerment and para
other key abusers in the housing and area
settlements by optimizing resource assistance
housing support and the Neighborhood. In
this relationship, then the government must act as a facilitator and
102
thrusters in an enablement effort for the entire
series of residential and residential areas
for the sake of the society's habitability.
Iayak and affordable home needs are self-sufficient as wrong
one effort in fulfillment of human basic needs in order
identity development, and encouraging the embodied quality of the environment
that is healthy, safe, harmonious and sustained, both in urban and in
the desicence.
3) That in the historical perspective of home development policies broadly
Iantai 36 (thirty-six) square meters have developed since the beginning
independence of the Republic of Indonesia. This can be redeemed that at the beginning of the
the recognition of sovereignty after the physical intestation, for the first time
embossed from some political and expert figures to think of
the housing issue of the people with hosted the Housing Congress
People Sehat on 25-30 August 1950 in Bandung. The Congress
was attended by participants of the sixty-three Counties and Kotapraja,
four provinces, vice-representatives of the Public Works Office, Envoy
Youth Organization, Tani Range, Parindra Replacement, and figures
individuals.
The decision-decision of the 1950 congress was very simple, but
is very fundamental to the development of the field of the next people's housing.
The subject of the congressional decision is as follows:
a. The size of the 36 m² parent house with two bedrooms;
b. Home area of 17.5 m²;
c. Minimum ceiling height of 2.75 m;
d. Window holes and windholes (ventilation vents) minimum 10%
of the floor Iuas.
That in 1956 the Bureau of State Designers formulated, "The Lines
of the Great Five-Year Development Plan 1956-1960", which among othersmentions a Government program in the field of housing highly
limited and mainly includes the following:
a. Investigations into home-making techniques;
b. Counseling to the people about the results of the investigation;
103
c. Simplification of administrative procedures as well as granting of facilities
regarding the creation of a house;
d. The urge to enlarge the production of building materials;
e. The collection of information about housing matters.
In terms of housing financing among others also explained that not
may be charged to the Government alone. Therefore, there should be
joint efforts of the public to build housing in the form
cooperative-housing, foundation or other forms. Such efforts may
obtain assistance and guidance from the Government, but should not
solely to hang from the Government.
That the policy pad in the field of housing in the new order is marked
The political decision of the MPRS, which briefly mentions
"in order to be filed for the development of healthy people's housing". At the time of
this, the housing program has been included into the Pelita-I which became wrong
one sector of 17 building operational control operations of five
years.
With Presidential Decree Number 18 of the year 1969 housing be
sector 0/Board chaired by Minister of Public Works and Power
Electricity, with its members consisting of the Treasury, Bank
Indonesia, Department of Internal Affairs, Department of Industry,
Department of Agriculture, Department of Transportation, Department of Labor
Work, Department of Social Services, Department of Health, Department of Defense
and Security, Information Department, and Institute of Science
Indonesia. The standout of the sector 0 is, for the first
time housing is associated with foreign capital cultivation
(Act Number 1 of 1967) and domestic capital cultivation
(Act Number 6 of 1968), in where the housing field is cheap
for low-income communities including the field of venture that
prioritises, to support the spirit of the program then
issued a Letter of Agreement with the Minister of Public Works and
Power and Finance Minister, on June 2, 1973. Dalarn
mutual agreement as set forth set of home requirements
is cheap that can be supported with environmental facilities. Model
home in a joint deal letter that is, home with a broad
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minimum 45 M² and have two bedrooms. In order to conduct
the domestic capital cultivation act, in the field of housing
issued Decree Joint Chairman of the Planting Coordination
Capital (BKPM) Number 28 of 1974 on the Capital Planting Guidelines
The area of residential development and its facilities, among others
sets a comparison number of luxury, medium, and simple house ratios
that is 1:3:6, while the home floor Iuas is maximum of 70 M².
That in the construction period of 1976, 1980, 1985, and
in 1990 there was an increase in the percentage of home Iuas (table)
Number of Home Percentage Time Percentage
30 M²-48M² Floor
1 1976 30.26%
2 1980 28.33%
3 1985 27.00%
4 1990 31.6%
The data summarized above, there was an increase in the 1990s
against the house with a floor spit of more than 30 m², this is because
the urban land is getting more expensive next to trend trends
needs against a house with a floor area of more than 30 m² continues
increases. It is also visible from data issued by the Central Bureau
Statistics show that the development of residential development results
and settlements in the period of 1969 up to 1995 (PJP I)
for parameters percentage of homes with a floor area of 30m² to the
49m², in 1971 was 31.9% and in 1992 was
by 33.4%.
4) That the home is a basic human need, next to the need
the base of the sandang and food, in addition to functioning as a protector
against natural, weather and other disorders, also has a social role
culture as the center of family education, the supply of cultural values and
the establishment of the identity of a society or nation. Sociologically home
seen as the place of a family to form a family identity, with
home, the family has pride and self-identity.
Up from the circumstances it can be expected to be a family Be
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the families are more prosperous. In a sociological view of it,
home and environment are often thought to be able to provide an image in
the owner. Housed in a well-ordered and expensive housing can
show a certain social status. Housing and area problems
settlements appear and will be worse can be caused by
several factors, but the most basic reason is that
housing is produced, financed, dimi! iki, run, and sold. with the aim
to serve the interests of private capital. The existence of a home as a commodity
The private sector led to residential and residential development
settlements would be dominated by stakeholders that used a variety of
ways in processing housing as its main commodity. to receive
advantage. The stakeholders includes real estate developers,
contractors, building materials manufacturers, and other housing providers such as
home credit lenders, investors, speculators, landlords, and homeowner
alone.
The consequences that consumers must bear among other high
costs must be issued to have or occupy the home.
practically, a predeveloped concept as the implementation principle
housing development and a residential area that is principally
aims to empower social components of society, effort and
economy, as well as the environment, still can be grown as developed as
a residential and residential development approach that
. Continued at the local level. This approach is done by blending
community empowerment and empowerment activities, as well as activities
enablement of community economy with infrastructure
and the basic means of housing and region settlement as one
unity of an inseparable system.
5) That in a juridical perspective, by referencing Article 28H verse (1)
the Constitution of 1945 affirm, " Every prang is entitled to a prosperous life born and
inner, residence, and getting a good living environment and
healthy as well as entitled to a health care", then the arrangement
Article 22 of the paragraph (3) The Housing Act is a government effort
in the provision of the home residence not just to meet the standard
the physical building but also must be used as a means for interaction
106
family members, resulting in a healthy atmosphere of birth, inner, social
and the environment. In technical perspective, the residence/hunian house with
a standard minimum standard of 36 (thirty-six) square meters can be deciphed
as follows:
a. The 2011 Presidential Decree No. 73 on Building Development
The state lists the state-wide standards for the group I and
group II of 36 m², with the Iuas kaveling 100 m². (proof T-1)
b. Appendix I: General Guidelines House Simple Healthy House Minister
Settlement And Prasarana Region Number 403 /KPTS/M/2002 concerning
The Technical Guidelines for Simple Home Development Sehat (Rs Sehat),
The provisions of a simple home are healthy must be meets the minimum requirement
the space per person is 9 m². (T-2 proof)
c. When associated with an ideal family (nuclear family) that becomes
the Occupation and Family Planning Board program is, "2 children
better" assume one family number 4 (four) people, then
needs A minimum of 1 family is 9 m² x 4 = 36 m².
d. National Standards of Indonesia (SNI) 03-1733-2004 on Tata Cara
Housing Environment Planning in Urban, wide determination
The average minimum is based on human life factors, nature factors
and regulations building.
e. According to the SNI provision, the minimum occupancy requirement
for adults is 9.6 m² and the minimum Iuas requirement for
the children are 4.8 m². If it is assumed that 1 family consists of 2 persons
adults and 2 children, then the minimum total of Iuas is 28.8 m².
but it needs to be remembered in the SNI setting minimum Iuas
not enough with the minimum needs of adults and children-
the child is 28.8 m² but must be augmented by the area of the service floor
that is 50% of the total minimum floor Iuas of the occupants of the house, so total
The minimum Iuas requirement of the house is 28.8 m² + (50% x 28.8 m²),
so that the total floor area for 1 family with 2 (two) adults
and 2 (two) children were 43.2 m2. (Proof of T-3)
f. Health Minister ' s Decision Number 829 /Menkes/SKNII/1999 on
Home Health Requirements Stay is as follows:
107
1) Building materials (a) Not made of materials that can release any substances that can
harm health, among others as follows:
(1) Total Dust does not over 150 pg. m³
(2) The babas asbestos does not exceed 0.5 fiber/m³ /4hour
(3) Black Timah does not exceed 300 mg/kg
(b) Not made of any material that can be grown and
breeding of pathogenic microorganisms.
2) Components and Home space alignment The home component must meet the physical and biological requirements
as follows:
(a) watertight floor and easy to clean
(b) Wall:
(1) In the sleeping room, the family room is equipped with means
vents for air circulation settings
(2) In the shower and place wash must be waterproof and easy
cleared
(c) Ceiling should be easily cleaned and unprone to crash
(d) Bumbung home which has a height of 10 meters or more should
be equipped with a lightning rod.
(e) The space inside the house must be laid out to function as space
guest, family room, dining room, sleeping room, kitchen room, room
shower and child play room.
(f) The kitchen room must be equipped with a means of smoke disposal.
3) Lighting Natural lighting or is Iangsung or not Iangsung can
illuminates the entire section of the room at least 60 lux intensity and not
blinding.
4) Air Quality The air quality in the home does not exceed the following conditions:
(a) comfortable air temperature ranges from I8 °C to 30 °C;
(b) The air humidity ranges from 40% to 70%;
(c) The concentration of gas.SO2does not exceed 0.10 ppm/24 hours;
(d) air exchange;
108
(e) CO-gas concentrations do not exceed 100 ppm/8jam;
(f) The formaldehide gas concentration is not exceeding 120 mg/m³.
5) Ventilation Broad or natural ventilation of a permanent minimum of 10%
of the Iantai Iuas.
6) The disease's reaper's disease No mouse nesting at home.
7) Water (a) Available clean water with a minmal capacity of 60 It/hari/persons
(b) The water quality must meet the health and water requirements of clean water and water
drinking in accordance with the laws-which
applies.
8) Tersediest means of safe and hygenist food storage
9) Limbah (a) Liquid Limbah comes from home, does not contaminate the water source, does
raises the smell and does not contaminate the soil surface.
(b) Solid waste must be managed so as not to create odour, not
causes contamination of soil and groundwater surfaces.
10) The bed of a sleep space of a minimum of 8 m² of sleep and is not recommended to be used more than
two people sleep in one bedroom, except for minors
5 years.
If further study then the entire layer
society occupies a healthy and habitable home. Home is not
reasonably only as a residence and shelter from the weather heat
and rain, home must have a function as:
(a) Preventing disease
(b) Preventing accidents
(c) Aman and comfortable for its occupants
(d) Decline of mental and social tensions
Related to the judicial grounding of international law provisions among others
is set in provisions:
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1) That the minimum set of home floor area 36 (thirty-six) meters
square is associated with international provisions such as World
Health Organization (WHO) 1989 about the Health Principles of Housing
which stated that one of the principles of healthy homes among others is
protection against infectious diseases, poisoning and chronic diseases.
To satisfy that based on research issued by
Alberta-Health and Wellness of the United Kingdom in 1999 about the Standard
Minimum of Sehat House, regarding the floor area for the bedroom at home
The healthy is not to be less than 9.5 m² (proof of T-4).
2) Law Number 11 of 2005 on Concern International
Covenant on Economic, Social and Cultural Rights (ICESCR) (Covenant
International on Economic, Social and Cultural Rights), stressed
in recognition of the rights of all people over the standard of living which
is adequate, including guarantees for health and welfare; (T-5 proof)
3) The State Oblicity to fulfill the rights to the adequate standard of living
be guaranteed in Section 2 of the paragraph (1) ICESCR, that is:
4) "Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively progressively the full version of the rights recognized in the
present Covenant by all appropriate means, induding especially the adoption
of legislative ".
("Each party state on this covenant, promising to take step-
step, both individually and through aid and cooperation
international, in particular in the economic and technical fields of the available
Its resources, to progressively achieve the full embodiment of
The rights recognized by the Covenant are in appropriate ways, including
with legislative steps. ") (T-6 evidence)
6) Universal Declaration of Human Rights (Charter of Human Rights), Article 25
paragraph (1) states that "Everyone is entitled to a degree of living
sufficient for her health and well-being and his family,
including the rights to food, clothing, housing and health care
as well as the necessary social services, and entitled to bail at the time
idle, suffering pain, defect, be janda/duda, reaching advanced age
110
or other circumstances that result in a lack of a lack of living, which
is beyond its control". (T-7 proof)
7) International Covenant on Economic, Social and Cultural Rights in
General Comment Number 4 regarding Right to Adequate Housing (right to
decent home) issued on 13 December 1991 by
TheCommittee on Economic, Social and Cultural Rights, at 7
declaring that the home is eligible for wide eligibility
room, security, lighting/illumination, ventilation, infrastructure and
The feasibility of the distance between the house with the work and all the facilities
base can be filled with affordable cost. (T-8 proof)
8) As a comparison material, in the country Malaysia is good for the flat
simple and tread house, must have a minimum of 3 (three) bedrooms,
complete with kitchen space, family room, and bathroom, with a wide
floor minimum of 60 m² (Small Law Building Seragarn 1984
Bahagian III Number 42) (T-9 evidence).
9) According to the Guidelines for Healthy Housing World Health Organization
Copenhagen 1988, a minimum floor area of 56.5 m² with 2 rooms for the amount
a member of the 4-person family. While the standard of motion space is in
Guidelines for Healthy Housing World Health Organization Copenhagen 1988
The minimum motion room is 51 m² with 2 rooms for the family
with 4 family members. (T-10 proof)
10) Can be considered as a consideration, that the average floor Iuas of each unit
home in some countries as the data below:
The Broad State (m²)
Australia 214.6
United States 201.5
New Zealand 196.2
Denmark 137.0
Greece 126.4
Belgium 119.0
Netherlands 115.5
France 112.5
Jarman 109.2
Luxembourg 104.1
Spain .96.6
Austria 96.0
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Ireland 87.7
Finland 87.1
Sweden 83.0
Portugal 82.2
Italy 81.5
England 76.0
That in the perspective of the density, then the policy of the floor minimum 36 (three
tens) square meters in the a quo Act have
a significant correlation with density theory. Theoretically the density
is a result for the number of objects against the area's area. The unit used
is an area unit/area, for example, an /m². Some notions about
densities with a minimum home floor ivasa policy
36 (thirty-six) square meters may be followed by some expert opinion, among other
:
a. Density according to Sundstorm (in Wrightsman & Deaux, 1981), that is
a number of humans in each unit of the room.
b. A number of individuals who are in a particular space or region and more
are physical (Hoalan, 1982: Heimstra and McFaring, 1978; Stoklos in
Schmidt and Keating 1978).
c. A state would be said to be increasingly dense if the number of people at a
a specific space limit was more than the space area
(Sarwono, 1992).
The kesolids can be distinguished into several categories. According to the opinion
Hoalan (1982) density is classed into two categories, namely:
a. Spatial density (spatial density), occurs when large or wide room is changed
to be smaller or narrow while the number of individuals remains.
b. Social density (social density), occurs when the number of individuals plus without
is accompanied by a large or large addition of the room so it is obtained
the density increases in line with the corresponding individual.
Next according to Altman ' s opinion (1975) the density is divided into two, i.e.:
a. Inner density (inside density), i.e., a number of individuals who are within
a space or shelter such as density in a house and a room.
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b. Outside density (outside density), i.e., a number of individuals who are in
a certain region, such as the number of inhabitants residing in an
settlement area.
In Jain research (1987) states that settlement area
has different density levels with the number of home units staying at
any occupancy structures, and occupancy structures on any residential area,
so a settlement area can be is said to have high density
and low density. Similarly, Taylor (in Guilfford: 1982) argues
that the surrounding environment may be an important source in
influencing the attitudes, behaviors and internal states of the individual somewhere
stay. Homes and environments that have situations and conditions are good and comfortable
like having enough space for personal activities, will provide
psychic satisfaction on the individual that puts it. Schorr (in Ittelson, 1974)
believes that the quality and quality of the settlement may provide
an important influence on the perception of the occupant, stress and physical health,
so the conditions of this settlement seem to be effect on behavior and attitude-
the attitude of the people who live there (ittleson, 1974).
That Research Valins and Baum (in Heimstra and McFarling, 1978),
points to a close relationship between density with social interaction
students living in solid places tend to avoid social contact
with others. Research held by Karlin et al (in Sears et al, 1994)
attempted to compare students who lived both in one room
with a student who lived three in one room (a room designed for
two). It turns out that the student who lived three reported the stress
and the disappointment, which is markedly greater than that of a student who lived
both of them, the three of whom were also lower.
study the study. Home with a narrow and limited floor leas when populated with
large numbers of individuals will generally pose a negative influence on the
occupant (Jain, 1987). This happens because in a limited residence
The individual umumya has no room or place to be used for
private activities. Space limitations allow the individual to be stunted
for. It's all over. These circumstances ultimately led to the
the claustros on the individual dwellers of the residence.
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That, high density is the stressor of an environment that may incur
inaction for the individual who is in it (Holahan, 1982). Stressor
The environment according to Stokols (in Brigham, 1991), is one aspect of
the environment that can cause stress, disease or negative consequences
on people's behavior. According to Heimstra and McFaring (1978) density
provides a result for humans both physically social and psychologically. The physical
is a physical reaction that individuals feel like an increase in the heart rate,
blood pressure and other physical illnesses. Social causes include
a social problem occurring in a society such as rising
juvenile criminality and delility
A result of a psychic between others: Stress high density grows negative feeling, sense of camas, stress
(Jain, 1987) and mood change (Holahan, 1982).
Attract; high density causes individuals to tend to withdraw
and less likely to interact with its social environment (Heimstra and
McFaring, 1978; Holahan, 1982; Gifford, 1987).
The high density helpful behavior decreases the individual's desire for
to help or provide assistance to others in need, especially
an unknown person (Holahan, 1982; Fisher et al, 1984)..
Similarly Jain (1987) views that the number of home units of residence
in the settlement area has led to a solid settlement
causing a comparison between the area of the inhabited house is not comparable
with So many residents The distance between home-dwelling houses
other adjacent dwellers are only separated by a wall of the house or bulkhead and
resulting in residents can hear or know the activities performed
the occupants of another house. This is the situation that can cause individuals to feel
asphyxiation.
7) That in a theological perspective, according to Islamic religious teachings, home
is a panting part in family education and coaching,
so that the family can exercise its function optimally. The house is not
for being a place to stay, but the house is a seeding vehicle
values within the framework form the noble akhlaq whole members
his family. The most effective learning process is at home, because
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An effective communication process may be performed by all family members.
In Hadist the Prophet Muhammad S. A. W stated:
"
Send your child to do prayers at the moment they were 7 years old
and hit them when they left the prayer at their time
10 years old and separated their beds (H. R. Abu Daud) ".
The essence of the hadith above is, an order to each parent to educate
children for the first to carry out the prayers and the two separating the place
sleep them when aged 10 (ten) years. The spirit of the order
is for the children to grow well and be spared from things that
is not good like aberration of akhlaq, sexual deviation and
so on. The concept of "baiti jannati" or "my home heaven" translates
into the house as a place that gives a sense of security, comfort, and
quiet for the entire family. In addition, it is necessary to keep in mind that home
is a place in the fostering of family, cultural supplies, educating,
fostering religious values and religious values resulting in a family of sakinah,
mawaddah and warrahmah. Associated with the home area 36 (thirty-six)
square meters set in the Housing Act are certainly expected
can further meet the religious teaching demands to be able to rnenyeProvides the home
with the number of rooms that can satisfacterized the religious order.
8) That as part of the International community that
signs The Rio de Janeiro Declaration, Indonesia is always active in
activities initiated by United Nations Centre for Human
Settlements (UNCHS Habitat). The soul and spirit are confused in the Agenda
21 nor the Habitat Declaration of 11 that home is a necessity. basic
human beings and be the right for everyone to occupy the occupancy
worth and affordability (adequate and affordable shelter for all). In Agenda 21
emphasized the importance of the house as a human right, it has also been
emphasized by the Constitution of the Republic of Indonesia Constitution of Indonesia
In 1945, Article 28H paragraph (1) of the 1945 Constitution states "Everyone is entitled to
115
prosperous living and inner life, staying and getting the environment
living well and healthy as well as entitled to health care".
Next in Section 40 Law Number 39 of 1999 on
Human Rights, stated that, "Everyone has the right to take place
lives as well as the life of the Iayak".
3. The attributing of Article 22 paragraph (3) to the provisions of Article 27 paragraph (1), Section 28H
paragraph (1) and paragraph (4), and Section 28D paragraph (1) of the Constitution of 1945
1) That the applicant in his request applied for the testing
Article 22 of the paragraph (3) of the Act of Law (2). Number 1 Year 2011 on
Housing and Settlement Areas against the Basic Law
The State of the Republic of Indonesia in 1945. As for the tone of the a quo is
as follows:
Article 22 paragraph (3) of the Act No. 1 of 2011 on
Housing and Settlement Areas, states, " Area floor area
single-house series has at least 36 (thirty
six) square meters"
The applicant assumes the provisions of Act No. 1 of 2011
about Housing and Settlement Areas are contrary to
Article 28H paragraph (1) and paragraph (4), Article 27 paragraph (1), and Article 28D paragraph (1)
The Basic Law of the Republic of Indonesia in 1945, which
states:
Pasai 28H verses (1) "Everyone is entitled to a prosperous life born and inner, residence,
and getting a good and healthy living environment as well as entitled
obtaining health care"
Article 28H paragraph (4) "Everyone is entitled to a personal property and such proprietary right
not to taken arbitrarily taken by anyone"
Article 27 paragraph (1) "All citizens at the same time in law and
governance and shall uphold the law and government with
no exception. "
116
Article 28D paragraph (1) "Everyone is entitled to recognition, guarantee, protection, and
fair legal certainty as well as the same treatment before
the law."
2) That effectiveness of an Act as a unit of value
that lives in a society has a force of force, and is adhered to, when
that norm has been placed as a statement of greatness, well
statement of individual will and the statement of will of the maker
Act. The declaration of the will is realized either in
the form of a legal transaction or in an Act that
in it contains an element of command or must be obeyed
(validity) and applied. (effectiveness). Therefore, according to Austin, the law
is; "a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him". In principle of positive law
provides the affirmation that, first, a state legal grammar applies
for getting a positive form of a power institution; second, law
solely viewed from form formal, so formal legal forms
are separated from the form of material law; and third, the legal content is recognized for
is made a source of reference in determining public policy or action
other laws. In Austin's opinion, it can be described as a level
the effectiveness of a law can be seen and reviewed from
an authority that arises and is attached to any rules of the invite-
invitation. Authority is a particular concept of power arising
because of the position or position of a certain organ of power given
by law or simply called authority based on law. Standing
of this concept, then any authority arising from a rule
legislation is also hierarchical, i.e. the authority to
run the rules, and the authority to outline the charge material
The regulations are more detailed in certain regulations by the organs designated by
the regulations. The basic principle is either the charge material or
the authority that arises and is attached to any regulation of the invite-
the invitation happens to be harmonized, normative synchronization is vertically and sating
explains.
117
That a norm is a part of a dynamic system, if
that norm has been created in a way defined by basic norms.
It is to say that it is the norm. the law is valid, as it is made according to
a way defined by another legal norm, and the legal norm
others are the cornerstone validity of such legal norms. The relationship between
the legal norm that regulates the formation of other norms with other norms
as the relationship between "superordination" by "subordination" or "superior
with inferior norm" that indicates the level or the hierarchy of norms. Norm
which determines the formation of other norms is the higher norm
the derailer, so otherwise, the norm that is formed is more
low. In this relationship, the relationship between higher norms
with the norm below is the relationship of the norm hierarchy.
The consequence is, that the lower norm is not
justified in conflict with the norm. the norm on it. Thus, one
a legal entity is a sequence of hierarchical relationships between norms-
the norm with others hierarchically should not be contradictory.
It is to say that every legal norm has an element. force, either
on the pentacle side, nor the application side, and for this to be introduced
the element of sanctions. The validity of the validity of the legal norm is that any matter
the charge of legal norms has a binding and force for the subject of law
in particular in performing any legal action. While the effectiveness of
the legal norm, meaning the application of legal charge material by an organ that
has the authority to apply a legal norm.
3) That the provisions of Article 22 of the paragraph (3) of the Housing Act are
The derivation of the provisions of Article 28H paragraph (1), and paragraph (4) of Article 27 paragraph (1), and
Article 28D paragraph (1) of the Constitution of 1945, so hierarchically agrees with
the provisions of Article 28H paragraph (1), and the paragraph (4) of Article 27 of the paragraph (1), and Section 28D
paragraph (1) UUD 1945 both philosophical, sociological, and yuridical runways.
As described above that the provisions of Article 22 paragraph (3)
The People's Housing Act regulates the feasibility of an
occupancy by providing a minimum standard with the intent to guarantee
legal certainty, ensuring the health aspect, social, environment and
the occupant of the occupant ' s mobile space in conducting an intercation
personal and social. This provision is in line with Article 28H of paragraph (1) of the Constitution
118
1945 affirm that, " Everyone is entitled to a prosperous life born and
inner, residence, and getting a good living environment and
healthy as well as entitled to a service health ". This provision
contains the order that a prosperous life is born and an inner, located
stay, get a good and healthy environment and service
health is a basic right to be noticed and fulfilled by
country (to respect and to fulfill of the citizen's constitutional rights and The
the Human Rights). This indicates that public policy in the field
housing should refer to the aspect of the guarantee of birth welfare
and the inner as well as the healthy physical and social environment. The provisions of Article
22 verses (3) of the Housing Act are instead directed at an attempt to
increase the harkat and dignity, order and welfare of the people,
as well as the social environment conducive to the formation of the watak And
A nation's personality as one of the efforts to build an Indonesian human
fully, self-identity, self-suss, and productive. This means public policy in
the housing field is not just the fulfilment of basic rights in the field
lives physically alone by ignoring the welfare aspects and
health as well as a healthy environment, but rather a home or residence
it must be associated directly (inheren) with aspects
welfare, health, and environment as required
by the minimum standards of service in the field of national good housing and
international as described above. Similarly, if Article 22
paragraph (3) of the People's Housing Act is associated with Article 27 of the paragraph
(1) of the Constitution of 1945 which asserts that, "All citizens are at the same time
The two are in law and government and required to uphold
the laws and governance with no exceptions", then it could
be explained the a quo statement there is no indication of discrimination and
marginalized against the community. The a quo provides
equal standing and opportunities to everyone (people) and citizens
(citizen) to get home as a place to stay in order
fostering and developing its own rights In the family,
citizen and country. Therefore, the a quo provision does not exist
the element is at least contradictory to Article 27 of the paragraph (1) of the 1945 Constitution.
anyway if the provisions of a quo are associated with Article 28D of the paragraph (1) of the 1945 Constitution
119
confirming that, "Everyone is entitled to the recognition, guarantee,
protection, and fair legal certainty as well as the same treatment in
before the law", then It can be explained that instead the provisions
a quo provide fair legal certainty and no element
discrimination and marginalization of part of society especially the public
user Iangsung. There is no constitutional loss for the community
as the user of Iangsung residence (steakholder). The provisions of Article
28D paragraph (1) of the Constitution of 1945 prohibit all parties from both the citizens
states and states to be discriminatory and marginalized against
a part of the people of the Republic of the Republic of the Republic of the Republic of America. Indonesia.
Thus the provisions of a quo in accordance with the provisions of Article 28D
paragraph (4) of the Constitution of 1945.
IV. Conclusion
The government believes that the provisions of Article 22 paragraph (3) of the Act
Housing not least contains the constitutionally adverse elements
for the members of the Indonesian public because of the provisions of a quo Corresponding
vertical with the provisions of Article 28H paragraph (1) and paragraph (4), Section 27 of the paragraph (1), and
Article 28D paragraph (1) of the 1945 Constitution. The government is determined that the implementation
a quo provision will drive up the regulation acceleration and arrangement
a healthy circle of insightful housing, including the policy related to
minimum floor area 36 m² viewed from a health angle more fulfilling
health requirements for its occupants among other wigs, lighting,
and hawkages. From the sociological and philosophical perspective that the floor area
The minimum of 36 m² is more hopeful to be able to form the family's identity;
watak, as well as the personality of the nation. Even viewed from a theological angle, that
with a minimum floor area of 36 m² with 2-bedroom specifications, living room
and kitchen as well as bathrooms can be more fulfilling religious advice, due to the teachings
religion advocates that bedroom for child and parents must be separated
even if having a child different sex her bedroom should be split.
Terms a quo if associated with an international setting about the area
minimum hunian, then settings in Indonesia (house floor area 36 (thirty
six square meters) still far below international standards.
The relayed maturity is obvious, so that what is delivered by
The applicant does not prove to be a constitutional loss. Nevertheless
120
The Indonesian government is striving gradually to be able to meet the standard
international for the minimum home setting.
V. Petitum
Based on that explanation above, the Government pleads to the Assembly
The Constitutional Court justices are examining, prosecuting and severing
plea for testing Act No. 1 of 2011 on Housing
and the Settlement Area of the Constitution of the Republic of the Republic
Indonesia in 1945, may give the following verdict:
1. Declaring the applicant has no legal position (legal standing);
2. Rejecting the applicant's testing request for the whole or at least
may not have been accepted
(niet onvankelijk verklaard);
3. Received overall Government information;
4. Acknowledge Section 22 of the paragraph (3) of the Number 1 Act of 2011 on
Housing and Settlement Areas do not conflict with the provisions
Article 28H paragraph (1), Section 28H paragraph (4), Article 27 of the paragraph (1), and Section 28D
paragraph (1) The Constitution of the Republic of Indonesia in 1945.
[2.4] Draw that to prove its interest, the Government
has submitted written evidence given the Proof of Pem-1 to the
Proof of Pem-8, and the Pem-10 Proof as follows:
1. Proof of Pem-1: Photocopy of Presidential Regulation No. 73 of 2011
on State Building Development;
2. Proof of Pem-2: Photocopy Decision Minister Settlement and Prasarana
Region Number 403 /KPTS/M/2002 on the Guidelines
Technical Development of the Simple Home Healthy Home (Rs
Sehat);
3. Proof Pem-3: Photocopy SNI 03-1733-2004 Tata Cara Planning
Environment In Urban;
4. Proof of Pem-4: Photocopy Minimum Housing And Health Standards;
5. Proof of Pem-5: Photocopy Act No. 11 of 2005 on
International Covenant on Economic, Social
and Cultural Rights (ICESCR) or International Covenant
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on Economic, Social and Cultural Rights;
6. Proof Pem-6: Photocopy International Covenant On Economic, Social And
Cultural Rights;
7. Proof Pem-7: Photocopy Universal Declaration Of Human Rights;
8. Evidence Of Pem-8: The Photocopy The Right To Adequate Housing [art. 11 (1)]
: 13/12/1991. CESCR General Comment 4. (General
Comments);
9. Proof-10: Photocopied Guidelines For Healthy Housing;
In addition, the Government submitted 4 (four) experts and 6 (six) witnesses who were heard of in front of the trial on April 17
2012 and the 25th April 2012, in which case, provides the following
as follows:
The Government of Government 1. H. Hasanuddin AF
That experts convey the description of the Islamic teaching point of view,
already goods are certainly not speaking from the economic side, purchasing power capabilities
society, and others.
Act No. 1 of 2011 on Housing and Regions
Settlement [Article 22 verse (3) in Islamic perspective] one of the rules
related to government duties and liabilities is stating tasaruful
innamalariah manutun bil maslaha [Sic!] which means any action and
the ruler's policy towards its people must refer to the health of the people.
The people. The problem indicator is to provide benefits and avoid
mudarat. The fact that the majority of the Indonesian population is
Muslims therefore Act No. 1 Year 2011 on Housing
and the Settlement Area should pay attention to the home of the islami.
What is the meaning of the house of the islami? Surely it is the home that
well-being the welfare of its inhabitants, which benefits and does not
raises the muland to its inhabitants. What kind of house
provides benefits for its occupants? certainly is a decent home
habitable, safe, comfortable, healthy, harmonious, and prospective. Home that
raises muland for its occupants, already goods are certainly home
uninhabitable, insecure, uncomfortable, unsanitary, inharmonious,
and not prospective.
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Regarding a prospective home like what? The home type that
prospective is a home that pays attention to the conditions of its occupants already
items of course. There are houses whose conditions are inhabited by themselves, but to
in front of how if married or already married, how would
already have a child, at least two.
The prospective home type is, which is first, the home inhabited
by the husband ' s husband. Islam teaches that there is no harmony between the husband
wife whose cause came from the wife's side, in terms of his mind nusyuz,
the husband's side was ordered to split the bed or break the bed with
His wife. While the husband's advice was not inhospitable by his wife.
How can a separate bed, bed if his house type is below
36. Word of God SWT, wallatitahofuna nuzanhuna faizduhuna
wahjuruhunafilmadoji, "The women you are worried about nusyuznya, then
be careful of them and separate them in their beds." This verse
hints that the type of house that the occupant husband is married to, at least must
has two bedrooms, aka the least-sized house type of 36 m².
The second, the home of the wife of the wife who has had a child. Islam
teaches that if a child has reached the age of 7 years what else if one
men and one woman then parents are instructed to separate
their beds. In such conditions, the type of house that its occupants
husband and wife plus 2 children must be at least three bedrooms, aka the house type
at least 45 m².
In addition to that Islam teaches parents to educate
his son as early as it may mainly concern his religious education, Prophet
SAW teaches that parents order children who have reached
age 7 years to carry out the five-time mandatory prayer. This Prophet's gift
hints at home the Muslim house must have one room
special prayer room, this means the type of house whose occupant husband is plus wife plus
at least 2 children must have 3 bedrooms plus 1 special room Prayer hall
aka the house type at least 50 m².
Sabda Rasullah SAW, "Muruauladakum bissolah idzabalagun
wadlibuhum alaiha idzabalagun ashron wafarikubainahum filmadozhi," [Sic!]
Which means, send your children to carry out prayers if it has been
7 years old, and if it's 10 years old, tell them to be tougher,
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and separate them from their beds, Hadis History Ahmad, Abu
David and Al-Hakim.
The above provisions must be room for separation
bed with wife, must be a separate room for children, and should
the special room of prayer hall is the legal conclusion of the rule
ushul which states, "Al amru bi saiyi amrun bi wasaili," [Sic!] means,
the order to carry out something means ordering anyway
his will or any medium or medium possible
lactating the order.
Conclusion 1. A prospective home type in an Islamic perspective is the home that
has a minimum size of 50m².
2. The provisions of Article 22 paragraph (3) of the Law No. 1 of 2011 on
Housing and Settlement Areas are still below the minimum standard
prospective house type according to Islamic view.
2. Aca Sugandhy That according to the expert, the applicant declared the actual loss not
regarding the loss of the pretested provisions, due to the arrangement
and the provisions of a quo instead are the mandate of the Constitution of 1945 in particular Article 28H
paragraph (1) which is the responsibility to the state, not just on
the government. The state is the responsibility of the Government, including the society
and the developers. To protect the entire Indonesian nation so that
the public is able to reside, but not just a place
a stay but a habitable, affordable place in the environment
the healthy, amanah, harmonious.
So it must be binding because in vision and expert experience if
is not legally binding and long-term to guarantee
The hosted home is habitable. In fact, in the early 1950s we were
newly independent. Founding father, our ruler of the first one has held
a housing congress. That is the minimum requirement to build a habitable house
is a minimum of 45m² up to 50m² for one family head with hunian 5
a soul later due to economic considerations alone, at the expense of
technical considerations that actually being uninhabitable, consciously
has developed type 18, type 21, and type 27, though as home
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is growing, but the reality is inhabited by a lot of 5 or more souls, already
approaching to the standard of its can-can be two or three meters
square, it becomes a stay in the cemetery?
That the type of time was developed famous by the RSS name
or was eventually popular in that society into a very simple home and
it was hard for everything and finally to meet it to be habitable.
developed the luasan itself and became a sulam tambal as it usually
the building materials have been no longer since it was rebuilt because the manufacturer
is closed. Or even the size of the size because it's also a matter of not
standard, precarious, ceramic, change continues, and it should also be there
studies in order to lower the building price of that house
with Standard size and local building materials.
Then in its development finally tried to see it
social, affordable, and habitable. Thus, from the RSSS it becomes home
simple healthy, simple but healthy in the per-capita sense of 9m².
That the last expert knew from the social corner eventually. If it is simple
healthy then it is not prosperous, then it is prosperous, tread, and rusun.
But it is actually an operation whatever the name of the law should be
binding. So don't agree with a binding number. But from
our experience becomes adrift, translating to be habitable and
prosperous and affordable it is. Whereas technically from a religious angle and
so indeed the per-capita minimum of it should be nine or ten meters
square. So the 36 square meters it is minimal, if it has n' t achieved it should
achieve that, if it is more please based on the ability of the society
it is.
That Expert argues the Government has been appropriately pledging to
The Assembly of Justice of the Constitutional Court, wisely exercised
the plea is not appropriate because from the basic angle of law is not fundamental
in a sense interpret what the Act has mandated
Basic 1945.
That the Expert conveyed in detail to the material that
was honed about the area of the floor. The government has delivered a reference-
reference based on historical, juridical, philosophical, expert opinion abroad, and
also the various types that are in this delivery in whole. Expert
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relayed to the Assembly regarding the referenced Act and
so forth.
So, the point is that it is actually in order to translate
the mandate of the Constitution of 1945 and attributed to the article in Act No. 1
The year 2011 has been stuck to the economic analysis alone regarding the
range. So, as long as it can be squeaking, the people please enjoy it. Whether
is indeed worth having a healthy habitable, that ' s the last affair, please
add it yourself.
That from the corner of the Act, it ca n' t. It should be binding on where
only a luxury home, or a modest home, or for MBR, at a minimum because
The healthy one is 9-10m² per person. This should be re-developed
and according to the Expert padangan should be interpreted correctly and
intact, not just of one aspect alone.
That to realize the right, and to get a stay that
deserves Or where the residence is meant, it must be associated with an aspect of
health. In fact, Act No. 1 of 2011 related
with another Act of Health Act,
and so on. If it changes the minimum provision, it does
extend some of the perinvitation regulations associated with
house development. The Health Act is one example, which
others do not need to be set any longer here. And the principles of human rights
nationally and internationally. WHO committed to
hosting this global life also carries out what it has
to be an international agreement.
So, as such, the Expert agrees that the provisions of the Invite-
Invite Number 1 regarding the 36m² of the floor area is the
standard reinforcement that must be held and legally binding. Because
if it is not listed, it will be a bother. How to translation
implementation, later in government regulation.
That philosophically also refers to the Government's opinion that
the order of the existence of a habitable home would be very decisive
quality Society and its environment in the future. So, repressed from
the religious corner should be perspective. We're not just building a house for one.
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people though growing, or two, must be one person, two people later
will be home to the family.
That in anticipation of the need to be tamballed
sulam, then we set that minimum 36m². Thus, through the manner of setting
in the Act is not only normative only, but also
explicitly binding legally for a minimum habitable measure for an
home stay.
From the historical angle, According to the expert, there's no need to repeat that.
How do we want to develop in the past legislation
There seems to be a balance between development somewhere in that area
between the luxury home or the middle house and the That's the 36 concept, that's it.
Hard. Because the problem is an economic approach only, forgetting the problem
location, and how the land price controls, and the use of materials
can be seen by cross-subsidised between home construction that
is expensive and which is indeed The public cannot. That's where the efforts
the outreach should be equally discussed.
The yuridis issue, indeed it must be binding, which the applicant is asked
to be removed. According to the Expert, if removed, then we will lose
the handle on the habitable habitation and also the affordable in the days
that will come. May be due to limited time, here the experts do not want
read out other things pertaining to the rules
international. It's a theological problem, too, so the Expert concludes
expert opinion.
Based on all the opinions that have been delivered before,
then agree with the government's conclusion. Where the foundation is
philosophical, historical, sociological, juridical, and technical, it has been wadahi and fulfilled,
not just economically alone. Then the provisions of Article 22 of the paragraph (3),
the housing of the people governing about the feasibility of a hunian with
provide a minimum standard with the intent to guarantee legal certainty,
it is also according to experts that have been fulfilled, in the Side guarantees the
health, social, environment, and movement of the member's motion room
occupant in conducting personal and social interaction, referring to
the sectoral laws associated. The expert agrees with the Government and
believes that the provisions of Article 22 paragraph (3) of the Housing Act
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none of the elements contain the constitutionally amended element to
members of the Indonesian public. Thus, the Expert opinion is clear,
so that what the applicant has delivered is not proven to be a loss
constitutional. That may be set up in government regulations.
Based on that explanation above, the Expert pleads to the Assembly
The Constitutional Court justices who examine, prosecute, and disconnect
plea for testing, can provides a ruling as follows:
1. Dismissing the applicant's testing request for the whole or not-
the request of the applicant testing is not acceptable;
2. Declaring Section 22 paragraph (3) of the Law No. 1 Year 2011
on Housing and Settlement Areas does not conflict with
the provisions of Article 28H paragraph (1), Section 28H paragraph (4), Section 27 of the paragraph (1), and
Section 28D paragraph (1) The Basic Law of the Republic of Indonesia
In 1945.
3. Yusril Ihza Mahendra In connection with the application for testing norms of Article 22 of the paragraph (3)
Act No. 1 of 2011 against the norm Article 27 paragraph (1),
Article 28D paragraph (1), Article 28H verse (1), paragraph (2) and verse (4) of the 1945 Constitution.
The expert deliberately combines two test applications of the Act
submitted by two different applicants, namely first, on behalf of Aditya
Rahman, Jefry Rusadi and Erlan Basuki, with a second request, over
name The Board of the Center for the Association of Housing Developers Association and
All Indonesia Settlement, with intent solely
to ease understanding, as the Applicants are equally
apply for the test to test the norm. Article 22 paragraph (3) Invite-
Invite Number 1 Year 2011 on Housing and Regions Settlement,
while using a different constitutional norm test stone, however
interest facilitates the delivery of this expert description, the norm of article-
article UUD 1945 is intentionally unified.
The applicant consists of individual citizens of Indonesia and
an association, which may be classed as a public legal entity according to
Article 51 of the paragraph (1) of the Law No. 24 of 2003 on the Court
Constitution. The expert cannot ascertain whether this association is really
an organization that has gained status as a public legal entity
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which has been authorized by authorized officials, both the Minister of Law and
human rights (if the governing law of association or foundation) or by the Minister
Within the Country (if the organization body is shaped It's true. Article 51 of the paragraph
(1) it also requires the petitioners to describe it as clearly as-
clearly that they have constitutional rights granted by
The Basic Law of 1945, and those rights are real, specific,
actual, or at least according to reasonable reasoning, the potential could
be confirmed by the enactment of an Act norm, in
this is the norm Section 22 paragraph (3) Act Number 1 of 2011 about
Housing and Settlement Areas. Norm of the Act
says, "The single home floor and the house of the series have the most size
a little 36 (thirty-six) square meters". Viewed from the pure angle of the norm
Act, by reading the norm Article 22 paragraph (3) of the Act
, the petitioners have not clearly stated whether their loss
their constitutional is as provided by Article 27 verse (1), Section,
Article 28D paragraph (1), Section 28H paragraph (1), paragraph (2) and paragraph (4) of the Constitution of 1945, which
at its core contains the warranty of equality in law and government,
the guarantee of fair legal certainty, the right to a prosperous life born and inner,
the right to obtain special ease and treatment as well as the right to
has a private property that should not be taken under authority-
the authority by anyone, as a constitutional right granted by the Constitution
1945 to the applicant.
The individual applicant, does not explain whether or not to be a member of the state. loss
its constitutionality with the prevailing norm Article 22 paragraph (3) Act
No. 1 of 2011, but instead suggests that they are workers
with a low income under two million rupiah months, so
by considering the assumption that the current house price is with the building area
36 meters square is a hundred and thirty-five million rupiah, then they are not
may be able to buy or build a house at such a price.
Whereas the association applicant is a group of housing developers
and settlements, which mentioned that its members were determined
to build a bargain house for 25 million rupiah, it may require
a size of a house that is smaller than 36 square meters as the norm
is set in Article 22 of the paragraph (3) Act No. 1 of 2011.
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The calculation of the economic capability is associated with the Community revenue
Low Income (MBR) as suggested by the applicant
may have a point, if associated with Their ability to purchase
or build a house with a minimum size of 36 square meters, but the thing
is not directly related to the norm of the Act as
is set in Article 22 of the paragraph (3) of the Act No. 1 of the Year 2011, and also
not real-real, actual and specific have been adverse rights
the constitutionality of the Applicant as set out in Article 27 paragraph (1),
Article 28D paragraph (1), Article 28H of paragraph (1), paragraph (2) and paragraph (4) of the 1945 Constitution.
Article 22 paragraph (3) of the Act No. 1 of 2011, as
has been experts, contains the norm stating that the home floor area
single and house of the series has at least 36 square meters. Norm
This is not understood what it means, unless we do an interpretation
systematics by associating this norm with the norms of previous articles
in the Act, thus forming an understanding
intact. the single home floor single and home series as intended
by Article 22 of the paragraph (3) it must be understood in its context with the Article norm
18 letter f containing orders to the Government of the county and city for
provide infrastructure and housing development facilities for the Community
Low-Income (MBR) in their respective areas. That home
that must be built with the least 36 square meters of it
is the single home and the home of the series, which is the home built above
the ground as a building, either single and in-line, together wall
one with the other. While for the flats, which is mentioned in
Article 22 of the paragraph (2) of the letter c, it is not specified how much it is minimized.
Single house and home-series of such minimal size
categorised as a "public house" as set in Article 21
paragraph (1) letter b and verse (3) are indeed specially built to meet
home needs for the Low-Income Society. Similarly
flats are not limited to how many measures are minimally. By understanding
this context, it is associated with the county/city Government's obligation to
providing the means and infrastructure of residential development for MBR,
with a home form classed into three categories, namely home
single, house of series and rearranged houses, has actually met the mandate
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Article 28H paragraph (1) gives the right to any person for life
prosper and inner. That MBR can have any type of home
with these three categories according to its ability, either with cash
or by squeaking in accordance with the county/city Government policy in
the respective regions.
There is an MBR capable of buying a single home or home series
with a minimum size of 36 square meters at a price that is one cheaper
than any other. Or if unable to buy one of the two types
the house, they can buy a flat flat that would be
cheaper than the single home and the home of the series, let alone
with minimal size Which is unrestricted. With the norms
fully understood as I do this, then all MBR
is expected to be able to have a modest home, both single home and
the house of derat whose minimum size is 36 square meters, or have
stacking houses whose size can be smaller than 36 square meters. For
developers, it is not enough reason to say that their
effort will go bankrupt because if it builds a single house and a series house
for MBR, they won't be able to buy it considering the price isn't
affordable. These developers, able to diversify its business activities from
build a single home and home series, by building a home
setup, so that the target to build a house for a price of 25 million rupiah,
is very likely to be fulfilled with building apartments.
Expert argues, that the norm Article 22 paragraph (3) Act
Number 1 of 2011 which regulates the minimum size of a single house and home
the series built to meet the needs of MBR, is not conflicting
with the principle of equality before the law and governance as
set in Article 27 of paragraph (1) of the 1945 Constitution. The section has also been
containing clarity and legal certainty, so it is not contradictory
with Article 28D of paragraph (1) of the 1945 Constitution. Norm Article 22 paragraph (3) Invite-
Invite Number 1 Year 2011 on the minimum size of a single house and home
the series is 36 square meters also unopposed or instead of
related to the norm Article 28H verse (3) about the warranty
social. Moreover, it is associated with the norms of Article 28H (4) that govern
about the recognition of personal property rights for any person who is not
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may be arbitrarily deprived by anyone, a provision of measure
at least a single home and a series house of 36 square meters, which
is built specifically to meet the needs of MBR, nothing to do
samaonce. The MBR is instead based on Article 22 of the paragraph (3) it reserves the right to
own the house in which it is reserved, and that right cannot be usurped by anyone
by arbitrary means
4. Yusuf Yuniarto Article 28H UUD 1945 stated that:
(1) " Everyone has the right to a prosperous born and inner life, residence,
and get a good and healthy life environment as well as entitled
get health care;
(2) Everyone deserves a ease and special treatment for
obtain the same opportunities and benefits to achieve
justice equation;
(3) Everyone is entitled to a social guarantee that allows
development herself intact as a dignified human;
(4) Each people have the right to have their own personal and proprietary rights
cannot be arbitrarily taken by anyone".
In this case according to the paragraph (1), the residence can be interpreted domicile
settling down location all over the motherland, but the location anywhere in the end
the home-shaped place.
I. Home Understanding
Therefore home that can support birthright and inner welfare
is a home able to guarantee, health of birth and health
inner. In this case in the general provisions of Act No. 1
The year 2001 stated that:
1. home is a building that fungi as a dwelling
that is habitable;
2. serve as a family coaching tool;
3. It is the reflection and dignity of its occupant;
4. is an asset for its owner.
According to Act No. 28 of 2001, building buildings are
all buildings that are construction results. Building buildings
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It is quantised according to its function. Bridges, dams, and roads
are included in building buildings. There is a building that
works for the residence. Not all building buildings for places
stay included in the sense of the house, because the house functions double,
in addition to the residence, but also a means of family coaching,
the social status mentioned by the The reflection and dignity of the owner.
The occupant and the asset is the owner. The hotel also functions
as a residence but the hotel is not a home, as the hotel is not
is a means of building a family.
Building buildings, such as an elevated bridge, a bridge over the river many
be enabled as a residence by a group of people, but
not in the sense of the home, because the main function is indeed not a place
stay, not Iayak habitation, not intended to build a family, not
is a copy harkat and dignity.
Layak inhabited has 3 main criteria:
a. meets building safety requirements;
b. satisfy the minimum broad adequate and;
c. guarantee the health of its occupants.
The building's safety requirements are in place of fulfilling construction
The rules of the construction science, so that if there are any outside things
ordinary circumstances such as earth gampa, strong winds and other disasters
including fires, the building survived in a sense of non-collapse. The rules
about construction are set up in more detail in Law No. 28 of the Year
2001 on Building Building and its Lactating Regulations.
II. Minimum floor area requirement
meets minimum Iuas adequates strongly related requirements with
primary health, i.e., i.e., the need for oxygen, especially at the time
main openings at the closed house, (door and windows), opening of openings
hawking (vents).
In this regard according to the Indonesian National Standard which refers to
the need for study by Neufert, Ernest, the oxygen needs of otang
adults are ranged from 16 m³ to 24 m³. While
the children are half as adults. With an average height of the ceiling
home of 2,5m², if the amount in one family 5 people (SNI) then the area
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The minimum floor required to meet the oxygen needs of
the fresh air air flowing changes every hour, is 9.6 m² per
person.
With the sum in one family 5 mothers + father + 3 children, the need
The minimum floor for sufficient oxygen needs is 33.6 m². Wide
floor
for service space (service floor) is 50% of the Iuas floor requirement
oxygen, or an area of 16.8 m², (kitchen, living room bathroom) so spacious
The total floor of the house is 50.4 m². Where coupled with space
offerings and floor-wide learning space will increase again.
By the same way of thinking and with the empirical data of Indonesians,
The Department of Department Settlement Research Center (now the Ministry)
General work gets the minimum floor area for adequates
oxygen dwellers are found 9m², (note: with data
The empirical number of households in Indonesia is averaging 4 adults 2 adults and 2
children. In addition to the floor requirement for a service room
at 50% it will be obtained by a minimum floor requirement of 440,5 m².
For the construction of a more efficient construction home
using modular stanaar building the rounding of the numbers house
down to 36 m², much more efficient than the mathematical numeral 40.5m²
(modular standard according to SNI attached).
The empirical data also states that many of the home dwellers are found
with the 36m² floor Iuas, creating a kitchen with building materials
simply outside the home that has been awakened.
III. Hawking, Lighting and Sanitation.
To improve the health of the diru needs oxygen, hawkages other than
to stream fresh air in house buildings, also airflow
needed to cool the air The rooms are in the house.
The openings are 20% to 30%, so the residents will be not
the inward. Openings can reduce the influx of smoke from the inside of the kitchen
into a home that would reduce the risk of inhaling lungs
which is not clean.
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Similarly lighting in nature will help reduce
indoor air humidity in the rooms that reduce risk
develop or survive various bacteria and bodies Other trace.
Sanitation that can be solid Iimbah and liquid waste should be immediately
thrown out of the room in the house. Household waste other than
the breeding nest of bacteria and other renic bodies, also producing
the unsavable odor as well as inviting Ialat or similar that
is a vector (animal that spreads) a variety of diseases.
The unwasted liquid Limbah immediately is also a nest
developing a germ and renic body causing disease and
developing a vector of a vector, such as a mosquito.
With that requirement the house is called habitable, meaning physically
functioning well as a place to stay.
IV. The Impact Did Not Comply With The Minimum Iuas adequate
If the minimum extent of the bedroom and service room is not
fulfilled will impact:
a. The occupants of oxygen were not well met, it impacted
on the share of the disease, human health experts/doctors can
provide a more detailed explanation (the results of the various studies are attached).
Hypovontillation, is a body effort to issue
carbon dioxide with enough done on ventilasialveolar
as well as not enough oxygen-marked use with the presence of
headache, decrease Disorientation awareness, or imbalance
The electrolyte that can occur due to atelectasis, the granulation of the muscles
breathing, respiratory-center defretion, increased airway prisoner,
the decrease in lung tissue custody, and toraks, as well as decrease
compliance of lung and thorax 6. (Oxygen Article Library: Oxygen Benefits
For The Body)
b. with uncovered bed space and service room,
inner (psychology) residents will feel the trouble, psychologists more
can defile more detail (the research results are attached), where
impact The sequel will be, like, aggressive.
135
According to Altman (1975), in the study of sociology since the 1920s,
variations in density indicators relate to social behavior.
Variation of density indicators included:
The number of individuals in a city
The number of individuals in the census area
The number of individuals in the residence unit
The number of rooms in the residence unit
The number of buildings in the environment around and others.
According to Heimstra and McFarling (1978 concluded due to density
for humans both physically, socially and psychically as follows:
Due to a physically physical reaction that individual feels like
increased heart rate, blood pressure, and other physical diseases
(Heimstra and Mefarling, 1978).
socially due to social problems occurring
in societies such as rising criminality and mischief
teens (Heimstra and McFarling, 1978; Gifford, 1987).
Due to psychically among others:
1. Stress, high density can foster negative feelings,
taste of camas, stress (Jain, 1987) and mood swings
(Holahan, 1982).
2. Self-interest, high density causes individuals to be inclined
to withdraw and less want to interact with the environment
social (Heimstra and McFarling, 1978; Holahan, 1982; Gifford,
1987).
3. Behavior helps (prosocial behavior), high density
lowers the individual's desire to help or give
help in others in need, especially people who
not known (Holahan 1982; Fisher and others). Kawan-kawank, 1984).
4. The ability to do tasks, solid situations decrease
the ability of the individual to work on the tasks
at any given time (Holahan, 1982).
5. Behavior of aggression, the solid situation experienced individuals can
foster frustration and anger, as well as at the end of the will
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formed the behavior of aggression (Heimstra and McFarling, 1978; Holahan,
1982).
In solid settlements, individuals will generally be faced with a state of unpleas
. In addition to space limitations, individuals also
flows a more complicated social life. This solid state
allows individuals to not want to know the needs of other individuals in
around but pay more attention to the things that relate to
interests as well as less attention to social cues. that
appears. One negative effect that occurs as an individual response
against environmental stresorts such as the solid environment is the decline
the individual prosocial intensity.
c. Unfulfilled, the minimum occured of the occupants will be
feeling the disservice of the harkat and the dignity of social events (feel
to be the marginalized citizens).
V. Conclusion
1. Thus the minimum broad adequate of the 36 m² house is
a very minimum area, (by reducing the space area
of service, due to an empirical secaar of the occupant adding to the kitchen outside
the house is awakened to the 36m²) which should be to reach
prosper born and inner (see the impact that can happen) minimum 40.5
m².
2. In execution to achieve a habitable residence as well as
fulfilling the function of the other house is set further in regulation
execution, but to improve or achieve well-being
born and inner of The minimum broad needs of the home floor
as in Section 22 of the Act must be fulfilled given
The extent of the area is minmum.
3. Based on an expert explanation, the Expert pleads
to the esteemed Chairman/Assembly Justice of the Constitutional Court can
be a consideration in examining, prosecuting and severing
Number 1 Year 2011 on
Housing and Settlement Areas against the Basic Law
The State of the Republic of Indonesia in 1945.
137
Government witnesses 1. Aris Harun
That since the last 10 years of this housing in Pekanbaru, for
the type 21 house is not in Pekanbaru, but for house type 27 and type 36
in Pekanbaru there ever was.
That in 1991 Witnesses purchased the type 21 house in Pekanbaru, and
is now still occupied.
2. Muhammad Zamroni
That Witness his job as a health care man with income at
down Rp 2.000.000.00, in 2005 bought the type 21 house, in the area
Bekasi, Rawalumbu, with a term of 10 years, every
The moon pays Rp 388,000.00, Then the type 21 house was developed
on its own, by adding one room and kitchen;
3. Samiri Sanjaya
That in 1979, when the Government opened the perumnas in
Tangerang, Witnesses tried to raise credit for getting home
type 21 and type 33, with a building size 6x3 meters, land area 96
meters. At that time the new Witness's salary was Rp 67,500,00, and the repayment of the mortgage
only Rp 3,000.00, so that the Witnesses can pay for it; due to dikira
The witness is a good facility from the Government, then the witness with three
his son emigrated from Jakarta to Tangerang in hopes of improvements
life in Tangerang, rather than Witnesses in Jakarta contract continued.
That according to a type 21 witness is very less worthy of three children,
plus one bed bed, kitchen, and the living room, let alone if plus
the narrow seat of the extraordinary, let alone any day if Get up early.
Meet with the next-door neighbor because of the WC-1. Finally WC
it was built with a wall of batako together with neighbors.
Then eventually the house Witness developed to achieve the feasibility of
in terms of health, and social terms in society. One experience that
draws out that a Witness is made lurach in the area. And eventually her home
built so that up to now consisted of 3 bedrooms, room
vents, warehouses, and one small musalah;
138
According to Witnesses, the Act is not solely thinking
economical, but is strongly thinking in the future. How is it that
the nation, the Indonesian community has a decent home?
In conclusion, with the house type 21, Witness is inhuman
again, there must be a home space that can truly be as
the center of the welfare place, the happy place, which can
send a child, and so on.
4. Saimin Iskandar That Witness conveyed his interest in the history of founding and
the task/role of Perum Perumnas (Housing Development General Company
National), i.e.:
1. Perumnas stood on July 18, 1974, and based on Regulation
Government Number 29 of 1974, which was revamped with Regulation
Government Number 12 Year 1988 which later refined the Regulation
Government Number 15 Year 2004.
2. As the State-owned Business Agency (BUMN), the role, nature, intent, and
the purpose of the establishment of Perum Perumnas (PP 15/2004) was:
a. The use of the tasks and its authority to implement the
housing and settlement arrangement, and in doing its efforts
based on the provisions as set out in the Regulation
This Government and the legislation which applies [Article 3 of the paragraph (2)
and paragraph (3)];
b. The nature of Perumnas is to provide services for the
general benefit by acquiring an advantage based on the principles of corporate affairs. [Article 6 of the paragraph (1)];
c. The purpose of the Perumnas was to carry out the arrangement
housing and settlements for the community, and in certain terms
carrying out certain tasks that the Government provides in
the fulfilment of the group communities that are income
low [Article 6 of the paragraph (2)];
d. The purpose of Perumnas is to realize housing and
Iayak and affordable settlements based on the spatial plan
which supports sustainable development of the region.
139
3. Vision, Mission and Value Governance
a. Vision to be the main culprit of the housing and settlement provider in
Indonesia
b. Mission
1) Provides qualified housing and settlements and
is worth the community.
2) Provided customer satisfaction in continuity.
3) Developing and empowering professionalism as well as
improve employee welfare.
4) Provides Housing and Quality Settlements to
the medium to lower medium.
5) Apply efficient and effective company management.
6) Optimizing the synergy with the Government, the BUMN and the Instancy
other.
4. Set the "Spirit for Perumnas" Value
Service Excellen:
prioriting customer interests and satisfaction, acting
proactive, dependents and caring.
Passion:
High spirited, strong desire Achieves a goal, optimist,
enthusiastic.
Integrity:
Prioriting corporate interests, having a high commitment,
moral good, honest and responsible.
Innovative:
Refiguring new breakthroughs, thinking open and creative looking for new idea
.
Focus:
Consistence in carrying out tasks according to priority, meticulously,
consistent and tuntas.
Based on the expertise and experience related to Perum Perumnas ' role
as BUMN moves in the field of housing provision, in particular from
the observation point of view on the locations in the wake, is:
140
1. Since the establishment of Perumnas in 1974, Perumnas has built
housing in more than 300 locations in 157 towns/kabupaten/provinces with
total occupancy of more than 500,000 non-tenable units & more than 11,000 home units
Sewa/belongs to a society that
middle-income below.
2. That Perumnas had developed settlement projects
large-scale Indonesia, which gave the impact
significant/multiplayer impacts the effects of the development
surrounding areas, such as Klender (Jakarta), Karawaci (Tangerang),
Helvetia (Medan), Talang Coconut, Rotating West, Sakokenten (Palembang),
Tamalanrea, Panakukang (Makassar), Antapani, Sarijadi (Bandung), Depok
(Bogor), Copper Marsh, Lumbu Swamp (Bekasi), Banyumanik (Semarang),
Dukuh Menaggal (Surabaya), is an example Large scale settlement
The construction of the Perumnas was established. The settlement area now
has evolved into a prospective "New City" that is developing
rapidly becoming a strategic area that serves as a city buffer
its parent.
3. That was in line with the direction of the Government's policy at the time, before
the publication of the 1/2011 Act on Housing and Settlement Areas,
The Perumnas had built many houses with a large building area
small than 36 m² (type 36), that is, type 27, type 21 even type 18 is called
The Core/Home type type is grown. Categorised home growing up then in
its planning and execution has anticipated its construction construction
to be easy and cheap to be developed into 36 m² Iuas with
sufficient land provision. Even so in its realisation
does not correspond to the planned failure because
the public considers the core/home home to grow uncompleted/yet
is perfect into a home. However, the concept of a core/home home grew more
as developed through a type of home swadaya [Article 21 of the paragraph (1) letter
c Act 1/2011] and not through the common house type [Article 21 paragraph (1) letter b
Act 1/2011]
4. That of the expert observation results from most of the locations that have been
built it in general can be delivered:
141
a. There are (minor) buyers who are due to their needs already
urging Iangsung to inhabit that core (before
developed) with an average family member of more than two,
this kind of condition makes it possible. discomfort in the home
that is.
b. Developed with a cadre building material = > slum.
c. Developed after a few years, the building materials are not the same
with its parent home occurring unloading = > inefficient.
d. Newly rebuilt demolis (dismantled flat) = > inefficient.
e. Not Iangsung inhabited, electric meter, water revoked = > must pay BP
reset, house becomes corrupted (Home is made an investment item).
f. This results in inefficiencies at cost and
ineffective against implementation so that home policy grows/
The core home is not Iayak resumed.
5. Tutiek Yudiarti That Witness his job as a kindergarten employee of Al-Muhajirin, address
JaIan Permata I Number 126 Perum Rawa Roko Mas, Perumnas Rawa Ox-
Eastern Bekasi;
At the time of purchasing the type 21 house in 2007, the number of her family
as many as 4 men made up of husband and 2 boys. With
the earnings of a husband and wife of Rp. 4 million a month. The house was purchased
via a KPR loan on the Bumiputra bank. And the house only
has one bedroom, living room, bathroom and no kitchen,
while the need for room for family is the kitchen, the family room
and the bedroom for both witness children.
In addition to That, the home condition of type 21, feels respect and narrow so that
feels very uncomfortable. Therefore, it is forced to issue
money to add one room and kitchen, and must borrow money
for the addition of the space. If dismantled all costs are very
expensive, so the Witnesses conclude better cicil house with type 36.
That the Witnesses strongly support the Government policy setting the type
the smallest type of house 36 by having 2 bedrooms so as not
need to again think of the cost of room addition. In addition to that house
is healthier and well-organized as it is expected. Witness supports and
142
declares Article 22 paragraph (3) of the Act No. 1 of 2011 on
Housing and Settlement Areas do not contradictory the Act
Basic State of the Republic of Indonesia Year 1945, As
is delivered by the Government, which is intended for the welfare of the community.
6. Umang Gianto
That Witness his job as the Principal Director of PT. Bright Moon
Malang, address Offices in the North JaIan Mondoroko Number
999 Singosari Malang;
That the Witness as a housing developer has built less
More 4,000 (four thousand) Home Prosperous Paths (RST) in the Region
Prosperous Bumi Mondoroko Estate, located in Kelurahan
Banjararum and Village of Watu Gede District Singosari Malang Regency,
East Java Province began in 2007 until the current end
in 2011 to date;
That early 2007 PT. The Primary Light Moon has built the type 27
and type 36 each with a land area of 65 m². Of the thousands of candidates
consumers who came in at the time turned out to be the type 27/65 was not in demand for the
consumers, as consumers preferred the type 36 home building
with 65 m² of land Iuas. Since 2007, the entire RST of the Witnesses
up was decided to type 36 with 65 m² of land Iuas. Witness consideration
at that time type 36 and type 27 the building's financing difference was not very large,
so was the price of the sale. Whereas spaces and rooms are very different,
if type 36 are two bedrooms while type 27 is only one room
sleep;
That other user/consumer takes a lot of 36/65
rather than the 27/65 type because the price difference with the same land area, cost
the realization of the same, the same advance money is just a little different in installments. If
user/consumer buying type 27/65 will issue a renovation fee and
bear home installments;
That evidence on the field of 4,000 (four thousand) home units has been inhabited
by the consumer, which is mostly the para the new young couple
housemates and they are not heirked with the home renovation
as it has been prepared 2 bedrooms. In addition to the child's dicarunae
143
kesatu and their second child do not need to add to the bedroom room.
Let alone the installment still continue to run every month;
That regarding the sale price, the Witness always follows the sale price. which has been
specified the government/Kemenpera. The price of subsidised KPR was determined
the government in 2007 for its type 36-priced house 49 million,
in 2009 the sale price of 55 million, and in 2011 the sale price
house 70 million;
From the price of RST The subsidies that the government has decreed should be Witnesses
follow closely despite the benefits of not being large. Regarding
procurement of land/liberation, Witnesses always communicate and
approach first with land owners. For now
the land price that the Witnesses released is currently 100 thousand per square meter. For
may continue with the missions of the Witness building a residential area
prosperous for the middle-income society down or
low-income society, Witnesses always remind the ranks
menajemen PT company. The Primary Light Month to always innovate
and efficiency. With the innovation and efficiency the Witnesses can build thousands
RST again. In 2012 Witnesses began and were building the Type
36/65 RST in Malang, East Java with a target of 7000 RST units of Type 36/65
with the sale price according to which the Government specified with the Facility
The Housing Liquidity. As a record selling price RST KPR subsidised
in September 2011 to April 2012 it was determined by
Kementrian Housing Rakyat prices were selling 70 million with an advance of 10%
= million, a maximum of credit 63 million. Currently the current realization of the bank
executor Bank of BTN Malang, with a per-month installment
of 585 thousand for 15 years. While the KPR cost is covered
the consumer is set by the Managing Bank of BTN Bank Malang Branch
amounting to 900 thousand. For the house type of mandatory building with land area 36
m².
That the Home of the RST, which the Witness wakes up, is based on the terms and conditions
Kemenpera for the Type 36 house, Witness as a developer
getting help from the Kemenpera is a road infrastructure help
environment, main road, The gorong, the Ipal of Communal, the clean water and the other --
another. Such assistance is helpful as a developer, so
144
may decrease the sale price of the house, and to date the Witnesses still remain
consistently build the RST with the target 2000 units up to the end
in 2012, the target 5000 (five thousand) units would be was built in 2013
up to the end of 2014 in the locations of Madyopuro and
Kelurahan Lesanpuro District of Malang Province's
East Java. With a sale price per-unit 70 million for the year 2012.
That up to this day on April 21, 2012, Marketing Witnesses
has successfully received a prospective customer order with their data
a complete no more 3,000 lacquer/user, meaning this 2012
The witness has exceeded the target of 1,000 consumers while this month is still in
the fourth month of 2012 surely 2013 should be much more
building subsidised Type 36 RST to meet the community expectations
that wants get a Type 36/65 RST Home.
Conclusion:
1. Home type 36 is most habitable and affordable for society
middle income or lower-income society
low, with the type 36 most prepared for prosperous families
with one pair and 2 her son is clearly the home environment of the type
36 becomes unseedy.
2. In the next 10 years they will not be bothered
adding to the bedroom room.
3. With a prosperous house of type 36 people/consumers
get a light interest for 15 years which is a relief
The government with an installment interest is 7.25% per year, with a maximum
credit of 63 million installments of 585 thousand month.
4. With a prosperous home the type 36 path is sure to get help
of the frankincense road paving, for the road INeighborhood, gorong-
gorong, communal ipal that was directly felt by the occupants of the house
RST, so it can be Lower house prices.
5. With a prosperous house of type 36 and a maximum selling price of 70 million
babas of levies cost PPN 10%, it must be very extenuating to the
user/consumer.
6. The PT. The Moon's Bright Moon is still consistent and capable
to build a 36 RST house with a selling price of under 70 million
145
with quality home quality, strategic location as well as having
good economic value in the future for the community
middle-income below.
7. Witness supports and states that Section 22 of the paragraph (3) Invite-
Invite Number 1 Year 2011 on Housing and Regions
The settlement does not contradilate the Constitution of the Republic of the Republic
Indonesia Year 1945, as it is delivered by the Government,
that aims for the welfare of the community.
[2.5] weighed that in the March 22, 2012 trial, the Board
The People 's Representative has given the lisa' s caption, and on May 11
2012 The People's Representative Council delivered a written statement, which in
poate. describes as follows:
1. Legal Position (Legal Standing) The applicant
Qualifying to be fulfilled by the applicant as a party has
set forth in the provisions of Article 51 of the paragraph (1) Act Number 24 of 2003
on the Court Constitution (further abbreviated to the MK Act), which states
that "The Applicant is a party that considers the right and/or authority
its constitutionality is harmed by the enactment of the Act, i.e.:
a. Individual citizen of Indonesia;
b. the unity of the indigenous law society as long as it is still alive and in accordance with
The development of the people and principles of the Republic of the Republic of Indonesia
which is set in undang-Undang;
c. public legal entity or Private; or
d. State institutions. "
The rights and/or constitutional authority referred to the provisions
Article 51 of the paragraph (1) of that, is expressly set forth in its explanation, that "which
referred to" constitutional right " is the rights set forth in the Invite-
The Constitution of the Republic of Indonesia in 1945. " The provisions of the Explanation
Article 51 of the paragraph (1) this affirm, that only the rights explicitly
are set in the Constitution of 1945 alone which includes "constitutional rights".
Therefore, according to the MK Act, in order for a person or a party to be a member of the Constitution.
may be accepted as the applicant who has a legal position (legal
146
standing) in an Act testing against UUD 1945,
then it must first explain and prove it:
a. The qualifiers as the petitioners in the a quo as
are referred to in Article 51 of the paragraph (1) Act No. 24 of 2003
about the Constitutional Court;
b. The rights and/or its constitutional authority as referred to in
"The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by the expiring
Act.
Regarding the constitutional loss parameters, the Constitutional Court
has given the definition and limitations on constitutional losses that
arising out of the enactment of an Act must meet 5 (five) terms
(vide Verdict Case Number 006 /PUU-III/2005 and Perkara Number 011 /PUU-
V/2007) is as follows:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. that the right and/or constitutional authority of the applicant
is considered by the applicant to be harmed by an Act that
is tested;
c. that the rights and/or constitutional authority of the Applicant
is intended to be specific (specifically) and actual or at least potential
that reasonable reasoning can be ascerated 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 request then
the loss and/or constitutional authority postured will not or
no longer occur.
If the five terms are not met by the Applicant in the
testing case a quo, then the petitioners do not have
legal standing (legal standing) as the applicant party.
1. That on the basis of the limits of the constitutional loss of the House is viewable
that it needs to be questioned whether the legal interest of the petitioners already
meets the cumulative requirements of legal standing (legal standing) as
a party that considers the rights and/or its constitutional authority to be harmed.
147
with the enactment of the provisions of Article 22 paragraph (3) Act Number 1
Year 2011 on Housing and Settlement Areas.
2. That in addition to being questioned related to constitutional losses
the specific (specifically) and actual or at least
applicants are potential that according to reasonable reasoning can be guaranteed
occurs, and whether there is a causal relationship (causal verband) between
the loss and the enactment of the Act is being moved to be tested.
3. That according to the House of Representatives the case of Number 12/PUU-X/2012 is not
having a constitutional loss to the enactment of Article 22 of the paragraph (3)
Act No. 1 of 2011 on Housing and Regions
Settlement, because The provisions of Article 22 paragraph (3) of the Act a quo have
in line with Article 28H paragraph (1) of the 1945 Constitution mandates the responsibility
the country's responsibility to protect all of Indonesia through
the host of housing and the residential area for the people
to be able to stay and inhabit the home Iayak and affordability in
in a healthy, safe, harmonious, and sustainable environment all around
the Indonesian territory.
4. That the provisions of the a quo Act of substance at all is not
blocking or banning the petitioners from being able to buy and
obtain a home in accordance with its ability.
5. That against the Perkara Perkara Number 14 /PUU-X/2012 which is
the association of real-estate developers and settlements for
low-income groups (MBR), factually and
are real establishing housing for MBR, with the enactment of
section a quo, the House of Representatives view that the applicant is completely unobstructed-
impeded, or harmed in carrying out its work as
a housing developer and settlements in building a house either type
21, type 36 or any type of berthing.
Based on that description, the PETITIONERS
12 /PUU-X/2012 and the applicant number 14 /PUU-X/2012 do not have
legal standing (legal standing), hence it should be appropriate if the Assembly
Judge The Constitutional Court stated the request of the applicant
No. 12/PUU-X/2012 and the Number 14 /PUU-X/2012 applicant could not be
received (niet ontvankelijk verklaard).
148
However, the DPR will also outline the related caption
with the subject matter of testing a quo, i.e.:
2. Testing of the Perkim Act
Against the application for the testing of Article 22 of the paragraph (3) of the Perkim Act, the DPR
included the following description:
1. In 1945, Article 28H (1) mentions, that every person is entitled to a life
prosperous birth and inner, residence, and get the living in life
that is good and healthy. The residence has a very strategic role
in the formation of the nation as well as the personality of the nation as one of the efforts
to build an Indonesian human being completely, self-identity, independent, and productive
thus it was to be fulfilled. the needs of the residence are the basic needs
for each human, that will continue to exist and evolve according to
the stage or cycle of human life.
2. The state is responsible for protecting all the people of Indonesia through
hosting residential and residential areas for the community
to be able to stay and inhabit a decent and affordable home in the
in the neighborhood. a healthy, safe, harmonious, and sustainable all over
Indonesia region. One basic human needs, ideally the home should
be owned by each family, especially for the income-income society
low and for the people living in densely populated areas of
urban.
3. In reference to the order that the existence of a home would be very decisive
the quality of society and its environment in the future, as well as the principle
The fulfillment of the need for housing is the responsibility
of its own society, then Community placement as a primary offender
with an enablement strategy is a very strategic effort.
So it has to do community empowerment and key perpetrators
others in the holding of housing and settlement with
optimizing the support of supporting resources hosting
housing and settlements.
4. That the House of Representatives argued that the establishment of the Perkim Act
was directed to encourage an enablement effort for the whole
series of housing and settlement processes for the sake of
self-reliance. the public to meet the housing needs
149
which is feasible and affordability as one of the fulfillment efforts
the human base in the framework of true development did, and push
the quality of the neighborhood of the settlement healthy, safe, harmonious and
sustained, both in urban and in rural areas as guaranteed
in 28H verses (1), verse (2) and verse (4) UUD 1945.
5. That the State of the Republic of Indonesia has signed The Rio de Declaration
Janeiro, The United Nations Centre for Human Settlements (UNCHS
Habitat). The spirit and spirit of the Agenda 21 and the Declaration
Habitat II that home is a basic human necessity and be the right
for everyone to occupy a decent and affordable dwelling
(adequate and Affordable shelter for all.) It is mandated by UUD
1945, Article 28H verse (1) which states "Everyone is entitled to live
prosper born and inner, residence, and get the environment
both healthy and healthy and healthy. entitled to health care". Related to
it is in the legal instrument of the Human Rights, it has been set up in
Act Number 39 of 1999 on Human Rights, Article 40
stated that "Everyone is entitled to a residence and
enviable life".
6. Against the presumption of the applicant stating the provisions of Article 22
paragraph (3) of the Act No. 1 of 2011 on Housing Region
The settlement stated, "The single home floor and the house of the series
have At least 36 (thirty-six) square meters. " The provisions
are considered contrary to the provisions of Article 28H paragraph (1),
Article 28H paragraph (4), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution.
The House argued that the creation of the Perkim Act aims to
guarantee every citizen ' s right to occupy, enjoy, and/or
have a decent home in a healthy, safe, sericable environment, and
regularly as mandated in Article 28H paragraph (1) of the 1945 Constitution.
8. Consideration of the arrangement on the area of the home floor of the residence and home of the derat
in Indonesia refers to:
(1) Article 25 of the paragraph (1) Universal Declaration of Human Rights (Charter of the Rights of the Azation
Man), which states that, "Everyone is entitled to a live level
adequate for the health and well-being of her and her family,
including the rights to food, clothing, housing and health care
150
as well as the necessary social services, and entitled to warranty at the time
idle, suffering pain, defect, be janda/duda, reaching age
further or other circumstances. "
(2) World Health Organization Convention (WHO) in 1989 about Health
Principles of Housing stating one the home principle that
healthy among others is protection against contagious disease,
intoxication and chronic diseases. To meet this is based on
research issued by Alberta-Health and Wellness from the UK
in 1999 about Standard Minimum House, regarding the area
floor for the bedroom at home healthy is not to be less
of 9.5 m².
(3) Article 11 of the International Covenant on Economic, Social,
and Cultural Rights, which have been ratified with the 11/2005 Act on
The Unrest of the International Covenant on Economic. Social, and Cultural
Rights, which states the State of the Party in this Covenant recognizes the right
of each person over adequate standards of living, including food, sandang,
and housing and for improvement of living conditions continue And
emphasizes the state of the party will take the Iangkah-al that
is adequate to guarantee the embodiment of this right (vide Article 2 of the paragraph (1)
ICESCR).
(4) General Comment Number 4 International Covenant on the Rights
Economic, Social and Cultural Rights concerning Right to Adequate Housing that
issued on December 13, 1991 by the Committee on Economic,
Social and Cultural Rights, at number 7 states that the
home is worth the viability of the space area, security,
lighting/lighting, ventilation, infrastructure and affordability
between home and place of work as well as all basic facilities can
be filled with affordable cost.
(5) According to the Guidelines for Healthy Housing World Health Organization
Copenhagen 1988, the minimum floor Iuas 56.5 m² with 2 rooms for
the number of members of a 4-person family. The minimum motion room standard
is 51 m² with 2 rooms for families with 4 people
family members.
151
9. Based on the above description, according to the House of Representatives setting the floor area
single home and home series has at least 36 (thirty
six) square meters, solely in favor of improving the entire quality of life
citizens country and to guarantee the right of every citizen to occupy,
enjoy, and/or have a decent home in a healthy environment,
safe, serasi, and orderly. And according to the House of Representatives a measure of the size of 36 meters
square is the policy choice of the Act that has been
based on the standard of life that is worthy of the embodiment of the mandate
Article 28H verse (1) and verse (4) of the 1945 Constitution, by non-contradictory
with the constitution.
So the House statement is delivered to be material
consideration for the Assembly of Justice Constitutional Court to examine,
disconnect, and prosecute the case a quo and can provide a ruling as
following:
1. Proclaiming the applicant has no legal position (legal standing)
so that it should not be acceptable to the applicant
(niet ontvankel jk verklaard);
2. Declaring the 2011 No. 1 Act of testing
on Housing and Settlement Areas, the applicant is rejected for
in whole or at least one is not accepted;
3. Stating Section 22 paragraph (3) of the Perkim Act does not conflict
with Article 27 of the paragraph (1), Article 28D paragraph (1), Article 28H of paragraph (1), paragraph (2) and
paragraph (4) of the 1945 Constitution;
4. Stating Article 27 paragraph (1), Article 28D paragraph (1), Article 28H paragraph (1), paragraph (2)
and paragraph (4) of the Constitution of 1945 shall have a legal force.
[2.6] Draws that the applicant and the Government have delivered
a written conclusion that accepted in the respective Court of Justice respectively on
on May 2, 2012 which on the party remains with its stance;
[2.7] Draw that to shorten the description in this ruling,
everything that happens in the trial was quite appointed in the news of the event
the trial, which is one unity that inseparable with
this verdict.
152
3. LEGAL CONSIDERATIONS
[3.1] weighed that the intent and purpose of the applicant's plea
is to test the constitutionality of Article 22 of the paragraph No. 1
in 2011 on Housing and the Settlement Area (Sheet) Country
Republic of Indonesia Year 2011 Number 7, Additional Gazette Republic of State
Indonesia Number 5188, next called Act 1/2011) against Article 27 paragraph
(1), Article 28D paragraph (1), Article 28H paragraph (1), and Article 28H paragraph (4) Invite-
Invite Basic State of the Republic of Indonesia in 1945 (later called UUD
1945);
[3.2] A draw that before considering the subject's subject,
The Constitutional Court (later called the Court) would be first to
consider:
a. The Court's authority to prosecute a quo; and
b. (legal standing) 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) letter a Law Number 24 of 2003 on the Court
The Constitution as amended by Act Number 8 of the Year
2011 on Changes to the Law Number 24 Year 2003 concerning
Court Constitution (State Of The Republic Of Indonesia Year 2011 Number
70, Additional Sheet Of Country Republic of Indonesia Number 5226, next
called Act MK), and Article 29 paragraph (1) letter of Law No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
Year 2009 Number 157, Extra Sheet The Republic of Indonesia Number
5076), one of the Constitutional Court's constitutional authority is to prosecute in
the first and last level of which the verdict is final to test the Invite-
Invite against the Basic Law;
[3.4] Menting, that due to be moted testing by
The applicant is of Article 22 paragraph (3) of the Act 1/2011 against Article 27 of the paragraph (1), Section
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28D paragraph (1), Article 28H paragraph (1), and Article 28H paragraph (4) of the Constitution of 1945, then
The court of law for prosecuting a quo;
Occupation of Law (Legal Standing)
[3.5] weighed that under Article 51 of the paragraph (1) MK Act, which could
apply for testing the Act against UUD 1945 is
those who consider the rights and/or its constitutional authority
granted by UUD 1945 was harmed by the enactment of an Act, namely:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the required Act
testing;
[3.6] The Court has since the Constitutional Court's termination.
Number 006 /PUU-III/2005, dated 31 May 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-
subsequent ruling, the establishment that loss of rights and/or authority
constitutionally referred to Article 51 of the Article 51 paragraph (1) the MK bill must meet
five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the test-mover of testing;
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c. The constitutional losses must be specific (special) and actual or
at least any potential that the reasonable reasoning can be assured
will occur;
d. (causal verband) link between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that with the application of the request, then
constitutional losses such as the postulate will not or no longer occur;
[3.7] In the draw that the applicant is the Board of the Centre of Association
The entire Indonesia Housing and Settlement Developers (DPP APERSI)
that is factually a housing developer and
settlement for low-income groups (MBR) that
its organization used as a means for aspiration of aspiration and championed
the interests of the Medium and small developers in order to receive attention
proportional to the Government, postulate aggrieved
Article 22 paragraph (3) Act 1/2011, because for a society unable to buy
home single or home-wide series house minimum of 36 square meters,
will not buy a house built by the applicant that resulted in the applicant
aggrieved for not being able to build an extensive home floor less than
36 square meter, when many require a home but its stripes
not until To the floor is 36 square meters. Thus
The applicant has a legal standing (legal standing) to submit
a request a quo;
[3.8] It is tied that by the court of competent judgment
a request a quo and the applicant have a legal standing (legal standing),
next the Court will consider the subject matter;
The opinion of the Court
subject to
[3.9] weighed in that the applicant submitted a material test Section 22
paragraph (3) of the Act 1/2011 that states, " Single home floor and series house
has at least 36 (thirty-six) square meters ", which according to
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The applicant is contrary to Article 27 of the paragraph (1), Article 28D paragraph (1), Article 28H
paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution which states:
1. Article 27 paragraph (1) of the Constitution of 1945: "All citizens simultaneously in law and
governments and shall uphold the law and government with no
there is no exception".
2. Article 28D paragraph (1) of the Constitution of 1945: "Everyone is entitled to the recognition, guarantee, protection, and certainty
fair law and equal treatment before the law".
3. Article 28H paragraph (1) of the Constitution of 1945: "Everyone is entitled to a prosperous life born and inner, residence, and
get a good and healthy life environment and be entitled
health care".
4. Article 28H paragraph (4) of the 1945 Constitution: "Everyone has the right to have a personal property and that property is not
may be taken arbitrarily by anyone".
[3.10] A draw that after the Court checked with the sacsame
the applicant 's plea, listening to the oral and reading caption
The Government' s written caption, listened to the oral and read caption
A written description of the People's Representative Council, listening to the witness description
and the Expert of the applicant and the Government, and checking the evidence/writing
which was submitted by the applicant and the Government, as contained in the section sat Perkara, the Court argued as follows:
[3.10.1] That According to the Court of Article 22 paragraph (3) Act 1/2011 not
contrary to Article 27 of the paragraph (1) of the 1945 Constitution, due to such provision
does not discriminate against the citizens of the law and government,
so did not. Discriminate against the obligations of the citizens to uphold
laws and governance. According to the law,
[3.10.2] That likewise according to the Court of Article 22 paragraph (3) Act 1/2011
does not conflict with Article 28D of the paragraph (1) of the 1945 Constitution, because of this section
156
does not negate the recognition, guarantee, protection, and legal certainty that
fair and equal treatment before the law, so that the application
The applicant is unwarranted according to the law;
[3.10.3] That prosperous life is born and inner, residence, and
getting a good and healthy life environment is a human right
and a constitutional right for any Indonesian citizen [vide Article 28H verse
(1) UUD 1945]. One of the goals in the form of the country is to protect
the entire nation of Indonesia [vide alinea IV Opening of the 1945 Constitution]. Related to
citizens ' rights and in relation to one of the goals in
the establishment of the country is in question then the country is obligated to perform
efforts in order to realize the rights of the citizens That's right.
The housing and residential area is one
aspect of national development, human development completely, as wrong
one attempt to realize its constitutional rights, which also
is the fulfillment of a human basic needs that has a strategic role
in the formation of citizens and personality of the citizens as an attempt
achieving one of the goals of the self-established Indonesian development,
independent, and productive. As one of the efforts of fulfilling constitutional rights,
the hosting of residential and residential areas is reasonable and even
is a must, when the hosting is meant to meet
the specific terms, among other terms of health and eligibility and
reach by the purchasing power of the public, especially those that
low income [vide of the considerance (Draw) the letters a up to
the letter d as well as the General Description Act 1/2011]. Related to the terms of range
by the purchasing power of society, especially low-income communities,
according to the Court, Article 22 of the paragraph (3) Act 1/2011, which contains the norm
extensive restrictions on the single home floor and house of the series at least 36
(thirty-six) meters square, is an arrangement that does not correspond to
consideration of the reach by the purchasing power of a portion of society, especially
the low-income society. The legal implications of that provision
means banning residential and residential areas
building a single house or series house whose floor size is less than
size 36 (thirty-six) square meters. This means that it has closed
opportunities for communities whose power is less or incapable of
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purchasing a home corresponds to the minimum size. After all, purchasing power
low-income societies, between one area with other
regions, are not the same. Similarly, land prices and construction costs
houses in an area with different regions. Therefore,
re-gravely the size of the floor nationally is not appropriate. In addition, the right
for a prosperous birth and inner life, residence, getting the environment
a good and healthy life as well as the right to health care
as being considered above is one of the rights human
imprisonment is not solely determined by the size of the home floor size or
residence, but it is determined anyway by many factors, especially the factors
the measure of the bounty given by God Yang Maha esa;
[3.10.4] weighing that in line with consideration in paragraph
[3.10.3], right of residence, private property [vide Article 28H verse (4) UUD 1945] is also one of human rights. A residence, for example,
home, can be a rental house, can also be a private property.
If the sustenance provided by God Almighty is enough
to build/have a large house of its floor less than 36 meters
square, an Act-forming can't force it to build for the sake of
has an extensive home floor of at least 36 square meters, for sustenance
in question is enough to build a house that is less than
that size;
[3.11] It weighed that based on The consideration of paragraph [3.10.3]
up to paragraph [3.10.4] above, according to the Court of invocation of the applicant according to the law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court of law for prosecuting a quo;
[4.2] The applicant has a legal position (legal standing) to submit
requests a quo;
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[4.3] Request for Warranted Applicants;
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on the Constitutional Court
as amended by Law No. 8 of the Year 2011 on
Changes to the Law Number 24 of 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia 2011 Number 70,
Additional State Sheet of the Republic of Indonesia No. 5226), as well as the Invite-
Invite Number 48 Years 2009 On The Power Of Justice (sheet Of State
Republic Of Indonesia 2009 Number 157, Additional Sheet Of State
Republic Indonesia Number 5076).
5. AMAR VERDICT
PROSECUTING,
STATES:
1. Grant the applicant request for the whole;
1.1 Section 22 paragraph (3) of the Act No. 1 of 2011 on
Housing and Settlement Areas (Republic of State Gazette
Indonesia of 2011 Number 7, Additional Sheet of State Republic
Indonesia Number 5188) in conflict with the Basic Law
Republic of Indonesia State of 1945;
1.2 Section 22 paragraph (3) Act No. 1 of 2011 on
Housing and Settlement Areas (Sheet) Nation Of Republic
Indonesia Year 2011 Number 7, Additional Gazette Republic Of State
Indonesia Number 5188) does not have a binding legal force;
2. Ordering the loading of this ruling in the Republic of Indonesia News
as it should be;
It was decided at a Consultative Meeting which
attended by the nine Judges of the Constitution, namely Moh. Mahfud MD, as Chairman
arrested Member, Achmad Sodiki, Muhammad Alim, Maria Farida Indrati,
Hamdan Zoelva, Harjono, Anwar Usman, Ahmad Fadlil Sumadi, and M. Akil
159
Mochtar, respectively as Member, at on Tuesday, the twenty-fifth date, September, the year two thousand twelve, and said in the plenary session of the Constitutional Court was open to the public on on Wednesday, the third, the month of October, the year two thousand twelve, by the nine Judges of the Constitution, namely Moh. Mahfud MD, as the Chief of the Members, Achmad Sodiki, Muhammad
Alim, Maria Farida Indrati, Hamdan Zoelva, Harjono, Anwar Usman, Ahmad Fadlil
Sumadi, and M. Akil Mochtar, respectively as Members, with
accompanied by Saiful Anwar as the Penitera Panitera, attended by the applicant
and/or its ruler, the House of Representatives or the representing, and
the Government or the one representing. Against this Court's ruling, Judge
The Constitution of Hamdan Zoelva has a different opinion (dissenting opinion);
CHAIRMAN
ttd.
Moh. Mahfud MD
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
Hamdan Zoelva
ttd.
Harjono
ttd.
Anwar Usman
ttd.
Ahmad Fadlil Sumadi
ttd.
M. Akil Mochtar
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6. DIFFERENT OPINIONS (DISSENTING OPINION)
Against this Court ruling, Constitutional Court Judge Hamdan Zoelva has
different opinions (dissenting opinion), as follows:
The 1945 Constitution asserts that everyone is entitled to life Prosperous birth
and inner, residence and get a good living environment and
healthy [vide Article 28H paragraph (1) UUD 1945]. As well as the Universal Declaration of Human Right, the Universal Declaration of Human Right asserts that any person
deserves an adequate level of life for health and well-being.
He and his family, including rights. over food, clothing, housing and
health care as well as necessary social services [vide Article 25 paragraph
(1)]. Of the constitutional guarantee, residence rights and rights
get the living environment a good and healthy is part of the right to
adequate life, prosper A born and an inseparable inner. The DPA
1945 as well as the Charter of Human Rights strongly emphasizes how important it is
The fulfillment of both rights runs in a balanced way. The right to housing
and a good and healthy living environment are including rights groups
economic, social, and cultural whose imprisonment requires engagement and
the active intervention of the state, not the freedom of the citizens. That is, fulfilment
His right must be guaranteed with various state-active policies. Different things
with civil and political rights that require passive involvement from the state.
It means that the freedom of state citizens takes precede guaranteed by the state.
One aspect of the good and healthy environment is concerning home
or a place to stay. Healthy home standards according to the World Health
Organization in 1989 about the Health Principles of Housing, among other things
protection against infectious diseases, poisonations, and chronic diseases. For
meeting it based on research issued by Alberta-Health
and Wellness in 1999 about the minimum standard of healthy homes is widespread
the floor for the bedroom on a healthy home is no can be less than 9.5
square meters per person. WHO Regional Europe determines a minimum standard of 12
square meters per person. United Kingdom defines a broad minimum standard
home floor of 29.7 square meters per person. Russia determines the minimum standard of 9
square meters per person. This standard, is a minimal standard for which
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to determine the viability of a healthy and healthy hunian. That is, home
which is less than a minimum standard is the house is not habitable, because it is not
healthy. The disregard for the minimum standard of healthy homes is one
form of violation of constitutional guarantees for each person to
get a decent and healthy residence. In this framework,
I think the minimum size of a single house and a designated series house
in Act Number 1 of 2011, which is a minimum of 36 square meters
is appropriate. Especially in the tradition of Indonesian family life, it is rare
once a single family living in a single house consists of only 2 persons,
so that the size of a minimum area of 21 square meters is not habitable
because Not healthy. In order to protect and fulfill economic rights and
the social of its citizens, the state cannot allow freedom to build
unhealthy homes under a prescribed minimum standard, let alone a home
that is The housing is built with a state facility. That is where
the responsibility of the state and its constitutional obligations guarantee fulfillment
the constitutional right of its citizens to reside in a viable environment
and healthy. With a minimum area defined by law a quo,
also contains the consquence that the state guarantees the ease and
the reach for the Low-Income Society (MBR) for
earning a home, with subsidies, facilities and ease
get home.
Therefore, I think, if associated with the outreach problem
the public purchasing power and the broad size are two things that are not always relevant.
The most staple thing is the size of affordable home prices is not the measure
A small house. That is, with the warranty of a minimum floor area of the floor
single house and house of a minimum series of 36 square meters, containing meaning
also that the state is obligated to provide an ease to the community
low income for get home with a variety of facilities and
ease. The size of the reach is very relative, because of how small it is
home that is considered affordable can also not guarantee that the whole or
majority of the Indonesian people can have a home, because there is a difference
level Community revenue. It is very dependent on the price level
home, not in the large small house, although an influential area of the
price. So in my opinion, the most important thing that the government should guarantee
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is the health and feasibility aspect of a healthy living place for humans
Indonesia is growing both healthy and healthy. Affordable but unhealthy home, is
the form of state neglect against each person ' s constitutional right to
get a good, healthy abode. Holding home that
affordable but not healthy, just let the people live unreasonably
worthy and unwell.
PANITERA REPLACEMENT,
ttd.
Saiful Anwar