Key Benefits:
VERDICT Number 78 /PUU-X/2012
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and last,
dropping the ruling in case of Test Number 8 Year
1981 on Criminal Event Law and Act No. 48 of 2009
on the Power of Justice against the Constitution of the Republic of State
Indonesia Year 1945, submitted by:
[1.2] Name: Muhamad Zainal Arifin S.H.
Place/Date Born: Surabaya, February 28, 1983
Work: Advocacy
Citizen: Indonesia
Address: New Wedi Tambak Road XV-A/21
Surabaya
In this case select the legal domicile in the Wanafilial Manggala Building
Block IV Room 910 B, Gatot Subroto Road, Central Jakarta 10270;
Next is referred to as -------------------------------------------------------------------- applicant;
[1.3] Read the applicant's request;
Hearing the applicant's description;
Checking the applicant's evidence;
2. SITTING MATTERS
[2.1] In a draw that the applicant has submitted an application
dated July 23, 2012 which is accepted in the Constitutional Court of Justice
(subsequently called the Court of Justice) on 23 July 2012
on the basis of the Receipt Receipt of the Number 286 /PAN.MK/ 2012
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and is recorded in the Book Registration Book with No. 78 /PUU-
X/2012 on August 1, 2012, which has been corrected and received at
The Court of Justice on 10 September 2012, which parse
things as follows:
I. Constitution of the Constitutional Court
1. That is to refer to the provisions of Article 24C paragraph (1) of the Constitution of 1945, one
authority of the Constitutional Court (subsequently called "MK") is to test the Act against the Constitution of 1945:
Article 24C paragraph (1) of the 1945 Constitution among others stated:
"The Constitutional Court is authorized to prosecute at the first level and
The final verdict is final to test the Act
against the Basic Act, ..."
2. That further under Article 10 of the paragraph (1) of the letter of the Act
Number 24 of 2003 on the Constitutional Court as it has been
amended with the Act No. 8 of the Year 2011 on Changes
Over the Number Act 24 Years 2003 on the Court
Constitution (Next is called "MK Act") juncto Article 29 paragraph (1) letter a Act 48/2009, MK authorities prosecute at first level and
the last of its verdict is final to test legislation
against UUD 1945;
3. That being the object of testing application is Article 195
KUHAP, Article 13 of the paragraph (2) Act 48/2009, Article 197 paragraph (2) KUHAP, and
Article 199 (2) KUHAP.
Article 195 of the KUHAP:
"All court rulings are valid and have legal powers
if spoken at an open trial for the public".
Article 13 of the paragraph (2) Act 48/2009:
" The termination of the court is only valid and has legal power if
is said in open session to the public ".
Article 197 paragraph (2) KUHAP
" Not in compliance with provisions in paragraph (1) letter a, b, c, d, e, f, h, h, h, k
and I section resulted in a verdict of null and void ".
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The explanation of Section 197 of the paragraph (2) KUHAP
" Except those in the letters a, e, f and h, in the case of the peculiaryness
and or the error in writing, then the peculiarness and or error
writing or editing does not cause the limit of the verdict in favor of
the law. "
Article 199 paragraph (2) KUHAP:
"Terms as referred to in Section 197 paragraph (2) and paragraph (3)
apply also to this section".
4. That the test stone of the tests of the Act in the case of a quo
is the following chapters in the 1945 Constitution as follows:
Article 1 of the paragraph (3):
"The State of Indonesia is the legal state."
Article 28D paragraph (1):
"Everyone is entitled to the recognition, guarantee, protection, and
fair legal certainty as well as the same treatment before
the law."
Article 28F:
" Everyone has the right to communicate and acquire information
to develop its social and social environment, as well as the right
to seek, acquire, possess, save, Processing, and
relay the information by using any kind of channel
available. "
5. That the test stone testing of Article 195 of the Criminal Code and Article 13 of the paragraph (2) of the Act
48/2009 is the provisions of Article 28D of the paragraph (1) and Article 28F of the Constitution of 1945.
Whereas the test stone testing of Article 197 paragraph (2) of KUHAP and Article 199
(2) KUHAP is the provisions of Article 1 of paragraph (3) and Article 28D paragraph (1) of the Constitution
1945;
6. That due to the request of the applicant is to test Article 195 of the Criminal Code,
Article 13 of the paragraph (2) Act 48/2009, Article 197 of the paragraph (2) KUHAP, and Article 199
(2) KUHAP against UUD 1945, which is one of the authority
MK, then MK is authorized to check, prosecute, and disconnect
this request.
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II. Legal Position (Legal Standing) Petitioner
1. That Section 51 of the paragraph (1) of the MK Act governs that: " The applicant is
the party assuming its rights and/or its constitutional authority
is harmed by the law, i.e.:
a. Individual citizen of Indonesia;
b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the State of Unity
The Republic of Indonesia that is set in undang-Undang;
c. public law enforcement or Private; or
d. State agencies.
Next explanation Article 51 of the paragraph (1) states:
Which is referred to "constitutional right" is the rights set
in the Constitution of the Republic of Indonesia in 1945.
2. That under Article 51 of the paragraph (1) of the letter of an Act of MK, individual citizens
the country of Indonesia may apply for testing of the Invite-
invite to the Constitution of 1945. In this case, the applicant is a person
A citizen of Indonesia as evidenced by the identity of the applicant whose rights
its constitutionality has been harmed by the enactment of Article 195 of the Criminal Code,
Article 13 of the paragraph (2) Act 48/2009, Section 197 of the paragraph (2) KUHAP, and Article 199
(2) KUHAP;
3. That refers to the Termination MK since the Decree Number 006 /PUU-III/
2005 dated 31 May 2005 and Putermination Number 11 /PUU-V/2007 dated 20
September 2007, establishing that loss of rights and/or authority
is constitutional as referred to in Section 51 of the paragraph (1) of the MK Act
must meet 5 (five) terms, that is:
a. the rights and/or constitutional authority of the applicant
provided by UUD 1945;
b. the rights and/or the constitutional authority by the applicant
are considered harmed by the enactment of the Act
on the test of testing;
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c. The constitutional loss must be specific (special) and
actual or at least a potential that according to the reasoning that
reasonable is certain to occur;
d. the presence of causal relationships (causal verband) between the loss
referred and the enactment of the Act to be moveed
testing;
e. It is possible that with the request of a request,
then the constitutional loss as the postured will not or
no longer occurs;
4. That aside, in the practice of testing the Act
as in the Ruling MK number 27 /PUU-VII/2009, the MK verdict
number 5/PUU-IX/2011, MK verdict Number 49 /PUU-IX/2011, and Termination
MK Number 81 /PUU-IX/2011, MK applies legal standing
a taxpayer in the testing of the Act is
The taxpayer of various associations and NGO/NGOs concern
against an Act for the sake of public interest, the legal entity,
Local governments, state agencies, and others. Even in
MK Decree Number 27 /PUU-VII/2009, MK received legal standing
an advocate in testing the Supreme Court Act,
since an advocate in his profession will be much related
with The Supreme Court is therefore directly requiring
legal certainty over everything related to the institution
Supreme Court (See Constitutional Law of the MK Number
27 /PUU-VII/2009 pages 68-69);
5. That as a citizen of the taxpayer, an advocate and actively encourages the embodiment of the values of the state of the law in
a nation-state and country life, the applicant has an interest
the constitutional law of the law. the legal norms governing the branches
the judicial powers set in Section 195 of the Criminal Code, Section 13
paragraph (2) Act 48/2009, Section 197 of the paragraph (2) KUHAP, and Article 199 (2)
KUHAP has a legal certainty value;
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Legal Standing Testing Section 195 KUHAP and Section 13 paragraph (2) Act 48/2009
6. That for testing of Article 195 of the Criminal Code and Article 13 of the paragraph (2) Act
48/2009 special phrases " spoken at open court for the public ", during
this developed interpretation among judges that the phrase" pronounced in
open trial for the public " is that in the reading of the verdict
there must be an irah-irah. or statement of verdict read in
open trial for the public, regardless of whether in
ruling reading, the general public knows the reading schedule
the verdict so that it can attend the reading of the verdict;
7. That in the presence of understanding the meaning of the phrase " is pronounced in
open trial for the public " where it is defined in the ruling to
there is an irah-irah read in an open hearing for the public,
then it causes the public difficulty to access the reading.
The ruling in particular Severance of Appeal, Cassation and Review,
because in practice during this time the Court Judge only prioritise
the formalistic side read the verdict by simply mentioning " the trial
open for general " without caring for schedule openness
reading Verdict. In each ruling there is always an irah-irah
"is pronounced at open trial for the public", but in real the verdict
it was read in a closed hearing which was only attended by Judges
and Panitera, because The public does not know the reading schedule
verdict. How can the general public be able to attend
the reading of the verdict, if the court in particular is in the appeal level,
the cassation and review never gave the announcement
openly subject the reading schedule verdict;
8. That as a citizen, the applicant has a protected right
by Article 28F of the 1945 Constitution to obtain information with
using any type of channel available, one of which is right to
to know the verdict actual by attending the reading
verdict. During this reading of the ruling ruling, the cassation and review
re-always be done in a closed way because the Court Judge
enunciates the phrase "pronounced at open court for the public" as
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is set in Section 195 of the KUHAP and Article 13 of the paragraph (2) Act 48/2009 only
gives the obligation to deliver the irah-irah "pronounced in the hearing
open to the public";
9. That aside, the applicant whose job as an Advocate will
is always in contact with the Severance Appeal, Cassation and Review
Back in the criminal and civil case, want to be present in the hearing
the reading of the ruling To find out more and more information about your company, you will be able to access the Cloud Service. However, the Judge or
Panitera The Replacement never notified the reading schedule
the verdict. Therefore, the applicant has a legal interest to
questioning the intent of the phrase "pronounced in open session for
general" set in Section 195 of the Criminal Code and Section 13 of the paragraph (2) Act
48/2009, is it only provide an irah-irah obligation to be said at
open trial for public or there must be an announcement obligation
schedule a verdict to the general public so that the party wants
know the actual contents of the court ruling can attend the
reading of the verdict;
Legal Standing Testing Article 197 verse (2) and Article 199 paragraph (2) KUHAP
10. That for the testing of Article 197 paragraph (2) and Article 199 paragraph (2) KUHAP,
as an advocate, the applicant ' s work is always in touch
with various ruling idations void by law
as set Article 197 paragraph (2) of the KUHAP and the ruling is not
the disservice is null and void. the law as set out in Section 199
paragraph (2) KUHAP. Therefore, if the verdict is null and void
which overcomes the applicant's client, then the applicant is confused and confused
to explain what the meaning and legal effort against the verdict is void
for the sake of the law;
11. That specific to the testing of Section 199 paragraph (2) juncto Section 197 paragraph
(2) KUHAP concerning the ruling is not a null and void idation,
caused the applicant to get the meaning of the verdict null and void
the law, as the basis submitted a Prajudicial legal effort against
A Investigative Stop Warrant (SP3) of the Sisminbakum Case
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will be submitted to the South Jakarta District Court. As a tax payer,
The applicant has a legal standing to file a pretrial
against the SP3 corruption cases because of the taxes that have been
paid the applicant used to cover financial losses
A state of criminal corruption. The interpretation of the verdict is null and void.
It has a strategic value for the applicant to strengthen the control-
The applicant ' s control in submitting the pretrial law effort;
12. That according to the applicant, the publishing of SP3 Case Sisminbakum
is not based on the Supreme Court Decree No. 591
K/Pid.Sus/ 2010 dated 21 December 2010 an. Defendant Prof. Dr. Romli
Atmasasmita, S.H., LLM. and Supreme Court Decree No.
102 /PK/Pidsus/2011 a.n. Criminal John Waworuntu which was made
The rundown of the SP3 is not a ruling that
is null for the sake of law as set out in Section 199 paragraph (2) juncto
Article 197 paragraph (2) KUHAP;
13. That in the KUHAP, there is no explanation of the ruling null and void
the law, so that the meaning of the ruling phrase is null and void to be
is uncertain;
14. That if the applicant does not ask for an interpretation of the null verdict
for the sake of the law contained in Article 199 paragraph (2) juncto Article 197
paragraph (2) KUHAP, then there is a high probability of prejudicial legal efforts
against the SP3 Sisminbakum will be rejected by a State Court Judge
because there is no official interpretation of the meaning of the ruling null and void;
15. That to equate the perception of the meaning of the ruling instead of
the forlorescence of the law as set out in Article 199
paragraph (2) and Article 197 of the paragraph (2) KUHAP, then need to do a material test
against such provisions so that there is a legal certainty;
16. That based on the qualifications and conditions above, then
The applicant as a citizen of Indonesia, has truly been harmed
the constitutional right of his. As such, the legal standing (legal
standing) the applicant has appropriate and complies with the applicable provisions.
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III. Testing purposes of Section 195 of the Criminal Code, Section 13 of the paragraph (2) Act 48/2009, Section 197 paragraph (2) of the Criminal Code (2) KUHAP and Article 199 paragraph (2) KUHAP
A. The Improvement Of Article 195 Of The Criminal Code And Article 13 Of The Article 13 (2) Of The Special 48/2009 Law "Spoke At The Open Session For The Public" Which Is Understood That In The Reading Of The Ruling There Must Be An Irah-irah "pronounced In An Open Trial For The Public" Without A Obligation To Provide The Announcement Of The Schedule Reading Of The Ruling To The Public, Resulting In Public Access To Attend Reading Of The Verdict Was Hampered, As There Was No Openness To The Schedule Reading Of The Ruling
1. That Article 195 of the KUHAP states "All court rulings
only be valid and have legal power if spoken at
open trial for the public" and Section 13 of the paragraph (2) Act 48/2009 which
states " The verdict the court is only valid and has
the power of the law if spoken in an open hearing for
general " but almost all of the Appeals, Cassation and
Retrial is read in open trial for Your general public. because the trial was attended only by Judge and Panitera. The general public cannot attend the verdict
it is, because the Court is not open in giving a timetable
the verdict to the community;
2. That this time developed an interpretation among the judges that
the phrase "is pronounced at open court for the public" defined in
the reading of the verdict must be an irah-irah or a statement
the verdict was read in the hearing. open to the public, without
care about whether in public verdict reading
the general knows the schedule reading schedule so it can
attend the reading of the verdict;
3. That in Section 195 of the Criminal Code and Article 13 of the paragraph (2) of the Act 48/2009
should require that all court rulings
well that first level, appeal, cassation and review
must be spoken in the public open session where it was announced
openly to the general public subject to the reading schedule
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the verdict. The publicly held trial for
is a traditional form of transparency in the environment
the judiciary. This open-court principle has become wrong
one of the principal principles in the judicial system in the world. From another
perspective, this openness is a key to the birth of accountability. Judge
and court employees will be more overridden and
be careful in the run of her duties, as the public can
access her work results. In the context of the court ruling,
this principle of openness will drive the birth of a ruling that
quality and reflects the sense of justice;
4. That as a citizen, the applicant has a right that
is protected by Article 28F of the Constitution of 1945 to obtain the information
The actual
is not limited to the reading of the court ruling, but
during this reading of the verdict of the appeal, kasation and review
return is always done in a closed way;
5. That the court ruling was the judge ' s statement as
the state official said in the trial and aimed
to terminate or resolve the dispute among the
parties. All court rulings must contain a reason-
the reason for the ruling that is the basis for prosecuting that
contains legal justice, moral justice and social justice. Argument
as judge accountability for his verdict
to the Almighty God, the seeker of justice, society,
the higher courts, and the science of law. Because the verdict
contains accountability then the ruling reading event
must be done in an open hearing to the public;
6. That in the judicial practice of this time, the general public that
has no access to the heat, just found out
the verdict was not immediately that when the verdict was read because
caused by bureaucracy It's so hot in court. There is a pause
a long time between the reading of the ruling and the delivery
the verdict to the parties raises the legal uncertainty
because they should be aware of the disconnect since the termination
it is read, to take legal steps that
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best for himself. The delay in time has led to a pending "justice
", specifically for the defendant or the convict who
is broken free or loose. Therefore, that the phrase "" is pronounced in
open trial for the public " set in Section 195 of the Criminal Code
and Article 13 of the paragraph (2) Act 48/2009 in accordance with Article 28D paragraph (1)
and Article 28F UUD 1945, then it must be defined. " Before
recitation of the verdict in the open trial for the public,
the court is obligated to publicly notify
to the general public and the parties concerned
A verdict schedule for the general public who wants
knowing actual court rulings may attend
recitation of the verdict ".
B. The verdict is not a Null And Void (2) juncto (2) juncto Section 197 paragraph (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code, the Wronged Party, and the Wronged Party, the People of the Party who are wronged.
1. That Article 199 of the KUHAP states:
(1) The ruling letter is not an idleone loading:
a. the provisions as defined in Section 197 of the paragraph
(1) except the letter e, f and h;
b. the statement that the defendant is free-free or off
any lawsuit, by mentioning the reason and
laws of the laws that are the basis
verdict;
c. command to be the defendant is immediately released if he
is detained.
(2) The provisions as referred to in Article 197 paragraph (2)
and paragraph (3) apply also to this section.
2. That the provisions of Article 199 of the KUHAP have a link to
Article 197 of the KUHAP that states:
(1) The order of the idleanings contains:
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a. The head of the verdict reads: "FOR JUSTICE
BASED ON THE ALMIGHTY GOD";
b. complete name, place of birth, age or date of birth, type
gender, nationality, place of residence, religion and work
defendant;
c. indictments, as contained in the indictment letter;
d. Summaratically compiled consideration of the facts
and the state and the proving tool were obtained from
checks at the trial that are the basis of determination
The defendant error;
e. criminal charges, as contained in the letter
charges;
f. section of the laws that are the basis
idanings or actions and regulations of the invite-
invitation that became the legal basis of the ruling, accompanied
the circumstances of the incriminating and the easing
defendant;
g. day and the date of the assembly of the judges ' assembly
unless the case is checked by a single judge;
h. the defendant ' s error statement, the statement has been fulfilled
all elements in the criminal formula are accompanied with
qualifiers and idlers or actions that
are dropped;
i. provisions to whom the cost of the case is charged with
mentions the exact number and the provisions
regarding the evidence item;
j. The caption that all the letters were turned out to be fake or
The description where the falsehood is, if there is
The authentic letter is deemed false;
k. order for the defendant to be detained or remain in custody
or be released;
l. day and date of the verdict, the name of the public prosecutor, name
the judge that cut off and the name of the panitera;
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(2) Not in compliance with provisions in paragraph (1) letter a, b, c, d, e, f,
h, j, k and l this section result in null and void terms.
(3) The termination is implemented immediately according to the provisions of this section.
This legislation.
The explanation of Article 197 of the paragraph (2) of the KUHAP:
" Unless it is in the letters a, e, f and h, if it occurs
the peculiaryness and or error in writing, then the peculiarness and
or error writing or editing does not cause
limit Verdict by law. "
3. That if Article 199 paragraph (2) of the KUHAP is associated with Article 197
KUHAP, then the ruling is not an idation to a null ruling
by law if there is no provision:
b. complete name, place of birth, age or date of birth, type
gender, nationality, place of residence, religion and work
defendant;
c. indictments, as contained in the indictment letter;
d. Carefully compiled consideration of the facts and
states and the proof tools obtained from
checks at the trial that are the basis of the error determination
the defendant;
j. The caption that all the letters were turned out to be false or captions
where the falsehood is, if there is an authentic letter
is considered false;
k. order for the defendant to be detained or remain in custody or
release;
l. day and date of the verdict, public prosecutor name, judge name
the disconnect and name panitera.
4. That after being compared to the ruling requirements is not
the idling as described above, Putermination of the Court
Agung Number 591 K/Pid.Sus/ 2010 a.n. Prof. Dr. Romli Atmasasmita
and the Supreme Court Decree Number 102 /PK/Pidsus/2011 a.n.
John Waworuntu is not a desecration of the desecration
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void for law because it does not set the set terms
in Section 197 paragraph (1) and Section 199 paragraph (1) KUHAP;
5. That the provision of the ruling is not null and void
by law as set in Article 199 paragraph (2) juncto
Article 197 of the paragraph (2) of the KUHAP raises legal uncertainty for
The defendant/convict, due to the status of The law becomes unclear
whether released or released as it exists in
the ruling, or following the previous ruling because the verdict is not
The idlers are considered null and void;
6. Also for victims or parties who feel aggrieved over
the verdict is not an aborted idation for the sake of the law,
experiencing legal uncertainty as the applicant has experienced.
That becomes a question for the victim. or any other party that
feeling aggrieved is how the law of the verdict is not
the discharges are null by the law against any other that
has a connection to the case? Whether the ruling
can still be used as a referral basis for the case
another to be issued SP3, given that the ruling is null and void
the law?
7. That since the change in the 1945 Constitution, there has been " a fundamental change in the constitutional system
the Republic of Indonesia, as set out in Article 1 of the paragraph (3) of the Constitution
1945, that Indonesia is a legal state. As for the traits
as a legal state is the acquisition of human rights,
including the right to recognition, guarantee, protection, and
fair legal certainty;
8. That the 1945 Constitution of the Constitution provides a very "strong" guarantee of the recognition of human rights. Article 28D
paragraph (1) of the Constitution of 1945 provides an instrument of the right to be entitled
recognition, guarantee, protection, and legal certainty of fair
as well as the same treatment before the law;
9. That the recognition, warranty, protection, and legal certainty
the fair as referred to above also includes recognition,
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assurances, and protection of applicable law principles
universal. One of the legal principles recognized by its existence in
the Indonesian legal system is a legal certainty;
10. That while the definition of the ruling is null and void
as set in Section 199 paragraph (2) juncto Article 197 paragraph
(2) KUHAP is not found in the laws
nor Memorie van Toelichting. According to the Law of State Law Expert,
Prof. Dr. Yusril Ihza Mahendra, S.H., M. Sc, stated "The verdict
the court is said to be" null and void " (venrechtswege nietig or
ab initio legally null and void) meaning a ruling It was originally
there was never a (never existed). Since there never was,
then the ruling does not have legal power and
not carrying a legal effect " (Prof. Dr. Yusril Ihza Mahendra, SH.,
M. Sc, "Legal opinion of Ruling Null for Law", 15
May 2012, accessed at http://yusril.ihzamahendra.com).
11. That in order to be a legal certainty for the Parties regarding
the ruling is not a null and void idation as
is set in Section 199 paragraph (2) juncto Article 197 verse (2) KUHAP,
then there must be an interpretation of the meaning and size of the null verdict
for the sake of the law, so that the ruling should be certain.
C. The ruling of the Unlawful Act by Law as set in Article 197 (2) of the Penal Code Creates Legal Uncertainty For The Penal, Law Enforcement Apparatus, The Victims Or The Parties To The Disadvantaged
1. That the verdict void by law as
is set up in Article 197 of the paragraph (2) of the Criminal Code (2) of the KUHAP gives rise to uncertainty
the law for the convict, whether to undergo punishment or should
be free, given in the Termination There is no command
withheld or other points present in Section 197 paragraph (1)
KUHAP resulting in ruling null and void;
2. That the verdict void for the sake of law as
is set up in Article 197 of the paragraph (2) of the KUHAP elicits the uncertainty
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the law for the prosecutor who will carry out the execution, as it could
be reported with a criminal offence deprive another person
as set in Section 333 of the Criminal Code, for holding
a person on the basis The verdict is null and void;
3. That the ruling ruling is null and void as
is set up in Article 197 of the paragraph (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal Code (2) of the Criminal However, in fact,
The convict was not executed and did the resistance because
considered the verdict null and void;
4. That in order to be a legal certainty for the parties regarding
the ruling ruling is void by law as set
in Article 197 of the paragraph (2) KUHAP, then there must be an interpretation
about the meaning and size of the verdict null and void for the sake of that law.
IV. Petitum
That of the entire dalil-dalil described above and the evidence attached,
with this the applicant please to the Constitutional Court of Justice for
may please:
1. Accept and grant a request for the whole;
2. Stated Article 195 of the Law No. 8 of 1981 on KUHAP and Article
13 paragraph (2) Act 48/2009 conditional constitutional, throughout the phrase
"pronounced at open trial for the public" is defined that " Before
read the verdict in the open trial for the public,
the court is obligated to publicly notify
the general public and the parties regarding the schedule
the reading of the verdict in order for the the general public who wants to know
The court ' s ruling is actual can attend the verdict reading
that ".
3. Stated Article 195 of the Law No. 8 of 1981 on KUHAP and Article
13 verse (2) Act 48/2009 has a binding legal force, as long
the phrase "spoken at open trial for the public" is defined " Before
reading The verdict in the hearing is open to the public,
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the court is obligated to publicly notify
the general public and the parties concerned about the schedule
The reading of the verdict so that the general public wants to know
The court ruling can actually attend the reading of the verdict
it ".
4. Giving interpretation of the verdict null and void as set
in Article 199 paragraph (2) and Article 197 paragraph (2) Act No. 8 of 1981
on the Penal Code to comply with the 1945 Constitution.
5. The interpretation of the ruling is null and void as set
in Article 199 of paragraph (2) and Article 197 paragraph (2) Act No. 8 of 1981
on the Penal Code to have a binding legal force.
6. Ordering a loading of this ruling in the Republic News of the Republic
Indonesia.
If the Court of Justice of the Court argues another, please a fair ruling-
be fair (ex aequo et bono).
[2.2] weighed that to prove its control, the applicant has
submitted evidence of a letter or written proof given the evidence of P-1 until
with the P-5 evidence that has been received in the Court of Justice on 23
July 2012, as well as the P-6 evidence and the P-7 evidence that had been received by Kepaniteraan
The court was on 19 September 2012, as follows:
1. Proof of P-1: Photocopy of the Basic Law of the Republic of Indonesia Year
1945;
2. Evidence P-2: Photocopy Act No. 8 of 1981 on
Criminal Event Law;
3. Proof P-3: Photocopy of KTP and Temporary Permission Card Practice Advocates
a.n. Muhamad Zainal Arifin;
4. Evidence P-4: Photocopied Online News Republika.co.id, "This Is The Reason
Authorization To Stop The Sisminbakum Case", March 31, 2012;
5. Proof P-5: Photocopying "Legal Opinion Against Ruling Null
Law", created by Prof. Dr. Yusril Ihza Mahendra, 15 May
2012, accessed at http://yusril.ihzamahendra.com;
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6. Evidence P-6: Photocopy Law Number 48 of the Year 2009 on
Judiciary Power;
7. Evidence P-7: Photocopy NPWP a.n. Muhamad Zainal Arifin;
[2.3] weighed that in order to shorten the description in this ruling,
everything that happened at the trial was appointed in the news of the event
the trial, and was the one entity that cannot be separated by
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant's plea is
testing the constitutionality of Article 195 throughout the phrase " spoken at the open hearing
for the public" and provides an interpretation of the null and void sentence
as set out in Section 197 paragraph (2) and Section 199 paragraph (2) Invite-
Invite Number 8 Year 1981 on Law Penal Event (Sheet Country
Republic Of Indonesia In 1981 Number 76, Addition Of The Republican State Sheet
Indonesia Number 3209, subsequently called Act 8/1981), as follows:
Article 195: " All court rulings are valid and have
the power of the law if is spoken at open court for the public.
Article 197 paragraph (2): "Not to comply with the terms in paragraph (1) of the letter a, b, c,
d, e, f, h, i, j, k and l this section resulted in the null verdict
by law.
Article 199 paragraph (2): "The provisions as referred to in Section 197 of the paragraph
(2) and the paragraph (3) are valid also for this section."
As well as Article 13 paragraph (2) throughout the phrase " spoken in the hearing
open to the public" Law Number 48 of the Year 2009 on Power
Judiciary (Indonesian Republic of Indonesia Gazette 2009 number 157,
Additional sheet of State of the Republic of Indonesia Number 5076, further
called Act 48/2009), which he further stated, "The termination of the court
only valid and has legal power if is spoken in open trial for the public", against Article 1 of the paragraph (3), Section 28D verse (1), and Section
19
28F The Basic Law of the Republic of Indonesia in 1945 (next
called UUD 1945) which is in place, as follows:
Article 1 paragraph (3): "The State of Indonesia is the legal state."
Article 28D verse (1): "Each person is entitled to the recognition, warranty,
protection, and fair legal certainty as well as
equal treatment before the law.
Article 28F:" Everyone has the right to communicate and
obtain information to develop personal and
social environment, as well as the right to seek,
acquire, possess, store, process, and
relayed information using everything
type of channel available."
[3.2] weighed that before considering the subject,
Constitutional Court (hereafter called the Court) in advance. It would have been
considering the following:
a. The Court's authority to prosecute the a quo;
b. Legal standing (legal standing) the applicant to submit
a application;
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 Constitution of 1945, Article
10 paragraph (1) of the letter of the Law No. 24 of 2003 on the Court
The Constitution as amended by Act No. 8 of 2011
on the Change of the Act No. 24 Year 2003 on
Constitutional Court (Republican Gazette) 2011 Indonesia Number
70, Additional Gazette Republic of Indonesia Number 5226, next
called Act MK), and Article 29 paragraph (1) letter a UU 48/2009, one
Constitutional authority of the Court is testing Act against
Constitution of 1945;
20
[3.4] weighed that by the applicant being moved by the applicant
is the constitutionality testing of the Act in casu Act 8/1981 and the Act
48/2009 against the 1945 Constitution, then the Court of Law To be controlled;
Legal Occupation (Legal Standing) The applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act and
The explanation, which may act as the applicant in testing an
The Act against the Constitution of 1945 is those who regard the right
and/or the authority Its constitutionality was harmed by the effect
The act is motionless, which is:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the required Act
testing;
[3.6] It is also that the Court has since the Decree No. 006 /PUU-
III/2005 dated May 31, 2005 and Putermination Number 11 /PUU-V/2007 dated
September 20, 2007 and subsequent rulings have established that
loss of rights and/or constitutional authority in question
in Section 51 of the paragraph (1) the MK code must meet five terms, namely:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. the rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the test-mover;
21
c. The loss of the rights and/or such constitutional authority must be
specific and actual or at least any potential that according to reasoning
reasonable is certain to occur;
d. Due (causal verband) relationship between losses referred to
by the enactment of the testing Act;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postured is not
will or no longer occur;
[3.7] A draw that the applicant is at its point The following:
[3.7.1] Against Section 197 of the paragraph (2) and Article 199 paragraph (2) Act 8/1981:
The applicant is an advocate who is always in contact with various
the verdict of the idation is null and void. as set out in Section
197 paragraph (2) of the KUHAP and the ruling is not an idleone abort by law
as set in Section 199 paragraph (2) KUHAP. Accordingly, if
the verdict is null and void in favor of the applicant's client, then
The applicant is confused and confused to explain what the meaning and
the legal effort against the verdict is null and void;
the applicant is the case of the request. want to get the meaning of the verdict null and void for
later will be used as the basis for filing a legal effort
pretrial against the Investigative Stop Warrant (SP3) Case
Sisminbakum to be submitted to State Court of South Jakarta.
The applicant, as tax payer, postures have a legal position to
file a pretrial against the SP3 corruption cases because of the tax-
the tax which the applicant has paid to cover the loss
state finances due to the corruption of corruption. The interpretation of the verdict is null and void.
The law has a strategic value for the applicant to strengthen
The Applicant Dalil in submitting a pretrial legal effort;
the applicant According to the applicant, the issuer of the SP3 Case of the Sisminbakum no
based on the Supreme Court Decree No. 591 K/Pid.Sus/ 2010
dated 21 December 2010 on behalf of the defendant Prof. Dr. Romli Atmasasmita,
S.H., LLM. and Supreme Court Decree Number 102/PK/Pidsus/2011 over
name The penal of John Waworuntu, who was the cornerstone of the SP3.
22
is not a null and void ruling decision as
set in Section 199 paragraph (2) juncto Section 197 paragraph (2) KUHAP;
The Act of 8/1981 does not explain what the verdict is null and void for
the law so that the meaning of the ruling phrase is null and void.
surely;
The applicant is not asking for an interpretation of the verdict void by law
contained in Section 199 paragraph (2) juncto Section 197 paragraph (2) Act
8/1981, then there is a greater possibility of pretrial legal efforts against
SP3 Sisminbakum will be rejected by a State Court Judge because not
there is an official interpretation of the meaning of the verdict null and void;
The order to obtain legal certainty and compress the perception of
the meaning of the ruling null and void, then the applicant needs to submit a test
matter to that provision;
[3.7.2] Against Section 195 Act 8/1981 and Section 13 of the paragraph (2) Act 48/2009 throughout the phrase " spoken in open court for the public ":
The current has developed an interpretation among judges that the phrase " is pronounced
in open trial for the public " is in the reading of the ruling should
there is an irah-irah [sic] or the statement that "the verdict is read in
open hearing to the public", regardless of whether in the reading
the ruling, the general public knows the schedule reading of the verdict
so that it can attend The reading of the verdict, or not;
The case despite the phrase " is said in an open hearing to the public "
as stated above, but in reality society remains
the difficulty of accessing the reading of the verdict in particular the ruling of the appeal,
the cassation, and the review, because in practice during this judge only
prioritically formalistic side reading of the ruling with only
mentions "open trial for the public" without regard to openness
schedule reading of the verdict. In each ruling there is an irah-irah
[sic] "is pronounced at the open trial for the public", but in real the verdict
it is read in a closed hearing which is attended only by judges and
panitera, because the public does not know the schedule of the reading of the verdict.
How can the general public be able to attend the reading
the verdict, if the court in particular in the level of appeal, cassation, and
23
re-review never provided an open announcement
subject to the reading schedule of the ruling;
the applicant's request, as a citizen, has the right to be protected by Article
28F UUD 1945 to obtaining information by using everything
type of channel available, one of which is the right to know the verdict
in actual by attending the reading of the verdict. During this reading
the verdict of appeal, cassation, and review is always done
closed because the judge defines the phrase "uttered at an open hearing for
general" as set in Section 195 of the Law 8/1981 and Article 13 of the paragraph
(2) Act 48/2009 is only as a formal obligation to convey the irah-
irah [sic] " spoken in an open trial for the public" only;
the applicant's request as an advocate will always be in contact with the verdict of appeal,
cassation, and review of either in criminal and civil cases,
and would like to be present in the hearing the reading of the ruling to know
early and provide the best possible legal effort for its clients. However,
the judge or replacement panitera never informed the timetable
the reading of the verdict. Accordingly, the applicant has an interest
the law to question the intent of the phrase "uttered at the hearing
open to the public" set in Section 195 Act 8/1981 and Article 13
paragraph (2) Act 48/2009, whether to be intended only to provide
the liability of declaring irah-irah [sic] " spoken at the open trial for
general" or should there be an obligation to announce the schedule of the ruling to
the general public so that the party wants to know in actual
the court ruling may attend the reading of the verdict;
[3.7.3] Against the Applicant Theses above, under the provisions of Article 51 of the paragraph (1) the MK bill and the terms of the rights and/or authority losses
the constitutional ones as well as have been described above, According to the Court,
The applicant is as an individual of Indonesian citizens who professions
as Advocates which have constitutional rights set out in Section 28D
paragraph (1) and Article 28F of the Constitution of 1945 which the applicant is deemed to be harmed by
the enactment of Article 195, Article 197 of the paragraph (2), and Article 199 of the paragraph (2) Act 8/1981 as well as
Article 13 paragraph (2) Act 48/2009. The loss of such constitutional rights is
specific and actual as well as the causal relationship (causal verband) between
losses referred to the provisions of provisions in Act 8/1981 and the Act
24
48/2009 which is being honed by testing, as it has been stated
that the applicant is inconclusive regarding the consummation of
the verdict is null and difficult to access the reading process
The verdict in appeals, casings, and review, so
there is a possibility that the applicant's request would be granted
The constitutional rights loss as the postured will not be or not again
happens. Accordingly, according to the Court, the applicant has a position
legal (legal standing) to apply for a quo;
[3.8] A draw that is due to the competent court of prosecuting
a request for a quo. and the applicant has a legal position (legal standing)
to apply for a quo, then the next Court will
consider the subject;
Subject to the Court
Court hearings
[3.9] A draw that before considering the staple request,
The court needs to quote Article 54 of the MK Act that states, " Court
The Constitution may request the captions and/or meeting treatises
with the application being examined to the Assembly Deliberations
People, DPR, Regional Representative Council, and/or President ". Since the section
uses the word "may", then the Court should not hear
the statement of the People's Consultative Assembly, the House of Representatives, the Council
The Regional Representative, and/or the President in conducting the testing. over an
Act. In other words, the Court may request or not request
the captions and/or meeting treatises with respect to the application
are being examined to the People's Consultative Assembly, House of Representatives
People, Council The Regional Representative, and/or the President, depends on the urgency
and its relevance. Because of the legal problems in the a quo
clearly, the Court sees no urgency and relevance for
requesting the description and/or meeting treatises of the People's Consultative Assembly,
Council The People's Representative, the Regional Representative Council, and/or the President,
so the Court directly considered and then disconnected
a request quo;
25
[3.10] weighed, the applicant on the sole postulate that the verdict
that is null and void for the law as set in Section 199 paragraph (2) juncto Article
197 paragraph (2) Act 8/1981 contains the uncertainty of the law either for
the indictment/convict, victim, nor the parties feel aggrieved;
[3.10.1] That the applicant, on the basis of the testing of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution, implores the Court to provide an interpretation
regarding the verdict null and void as set out in Section 197 of the paragraph
(2) 8/1981. The Court found the fact that the a quo
uses the same basic testing basis and has legal reasons that
the essence is the same as the Number 69 /PUU-X/2012 That is dated November 22
2012 so that it is based on Section 60 of the paragraph (1) of the MK Act and Article 42 of the paragraph (1) PMK
6/2005, the Applicant's postulate of Article 197 paragraph (2) of Act 8/1981 is
ne bis in idem;
[3.10.2] That Article 199 of the paragraph (2) Act 8/1981 states, " The terms referred to in Section 197 of paragraph (2) and paragraph (3) apply also to
this section."as for Explanation of Section 199 paragraph (2) Act 8/1981 states,"Simply
clearly." The court has given Legal considerations against Article 197
paragraph (2) Act 8/1981 in Decree Number 69 /PUU-X/2012 a quo. Because
the provisions as referred to in Article 197 paragraph (2) apply also to
Section 199 paragraph (2) then legal considerations and amar rulings regarding the Article
197 paragraph (2) of that mutatis mutandis apply anyway to Article 199 paragraph (2) Act
8/1981;
As for Article 197 paragraph (3) Act 8/1981 as referred to
in Article 199 paragraph (2) Act 8/1981, the Court found the fact that
The applicant in his Permohonal Improvement is only specific dehumanize
constitutionality of Article 199 paragraph (2) juncto Section 197 paragraph (2) Act 8/1981 because
related to the interpretation of the ruling null and void
does not encode the constitutionality of Article 199 verse (2) juncto Article 197 paragraph
(3) Act 8/1981, so according to the Court, Related applicants
Section 199 paragraph (2) juncto Section 197 paragraph (3) Act 8/1981 cannot
considered;
26
[3.11] Draw, the applicant on the poate postulate that the phrase
"is spoken at open court for the public" in Article 195 of the 8/1981 Act and the phrase
"is said in open session to the public" Section 13 of the paragraph (2) of the Act
48/2009 meaning that the phrase should be set forth in
The ruling without any obligation provides an announcement regarding the schedule
the reading of the ruling to the public, has impeded access.
the public to attend a hearing of the verdict. Although
The applicant submits a test application to the provision,
but as indicated on the remediation of his application, the applicant
poise that almost the entire appeal of appeal, cassation, and
The review was read in an open hearing to the general public
because the trial was attended only by judges and panitages. The general public
cannot attend the ruling, since the court is not open in
giving a ruling schedule to the community;
[3.11.1] A draw that against the applicant ' s dalil, Article 13 of the paragraph (2) of the Act 48/2009 stated, "The termination of the court is only valid and has
the power of the law if it is pronounced in an open hearing to the public", and
The explanation stated, "Clearly". According to the Court, forming
the Act, in its discretion, determines that the amar ruling of the appeal,
amar the case of the case, and the amar verdict review rulings are mandatory
to the parties by the court of the degree first, despite the parties or
one of the parties was present at the time of the verdict of the verdict. In such provision
contained the wisdom that the distance away from the parties to the court
high or to the Supreme Court, would be a barrier to the parties to
attend the pronunciations of the verdict, or not Either party or any of the
parties by the high court or by the Supreme Court, so necessary
be notified of a high court ruling or the Supreme Court or
the review ruling is returned to the parties, and since an amar notification
that verdict is a timeout for legal efforts. Good legal effort. usual
and outstanding legal efforts are calculated;
[3.11.2] A draw that the Court needs to refer to Article 40 of the paragraph (2) Invite-Invite Number 14 Year 1985 about the amended Supreme Court
last with the Act Number 3 Year 2009 on Second Change
27
On Act Number 14 of 1985 on the Supreme Court (Sheet
state of the Republic of Indonesia in 2009 number 3, additional leaf of state
Republic of Indonesia Number 4958) stated, "Supreme Court of Justice Grand
is said in an open hearing to the public";
That the Court also needs to refer to the perinvite rules-
The invitation in particular set about freedom for the community to
access the information, as follows:
Article 28F UUD 1945 declares, " Everyone is entitled to
communicate and obtain information to develop personal and
social environment, as well as the right to seek, acquire, possess,
save, process, and convey information by using
any kind of channel available."
Further Tindak from the above provisions, Government and House to form
Law Number 14 Year 2008 on Public Information Openness
(sheet State of the Republic of Indonesia 2008 Number 61, Additional
The state sheet of the Republic of Indonesia Number 4846, subsequently called the KIP Act)
which on the considerance (weighed) the letter a and the letter b stated as
following:
a. That information is a subject matter of any person for
personal development and its social environment as well as part
is important for national resilience;
b. that the right to obtain information is a human right and
The openness of public information is one of the country's most important traits
democratic that upholds the sovereignty of the people to realize
host of a good country;
In the General Description of the KIP Act, it is stated as follows:
"Each Public Agency has an obligation to open up access
Public Information relating to the Agency The public is for the community
wide. The Public Bodies ' scope in this Act includes executive institutions,
judiciary, legislative, as well as other state organizers who are getting the funding
of the State Revenue and Shopping Budget (APBN) /Budget Revenue
and Regional Shopping (APBD) and includes non-governmental organizations, both
legal and non-legal entities, such as agencies
swadaya communities, sororities, and organizations others who manage or
28
using partially or wholly sourced funds from APBN/APBD,
the public and/or overseas donations."
That the court with an asas of openness gives freedom
to Each person to access the activities in the course of the process
the judiciary is in accordance with the laws. In events
in accordance with the applicable legal process, there is a difference between the process
the trial in the first-degree trial and the trial process at the level
of appeal, the level of cassation, and in the review event is returned. The trial in
first-degree trial, unless otherwise specified by the Act,
any person, who would, may, may witness the course of the trial.
on the court of appeal, the rate of cassation, and the review,
because the judge only reads the case file from the court
The first degree then if at the stage the parties are or false
one party to the judge, can be suspected of being an attempt to influence
the judge in various ways that is not true. So there is a legal difference of the event
between the trial process in the first-degree trial and the trial process
at the level of appeal, the level of cassation, and the review. Nevertheless,
access to those interested in knowing how far the development is
the device, still gets information based on the legal provisions of the event as
notification amar verdict for the non-present party at the time of pronunciation
verdict; notice of appeal; notice and submission
copy of the memory of the appeal; notice and submission of a copy of the memory
appeal; notification of the ticket in court high to para
party; notice of amar high court rulings to the parties;
notice the statement of the cassation plea; notice and submission
copies of the cascative memory; notice and submission of a copy of the counter memory
cassation; the notice of amar's judgment of the case to the parties. Also
if either party proposes a review, process
trial of the new evidence tool (novum) is delivered to the party
its opponent to attend if desired by it; Review reason
submitted a copy to his opponent; registration case registration
re-delivered to the parties; amar the review ruling is back too
delivered to the parties for preparation create a memory or counter
memory of an appeal, cassation or review. Even the parties can
29
implores a complete copy of the court ruling in all levels
the judiciary. Based on legal considerations above, according to the Court, access
against the applicant ' s justice is fulfilled so that the ruling
the applicant a quo is unwarranted according to the law;
While the information is on the schedule The reading of the verdict in the body
The judiciary at all levels is not included in the information excluded
or the public information which cannot be provided by the public body [vide Article 6
juncto Article 17 of the KIP Act] and the judicial body ' s ruling is also not included in
the category of information that excluded [vide Article 18 paragraph (1) letter a KIP Act], as well
provisions in International Covenant on Civil and Political Rights (ICCPR) which
has been passed with Act No. 12 of 2005 concerning
The unrest International Covenant on Civil and Political Rights (Kovenan
International on Civil and Political Rights) [state Gazette of the Republic
Indonesia 2005 No. 119, Additional Gazette Republic
Indonesia Number 4558], determining one of the judicial asas is the asas fair
play, however, according to the Court with the event law as
described above, such openness principles have been implemented as
should be;
[3.12] A draw that is based on all legal considerations in the Above,
The court argued that the entire control of the applicant
a quo is not proven by law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court is authorized to prosecute the a quo;
[4.2] The applicant has Legal standing (legal standing) to submit
application a quo;
[4.3] Pokok requesting Applicant regarding Section 197 paragraph (2) Act 8/1981
ne bis in idem;
30
[4.4] Pokok the applicant's request regarding Article 199 paragraph (2) juncto Article
197 paragraph (2) Act 8/1981 ne bis in idem;
[4.5] Pokok requesting Applicant regarding Section 199 of the paragraph (2) juncto Article
197 paragraph (3) Act 8/1981 is not considered;
[4.6] Pokok requesting Applicant regarding Article 195 of the phrase
"is spoken at open trial for the public" Act 8/1981 and Article 13 of the paragraph
(2) to the phrase " spoken in open session to the public" UU
48/2009 is unwarranted according to law.
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended with the 2011 8 Year Act on
Changes to the Law Number 24 of 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia of 2011 Number 70,
Additional Sheet State of the Republic of Indonesia Number 5226), as well as 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 RULING
Prosecute,
States:
1. The request for the applicant regarding Article 197 paragraph (2) Act Number
8 Year 1981 on Criminal Event Law (Republican Gazette
Indonesia Year 1981 Number 76, Additional Gazette Republic
Indonesia Number 3209) did not acceptable;
2. Request for Applicant Regarding Article 199 paragraph (2) Act Number
8 Year 1981 on Criminal Event Law (Republican Gazette
Indonesia Year 1981 Number 76, Additional Republican Gazette
Indonesia Number 3209) did not acceptable;
3. Reject the supplicant's request for other than and the rest.
31
Thus decided in a Meeting of the Judges by
the nine Constitutional Judges of the Moh. Mahfud MD, as the Chairman, Achmad Sodiki, Anwar Usman, Ahmad Fadlil Sumadi, Harjono, M. Akil
Mochtar, Muhammad Alim, Maria Farida Indrati, and Hamdan Zoelva, respectively-
respectively as Member of the on Tuesday, respectively. Date eleven, September, year two thousand twelve, and spoken in the plenary session of the Constitutional Court open to the public at Thursday, the thirty, the month of May, the year two thousand thirteen, finished pronounced at 14:00 WIB, by the nine Constitutional Judges, M. Akil Mochtar, as the Chair of the Union Members,
Achmad Sodiki, Anwar Usman, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim,
Maria Farida Indrati, Hamdan Zoelva, and Arief Hidayat, respectively as
Members, with accompanied by Wiwik Budi Wasito as Panitera Replace,
attended by the Government or representing, and the People's Representative Council or that
represents, without being attended by the applicant. Against this Court's ruling, Judge
The Constitution of Harjono has a different opinion (dissenting opinion).
CHAIRMAN,
ttd. M. Akil Mochtar
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Anwar Usman
ttd.
Ahmad Fadlil Sumadi
ttd.
Harjono
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
Hamdan Zoelva
ttd.
Arief Hidayat
32
6. DIFFERENT OPINIONS (DISSENTING OPINION)
Against this Court of Justice, in particular regarding the phrase "uttered at the hearing
open to the public" in Article 195 of the 8/1981 Act and the phrase " spoken in
open trial for the public" in Section 13 paragraph (2) Act 48/2009, Hakim
Constitution of Harjono has a different opinion (dissenting opinion), as
below:
The applicant is at its point. embed the terms of the court ruling that
only valid and have the legal power if spoken at open hearing
for the public. According to the applicant, as an advocate, based on his experience
during this time, the court of appeal, cassation, and review, did not
once provided information on the schedule of the reading of the verdict. In
the request, the applicant at all does not issue a process
the trial before and after a ruling is pronounced in/in a hearing that
is open to the public. The applicant pleads to the Court to provide
the constitutional interpretation of Article 195 of the Criminal Code as long as the phrase "pronounced in
open trial for the public" and Article 13 of the paragraph (2) of the Justice Power Act
throughout the phrase " is said in an open hearing to the public";
Justice Act
Before giving any legal consideration of what it means
with" open trial for the public ", it needs to be considered
regarding the Justice Power Act, as follows:
Considerans (weighing) the letter b of the Justice Power Act
stated, "that to realize the power of an independent judiciary and
the judiciary is clean as well as the wideable judiciary needs to be done a unified judicial system arrangement;". Further in its explanation is stated that the Act of Justice was created, one of which, to reformulate
systematics of Law Number 4 of the Year 2004 on Justice Power
in relation to the arrangement Comprehensive with Chapter II about
Asas the Governing Powers, in particular Section 13 of the paragraph (2),
that governs that, "The court of termination is only valid and has the legal power if is spoken in open session for the public";
33
This Justice Act, in accordance with the constitution applies, is good
for the Supreme Court and the judicial body that is below it in
the general judicial environment, the religious justice environment, the judicial environment
the military, the judicial environment of the state enterprise, and the Constitutional Court as
the executor of the judiciary. Thus, both the Supreme Court and
judicial bodies that are under it in the general judicial environment,
the religious justice environment, the military judicial environment, the judicial environment
the country ' s endeavour, and the Court of Justice The Constitution, in its run
its authority, should be appropriate in this Justice Act.
Article 13 of the paragraph (2) of the Rule of Justice a quo applies binding to
the Supreme Court and the judicial body which are in the underneath and the Court
Constitution. The phrase "of the judiciary" in Article 13 of the paragraph (2) of the Act of Power
Judiciary a quo is the ruling of the Supreme Court and the judicial body
that is under it and the ruling of the Constitutional Court, which means all
The verdict is valid and has the power of law if spoken in
the trial is open to the public. Accordingly, the meaning of the phrase "is pronounced in
open trial for the public" in Article 13 of the paragraph (2) of the Justice Power Act,
binding the Supreme Court and the judicial body that is under it and
the Constitutional Court;
Open Session For the General
By basing the description above, next needs
to be considered what "open trial for the public" is,
which in case a quo is The verdict. Before answering
the question, it needs to be referenced in advance of some of the provisions that
set about the pronunciation of the court ruling, i.e. among others:
a. Law No. 14 of 1985 about the Supreme Court that has been
amended last with the Law No. 3 of 2009 on
Second Amendment to the Law No. 14 of 1985 on
Supreme Court (State Sheet) 2009 Republic Of Indonesia Number 3,
Additional Gazette Republic Indonesia Number 4958):
Article 40 paragraph (2):
"The Supreme Court is pronounced in open trial for the public."
34
The explanation of Article 40 of the paragraph (2):
"The disconnect does not meet the terms of the paragraph (1) and the paragraph (2) of this section
void by law.";
b. Act No. 2 of the Year 1986 about the General Injustices that have been
amended last with the Law No. 49 Year 2009 on
Second Amendment to the Law No. 2 Year 1986 concerning
General Justice (State Sheet) Republic Of Indonesia 2009 Number
158, Addition Of State Sheet Indonesia No. 5077):
The passage of Article 52A paragraph (1), paragraph (2), and verse (3):
(1) The Court is required to provide access to the public to obtain information relating to the ruling and the cost of the proceedings in the proceedings.
(2) The court is required to pass a copy of the verdict to the party
in the slowest 14 (fourteen) working day since
The verdict is pronounced.
(3) If the court does not implement the provisions as
referred to paragraph (1) and the paragraph (2), the speaker of the court is subject to sanctions
as set in Laws.
The explanation of Article 52A paragraph (1) and paragraph (2): "Be clear enough."
The explanation of Article 52A paragraph (3):
"In terms of the copy of the ruling is not delivered, the court chairman who
is concerned with sanctions The administrative is a written reprimand from
The Chief Justice.
Which is referred to by "laws" is the Invite-
Invite Number 14 Year 2008 on Public Information Openness."
c. Act No. 5 Year 1986 about the Judicial Reform of the State
which was amended last by Act No. 51 of 2009
on the Second Amendment to the Law No. 5 Year 1986 of
The Judicial Justice of the Business System Country (sheet of state of the Republic of Indonesia of the Year
2009 Number 160, Additional Gazette of the Republic of Indonesia Number
5079):
The provisions of Article 51A paragraph (1), paragraph (2), and paragraph (3):
35
(1) The Court is required to grant people access to obtain information relating to the ruling and the costs of the proceedings in the proceedings.
(2) The court is required to deliver a copy of the verdict to the parties
in the slowest 14 (fourteen) business days since
The verdict is pronounced.
(3) If the court does not implement the provisions as
referred to the paragraph (1) and paragraph (2), the court speaker is subject to sanctions
as set in laws.
The explanation of Section 51A paragraph (1):
"Related to the enactment of the Information Opening Act
Public, the court is required to open or provide access to
the public for knowledge and information about data on the verdict as well as
charges in court.
The explanation of Section 51A paragraph (2): "It is fairly obvious."
The explanation of Section 51A of the paragraph (3):
"In case a copy of the ruling is not delivered, the chairman of the court
is concerned with administrative sanction of a written reprimand from
Supreme Court Chief.
The paragraph of Article 70 of the paragraph (1), paragraph (2), and verse (3):
(1) For the purposes of examination, the Speaker of the Session opened the trial and put it open to the public.
(2) If the Assembly of Judges views that dispute that
arraignment regarding public order or state safety, the trial can be declared closed to the public.
(3) Not in compliance The provisions as referred to in paragraph (1)may cause limit of ruling by law.
The explanation of Article 70: "Is clear enough."
the paragraph 108 paragraph (1) and paragraph (3):
(1) The Court's Termination must be spoken in the open session for the public.
36
(3) Not in compliance with the terms referred to in paragraph (1)
result in the invalid and unauthorised ruling of the Court of Justice.
explanation of Article 108: "It is quite clear."
d. Law No. 7 of the Year 1989 on the Judicial Injustice that has been
amended last with the Law Number 50 of the Year 2009 on
Second Amendment to the Law No. 7 of 1989 concerning
Religious Courts (State Sheet) Republic of Indonesia Year 2009 Number
159, Additional Gazette Republic of Indonesia Number 5078):
paragraph 60:
"Redemption and Court ruling is only valid and has the power
the law if spoken in open trial for the public." Description of Section 60:
"Which is referred to the assignment is a court decision
case of the plea, while the ruling is the decision of the Court
on the case of the lawsuit under the dispute.
The provisions of Article 64A paragraph (1), paragraph (2), and paragraph (3):
(1) The Court is required to provide access to the public to obtain information relating to the ruling and the cost of the proceedings in the proceedings.
(2) The court is required to pass a copy of the verdict to the party
in the slowest 14 (fourteen) working day since
The verdict is pronounced.
(3) If the court does not implement the provisions as
referred to paragraph (1) and the paragraph (2), the speaker of the court is subject to sanctions
as set in Laws.
The explanation of Section 64A of paragraph (1) and paragraph (2): "Be clear enough."
The explanation of Section 64A paragraph (3):
"In terms of the copy of the ruling is not delivered, the court chairman who
is concerned with sanctions The administrative is a written reprimand from
The Chief Justice.
Which is referred to by "laws" is the Invite-
Invite Number 14 Year 2008 on Public Information Openness."
37
paragraph 80 paragraph (2):
"Examination A divorce lawsuit was conducted in a closed session." The explanation of Article 80 of the paragraph (2): "Is quite clear"
the paragraph 81 paragraph (1):
" The court regarding the divorce lawsuit is pronounced in an open trial for the public."
The explanation of Article 81 of the paragraph (1):"Is pretty clear"
e. Law No. 31 Year 1997 on Military Justice (Sheet
The State of the Republic of Indonesia in 1997 No. 84, Extra Sheet
State of the Republic of Indonesia Number 3713):
The terms of Article 141 of the paragraph (2) and paragraph (3):
(2) For the purposes of examination, the Chief Justice opened the hearing and stated the hearing was open to the public, unless in case the trial decency was declared closed to the public.
(3) In cases involving secret military and/or state secrets, the Chief Justice may declare a closed hearing for the public.
The explanation of Article 141 of the paragraph (2) and verse (3): "Is quite clear."
Article 192:
"The Court's termination is only valid and has the power of law if
is pronounced at open trial for the public."
explanation of Article 192: " Clear enough."
Article 206:
"The Battle of the Military Court is pronounced in open trial for the public."
The explanation of Article 206:"Is quite clear."
The paragraph 307 verse (1):
"High Military Court termination may be dropped on that day
in an open hearing to the public, or postponed the other day to be notified to both parties."
The explanation of Section 307: "It's pretty obvious."
38
The following sections 319 verses (1) and paragraph (3):
(1) The High Military Tribunal shall be uttered in open trial for the public.
(3) Not subject to the terms as referred to by paragraph (1)
result of the High Military Court ruling unlawfully and has no legal force.
The explanation of Article 319 of the paragraph (1) and verse (3): "Is quite clear."
f. Law Number 14 Year 2002 on Trial Tax (Sheet
State of the Republic of Indonesia 2002 No. 27, Extra Sheet
State of the Republic of Indonesia No. 4958):
The provisions of Article 83 of the paragraph (1) and paragraph (2):
(1) The Tax Tribunal ' s ruling should be uttered in open hearing to the public.
(2) Not subject to any provision referred to in paragraph (1),
Tax Court ruling is invalid and has no legal force and therefore the verdict is meant to be pronounced back in Open session for the public.
The explanation of Article 83 of the paragraph (1) and verse (2): "It is pretty clear."
g. Law No. 24 of 2003 on the Constitutional Court
as amended by Act No. 8 of 2011
on Changes to the Law No. 24 of 2003 concerning
Constitutional Court (Sheet Republic Of Indonesia In 2011
Number 70, Additional Gazette Republic of Indonesia Number 5226):
Article 28 paragraph (5):
"The Constitutional Court of Justice is pronounced in open trial for the public."
Description of Section 28 of the paragraph (5): Clear enough.
Article 47:
"The Constitutional Court's decision gains a fixed legal force since
is finished in the plenary session open to the public.
The explanation of Article 47:"Enough clear. "
39
h. Law No. 46 of 2009 on Criminal Court
Corruption (sheet State of the Republic of Indonesia 2009 No. 155,
Additional Gazette Republic of Indonesia Number 5074):
paragraph 25:
"Examination at the Corruption Criminal Court hearing conducted
-under the law of the criminal event that applies, unless otherwise specified in this Act. "
Description of Section 25:
"In question" applicable criminal event law " is
Act No. 8 of 1981 on Criminal Event Law,
Act Number 31 Year 1999 on Eradication The
Corruption Criminal Act as amended by the Act
Number 20 of 2001 on Changes to Law Number
31 Year 1999 on Eradication Of The Corruption Criminal, Invite-
Invite Number 14 Year 1985 about the Supreme Court as
has been amended last with Act Number 3 of the Year 2009
about the Second Amendment to the Law No. 14 Year 1985
about the Supreme Court."
The Criminal Court of Criminal Justice Act does not regulate As for
The hearing of the verdict, but Article 25 of the a quo bill at the point has been
determining that the examination at the Criminal Criminal Court hearing
is based on the laws of the applicable criminal event that set in
KUHAP, Corruption Eradication Act of Corruption, and Court Act
The Great, so the provisions of the pronunciations of the verdict
which are open to the public in the Corruption Penal Court
in reference to Section 195 of the Criminal Code, as mohoned
their pronunciation by the applicant;
i. Law No. 11 of the Year 2012 on Criminal Justice System
Child (Indonesian Republic of Indonesia Gazette 2012 Number 153,
Additional Gazette Republic of Indonesia Number 5332):
The paragraph of Article 3 of the letter h:
40
"Every Child in the criminal justice process is entitled to: ... h. obtaining justice in the face of an objective, impartial Child court, and
in a closed session for the public;
The explanation of Article 3 of the letter h: "Is quite clear."
The paragraph of Section 54:
"Judge check for Child matters in a declared closed trial
for the public, unless the reading of the verdict."
Description of Section 54:
"Child case checks must be performed in a closed space
Children's Special Session. Nevertheless, in a given way and
is viewed as necessary, the Judge can set a case check
is done publicly, without diminuating Child rights.
Certain things and are viewed that need to be between other because of the nature and
the state of the case must be done publicly. A nature of the case
is publicly checked, e.g. traffic violation, and
viewpoints, e.g. case checks at the
case events."
Section 61 verses (1):
"The reading of the court ruling is conducted in an open trial for the public and may not be attended by the Child."
The explanation of Article 61: " Clearly."
Based on the provisions of the statute, the hearing
The ruling must be held in an open hearing to the public. To
guarantee the pronunciation of the verdict held in an open hearing to the public,
surely required a proper and decent notification mechanism, which
is addressed to the litigers and also to the the public
in general who wishes to attend the hearing. The sentencing hearing
is done publicly for the purpose of ensuring that there is no
manipulation of the substance of the ruling so that what the judge says
consconded with what is indicated on the inside The script of the verdict and copy
the verdict. This is the case of the law. Therefore,
rather than simply opening the door or window of the room where the verdict is read,
The more important thing is whether the public or the public has earned
41
information will be a reading of the verdict. It is possible that the space where
the verdict is read closed doors and windows because the room is air-conditioned,
but to the public or the public has been notified of the
reading of the verdict in that space;
Of the information openness aspect, it would be more meaningful
than no information about the reading of the verdict, and the reading
performed unknown information by the general though it was done in
the space Doors and windows open. What is more, to be able to enter
the room is not easy and free, for example, that any guest
is required to request permission first. If after being informed of
the existence of a verdict reading was not present, it was not
being a hindrate to read the verdict because of the principle of openness
information has been met;
With The verdict of the Court in case of a quo, could be
raises the opposite, because the practice of being regrettable
The applicant is declared to have been correct. This can then be imitated by another (judicial)
. Therefore, in my opinion, should the Court be able to
provide a requirement against the definition of the phrase "spoken at open hearing
to the public" at least by notifying the parties
that matter, family, or legal power, or by calling
that was publicly announced.
PANITERA REPLACEMENT,
ttd.
Wiwik Budi Wasito
