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Test The Material Constitutional Court No. 14/puu-X/2012 Year 2012

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 14/PUU-X/2012 Tahun 2012

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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 term

filial 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 others

mentions 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:

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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.

112

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

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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

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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

162

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