Key Benefits:
VERDICT Number 73 /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 a ruling in the case of Test Number 32 Year Act
2004 on the Local Government, against the Country Basic Law
Republic of Indonesia of 1945, submitted by:
[1.2] Name: Drs. Obednego Depparinding, M.H.
Work: The regent of Mamasa dismissed
Address: Road General Ahmad Yani Number 24 County
Mamasa
In this regard by a Special Power Letter dated July 16, 2012 gives
powers to Pither Ponda Barany, SH., MH and Jonathan, W. S, SH, advocate and a legal consultant to the office of Jonathan WS, SH and Partner, address in Perum PDK The Sari Block Sari Block G Number 6 Tambun South Bekasi, either alone-
alone and together acting for and on behalf of the power-giver;
Next referred to as -------------------------------------------------------------------- Applicant;
[1.3] Reading the applicant's request;
Hearing the applicant;
Read the Government's caption;
Read the statement of the People's Representative Council;
Checking the applicant's evidence;
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2. SITTING LAWSUIT
[2.1] A draw that the applicant has applied with
a letter of application dated July 18, 2012, which is accepted by the Court of Justice
Constitution (subsequently called the Court of Justice) on July 18,
2012, based on the Receipt Receipt of the Number
268 /PAN.MK/ 2012 and noted in the Book Registration Book on
date 24 July 2012 with Number 73 /PUU-X/2012, which has been corrected and
received in the Court of Justice on 24 August 2012, on
instead outlines the following:
I. CONSTITUTION OF THE CONSTITUTIONAL COURT
That Article 24C of the paragraph (1) of the Constitution of 1945 juncto Article 10 of the paragraph (1) letter (a)
Act No. 24 of 2003 on the Constitutional Court.
Article 10 of the paragraph (1), " The Constitutional Court of Law try on the level
first and last that the verdict is final for: a. testing the invite-
invite against the State Basic Law of the Republic of Indonesia Year
1945 " juncto Article 12 paragraph (1) Act No. 4 of 2004 on
The Power of Justice (subsequently called the Justice Act), is wrong one
the authority of the Constitutional Court is conducting an invite-
invite (judicial review) testing against the 1945 Constitution. Article 12 paragraph (1), " The Court
The Constitution of the authorities prosecute at the first and last level which
the verdict is final for: a. test of legislation against the Invite-
Invite Basic State of the Republic of Indonesia in 1945 ".
That under the above provisions, then if there is a provision in
the Act as opposed to the 1945 Constitution, such provision
may be moved to be tested through an Act testing mechanism
in Constitutional Court;
That based on those matters above, then the Constitutional Court
authorities to examine and cut off the application of the Invite-
Invite this.
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II. LEGAL STANDING (LEGAL STANDING) PEMOHON
That under the provisions of Article 51 of the paragraph (1) the MK Act states, " The applicant
is the party that considers the rights and/or its constitutional authority
aggrieved by the expiring legislation, that is:
a. Individual citizens of Indonesia;
b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Republic of the Republic of the Republic
Indonesia that is set in an invitation;
c. public or private legal entities; or institutions country.
Next Explanation of Article 51 of the paragraph (1) Act of MK states, "Which
referred to" constitutional right "is the rights set in
The Constitution of the Republic of Indonesia Year of 1945";
That based on the Constitutional Court Decree No. 006/PUUIII/ 2005
and the Court ' s ruling next, the Court has determined 5
terms of constitutional loss as referred to in Article
51 paragraph (1) of the MK Act, as follows:
a. there must be a right and/or constitutional authority of the applicant that
granted by the 1945 Constitution;
b. such rights and/or constitutional authority are deemed to have been harmed
by the enactment of the testing Act;
c. the rights and/or constitutional authority is specific
and actual, At least it is possible to be a potential that, according to reasoning that
is reasonably certain to occur;
d. there is a causal relationship (causal verband) between rights losses and/or
constitutional authority with a moveed Act
testing; and
e. There is a possibility that with the request of a request, then
the loss of rights and/or the constitutional authority that is postured not
will or shall no longer occur;
That under the provisions of Article 51 of the paragraph (1) of the MK Act, the applicant
included in the category "individual (group of people) citizens
Indonesia", in accordance with the identity of the Population Tag Card, and the capacity
as the Regent Mamasa dismissed by the Minister of the Interior
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date 24 June 2011 letter Number 131-76.486. Accordingly, the applicant
has the qualification as the Undangled Test applicant;
That from the above description, it is clear that the applicant has complied with the quality or
capacity as the Applicant "of the Indonesian citizen" in the United States.
Testing of the Act against the Basic Law of 1945,
as defined in Article 51 of the letter c Invite-Invite Number 24
In 2003 on the Constitutional Court. Accordingly, the applicant has a right
and the legal interest represents the public interest to submit
A testing application of Article 33 of the paragraph (1) Number 32 Year
2004 On the Local Government against the Act The base of 1945.
That under the above provisions, there are two terms that have been
filled with the applicant having a legal standing in the Test case of Invite-
invite. The first term is the qualification to act as the applicant
as described in Article 51 of the paragraph (1) of the MK Act. The second term is
that the applicant ' s rights and/or constitutional authority are harmed by
the enactment of an Act.
III. ABOUT THE SUBJECT OF A REQUEST
That the applicant is an individual of the Indonesian national. The applicant
is the party whose rights and/or its constitutional authority is harmed
by the enactment of Article 33 of the paragraph (1) Act Number 32 of 2004
about the Local Government. The applicant as a citizen who
has a constitutional right and authority to be protected by the
Act. (vide proof P. 1).
That the applicant as a regent was elected to the Regency
Mamasa of West Sulawesi province period 2008-2013, has been appointed and
is sworn in as the Regent of the Mamasa by the Minister's Decree
In Country Number 131,76-662 /2008, August 30, 2008. (vide proof
P. 2).
That the applicant with former member of the DPRD Mamasa regency
Period 2004 s/d 2009 has been charged at Polewali State Court,
The Perkara was snapped up on May 03, 2010 under the case registration
Number 11 /Pid.B/2010, in the ruling Applicant with Para
Other defendants were found to be found not guilty and free of
indictment of the Public Prosecutor. (vide proof P. 3)
5
That is based on the Supreme Court Cassation Number 2440 K
/PID.SUS/2010, dated 17 March 2011, the Applicant with the Defendants
was found guilty and sentenced to death. (vide proof P. 4)
That based on the Supreme Court Cassation Number 2440
K/PID.SUS/2010, dated 17 March 2011, without going through execution by
General Prosecutor, Home Secretary issued a Decision Letter
Termination of the Applicant as the Regent of the Regency Mamasa is based
The Decree of the Minister of Home Affairs Number 131.76-486/2011, dated 24
June 2011. (vide proof P. 5)
That the Home Minister's Decision on the Applicant
as the Regent of Mamasa regency under the Minister's Decree
In Country Number 131.76-486/2011, on 24 June 2011, it is very
premature because it has not been carried out on the execution of such a case by the Attorney
General Prosecutions, as well as the applicant is still applying for an Extraordinary Legal Effort
(Review of Return).
That in the Supreme Court Case Number 2440
K/PID.SUS/2010, dated 17 March 2011, there are 6 (six) members of the DPRD
Mamasa Regency 2009 s/d 2014, further dismissed
membership as Community members of the City of Mamasa Regency are based on
Letter of the Governor of West Sulawesi Province No. 419 of 2011
dated December 29, 2011 on the Pit Stop of the Regency Member State
Mamasa. (vide proof P. 6)
That of the Supreme Court of Justice Number 2440 K/PID.SUS/2010,
dated March 17, 2011, the Defendant Accompanied The Defendants stated
The Extraordinary Legal Effort (review). The Supreme Court cut
in Review Again, as the Supreme Court Decree No.
186 PK/PID.SUS/2011, dated January 18, 2012, the applicant and Para
The defendant was found to be unproven to make a mistake. The applicant and
The defendants were declared free, also rehabilitating and returning
The Occupation of the Defendants as it was originally. (vide proof P. 7)
That after the issuance of the Supreme Court Review
No. 186 PK/PID.SUS/2011, dated 18 January 2012, Ministry
In the State asked Fatwa to the Supreme Court for the Verdict Of Review
Back then. It's the Rehabilitation Position.
6
includes the post. Fatwa MARI Number 019 /KMA/HK.01/III/ 2012 dated 28
February 2012. (vide proof. P. 8)
That based on the Supreme Court Review ' s
Nomor186 PK/PID.SUS/2011, which freed the Defendants. Governor
West Sulawesi Province issued Decree No. 147 of the Year
2012 on March 19, 2012 on the Replacement of 6 (six) members
DPRD County Mamasa was dismissed. (vide proof P. 9)
That the applicant has submitted a Rehabilitation Plea
The applicant as the regent of Mamasa regency, to the Interior Ministry
The country of the Republic of Indonesia, but until now there has not been a realization yet,
with dalil not set in Law No. 32 of 2004 on
Regional Governance (vide proof P. 10).
That opinion senada is also stated in the Court of Tata Effort
The State of Jakarta (vide proof P. 11)
That is very clear and real, existence of Article 33 of the paragraph (1) Act Number 32
Year 2004 of the Local Government as follows:
" The regional head and/or deputy head of the temporarily suspended region
as referred to in Article 30 of the paragraph (1), Section 31 of the paragraph (1), and the Article
32 verses (5) after proceeding through the judicial process are proven to be proven. not guilty
based on the court ruling that has gained the legal power
remains, at least 30 (thirty) the day the President has rehabilitated and
reactivating the head of the region and/or the deputy head of the region
is concerned until the end of the term office ".
That specifically the word phrase:" ... which is temporarily dismissed", is
discriminatory and impeding the political rights and constitutionality rights of citizens
countries, in particular the Regional Head/Deputy Chief of the Region which have been
dismissed (fixed dismissed), in casu The applicant, as well as contradictory
with the soul of the Constitution of 1945, Article 27 paragraph (1), Article 28C paragraph (2), Article 28D paragraph
(1) and paragraph (3), Article 28i paragraph (2) (vide proof P. 12).
That the sounds of the chapters that were made as the test stones in
in the Basic Law of 1945 are:
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Article 27 paragraph (1)
All citizens together are in law and
governance and shall uphold the law and the government with no
there is a adequate.
Section 28D paragraph (1)
Everyone is entitled to confession, assurance, protection, and certainty
fair laws as well as the same treatment before the law.
Section 28D paragraph (3)
Each citizen is entitled to a equal opportunity in
governance.
Article 28I paragraph (2)
Each person is entitled to be free from the discriminatory treatment of
any basis and is entitled to a protection against the treatment
that discriminatory is.
Test Rock Description of Article 27 paragraph (1) of the 1945 Constitution
That if measured by the sound of Article 27 paragraph (1) of the 1945 Constitution, which
confirms: " All citizens are at the same time
the laws and the government and the mandatory uphold its laws and governance
with nothing except ", clearly the norm Article 33 of the paragraph (1) Act Number 32 of the Year
2004 of the Local Government, in a complete redactional structure,
is not inherently in common. The right or position of the citizens in
Law and Governance.
That is essential norm Article 33 paragraph (1) Law Number 32 Year 2004,
distingues between:
-the regional head/vice head of the area suspended temporarily with
that is dismissed (fixed dismissed)
-This section only governs the section chief/deputy head of the area
suspended temporarily, no set about regional Head/deputy
header of the section dismissed (fixed dismissed)
-This article only rehabilitates and reactivates the regional head
and/or the deputy head of the area suspended temporarily, and not
rehabilitate and reactivate the regional head and/or vice
regional head dismissed (fixed dismissed), despite the process
8
The judiciary turns out to be found to be innocent based on the court ruling
that has obtained a fixed legal force.
That the occurrence of discrimination in terms of rehabilitates and activates
returns regional head and/or deputy head of the area dismissed
while with the dismissed (dismissed remain, which) proved
not guilty in a judicial process constitutes an
constitutional violation. As in Article 27 of the paragraph (1) of the 1945 Constitution.
That should also Article 33 paragraph (1) Act No. 32 of 2004
provide a Constitutional protection against regional heads and/or
the deputy head of the area dismissed (fixed dismissed), which is proven
not guilty by a law-strong judicial ruling
and/or final.
That Article 33 paragraph (1) Act No. 32 of 2004 does not provide
equal standing against the regional head and/or deputy head of the region
that temporarily suspended and dismissed (dismissed). Because
there is no equal position in the law, it is inherently also
there is discrimination in government. Regional head and/or deputy
the head of the area suspended while still being rehabilitated and
is reactivated. Whereas the head of the area and/or the deputy head of the area
that is dismissed (dismissed) there are no rules. While
Article 27 paragraph (1) of the 1945 Constitution states "... is required to uphold the law and
the government with nothing but".
Rock Description Article 28D paragraph (1) UUD 1945
That if the benchmark is Article 28D paragraph (1) UUD 1945 that
confirms, " each person is entitled to the recognition, warranty, protection,
and fair legal certainty as well as the same treatment in front of the law",
then the sound of Article 33 of the paragraph (1) Act No. 32 of 2004 on
The Local Government, In contrast to the principles of warranty,
fair protection and legal certainty.
That regarding legal uncertainty over a judicial decree that
has had a legal force may be filed an External Legal Effort. Regular
(ReReview). Extraordinary Legal efforts are made because in
a judicial ruling that has a fixed legal force, still exists
9
The possibility of a Judge's right to decide and not
reapply the sense of justice.
That Review is to apply the principle of justice to
the imposition of the principle of legal certainty, by the because it was a review
oriented toward the demands of justice. The verdict of the Judge is the work of man
who did not escape the judgment of the Judge humanely. The function of the Court
the Great in the Court of Review Review is to hold a correction
last against a Court ruling that contains injustice due to
the faults and peculaaryness of the Judges. Therefore, even if the link
Review Returns is solely based on terms and considerations
the law but its purpose is for the sake of justice for the penal.
That the extraordinary legal efforts of the oppressors return as an attempt The seeker
justice for the first-degree trial or the Court-level
appeal (judex factie) and the Supreme Court ruling (judex juris) which have been
The strength remains raw again. Review links are an attempt
An extraordinary law against a ruling that has a fixed legal force,
also contains the meaning of an ecsequtorial power.
That Section 24 of the paragraph (1) Act No. 48 of the Year 2009, determines
that against a Court ruling that has gained the legal power
remains, the parties concerned can submit a review
to the Supreme Court, if there are any particular matters or circumstances
is specified in the Act.
in Article 263's/d 269 Act No. 8 of 1981 on
The Law of the Criminal Event.
That the correction to the ruling that has had the legal power
remains, it is not true against the juridical phenomena that are targeted,
but a correction to justice arising from a ruling that has been
has the power of the law. Based on this view,
is not wrong in a review ruling again considering the factors
the justice of the ruling has a fixed legal force.
That with the ruling Supreme Court ruling Number 186
PK/PID.SUS/2011, dated January 18, 2012, which aborted the termination
Cassation of the Supreme Court Number 2440 K/PID.SUS/2010, dated 17 March
2011, which decided the applicant and the Defendants were declared not
10
The evidence does make a mistake. The applicant and the Defendants are declared
free, also rehabilitating and restore the Defendants ' Occupation
as it was originally. (vide proof P. 7).
That based on the Supreme Court Review Act (proof
P. 7) The applicant has got a legal recognition "not found guilty" and
legal guarantee " to rehabilitate and restore the position
"Applicant" (as Regent Mamasa). However, Article 33 of the paragraph (1)Law No. 32 of 2004 on Local Government, does not provide
legal certainty and equal treatment in front of the law, over
execution of the Supreme Court Review Act
That.
That absence of legal certainty and equal treatment in advance
the law against the applicant, because of Article 33 of the paragraph (1) Act Number 32 of the Year
2004 on the Local Government only governs, regional heads and/or
representatives the head of the area suspended temporarily, then the constitutional right
The applicant given under Article 28D paragraph (1) of the 1945 Constitution, is not
fulfilled and/or violated because it has been terminated.
That if it is disanded Article 28D paragraph (1) UUD 1945 with Article 33 of the paragraph
(1) Law No. 32 Year 2004 on County Government, then Article 33
paragraph (1) Act No. 32 of 2004 is contrary to the 1945 Constitution
to the extent that it is not understood: " section heads and/or regional vice heads
suspended temporarily and/or dismissed (dismissed remain)
as referred to in Article 30 of the paragraph (1), Section 31 of the paragraph (1), and the Article
32 paragraph (5) after going through the judicial process it turned out to be found not guilty
based on the court ruling that has gained the power of the law
remains and/or final, at least 30 (thirty) the day the President has
rehabilitate and reactivate the regional head and/or vice
The head of the area concerned until the end of his term".
The Rock Description Article 28D paragraph (3) of the 1945 Constitution
That if its decline Article 28D paragraph (3) of the 1945 Constitution, which confirms
" any citizen of the country entitled to obtain a similar opportunity in
government ", then the sounds of Article 33 paragraph (1) Act No. 32 of 2004
On the Local Government, obstructing the applicant as a citizen
to obtain the opportunity occupying an executive position in
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the government as the Count of Mamasa, as it does not set about "Head
area and/or regional vice principal" dismissed (dismissed
remain) ".
That links with no clear Article 33 paragraph (1) Law No. 32
2004, regarding the head of the area and/or the deputy head of the region
dismissed (fixed dismissed), but is not found guilty by
a law-strong court ruling remains, Therefore, the rights and
of the Constitutional Authority are deeply harmed. Rights losses and
the constitutional authority of the applicant is actual and real, as it is not
rehabilitated and returned to the position as the Regent
Mamasa. This is based on the Supreme Court Review ' s
(proof P. 7).
That if connected to the Retrial Ruling (proof of P. 7)
with Article 28D paragraph (3) of the 1945 Constitution, then the applicant as a citizen
deserves a chance to re-occupy the office of the regent of Mamasa.
The second sync is evident in the Conceptual Section 28D paragraph (3) of the UUD
1945 with the Petitum Verdict Review of the Supreme Court (proof
P. 7) which rehabilitates and returns the applicant's position as
originally " (as The Regent Of Mamasa).
That Article 33 paragraph (1) Act No. 32 of 2004 on Governance
Regions as follows:
" The regional head and/or deputy head of the temporarily suspended region
as referred to in Article 30 of the paragraph (1), Section 31 of the paragraph (1), and the Article
32 verses (5) after proceeding through the judicial process are proven to be proven. not guilty
based on the court ruling that has gained the legal power
remains, at least 30 (thirty) the day the President has rehabilitated and
reactivating the head of the region and/or the deputy head of the region
is concerned until the end of the term his post ".
That the core of the rehabilitated and reappointed" regional head and/or
deputy head of the area dismissed while is the one who has been after
through the judicial process turns out to be no guilty based on verdict
the court obtained a fixed legal force. Therefore against
the regional chief and/or deputy head of the area dismissed
(fixed dismissed) after going through the judicial process proved to be not
12
guilty based on court rulings obtaining a fixed legal force,
based on the constitutional rights of citizens, it is mandatory for
rehabilitated and reactivated the head of the area and/or deputy chief
the area concerned until the end of his term.
That norm Article 33 paragraph (1) Act No. 32 of 2004 is after
through the judicial process turns out to be found not guilty based on the verdict
court The power of the law remains As it is either the Head
area and/or the deputy head of the area suspended temporarily and/or
dismissed (fixed dismissed), if after going through the judicial process
turns out to be found not guilty based on the court ruling gained
the power of the law remains, then the rehabilitation and reactivation apply
as the regional head and/or deputy head of the area until the end of the term
in office.
That if there is a section 28D paragraph (3) of the Constitution of 1945 with Article 33 of the paragraph
(1) Law No. 32 of 2004 on the Local Government, then Article 33
paragraph (1) Act No. 32 of 2004 is contrary to the 1945 Constitution
to the extent Not specified: " Head of section and/or regional deputy who
suspended temporarily and/or dismissed (dismissed remain)
as referred to in Section 30 of the paragraph (1), Section 31 of the paragraph (1), and the Article
32 verses (5) after going through the judicial process turned out to be found not guilty
based on the court ruling that has obtained the legal power
fixed and/or final, at least 30 (thirty) the President's day has
Rehabilitates and reactivates the head of the region and/or vice
the head of the area concerned until the end of his term ".
The Test Stone Description Article 28I paragraph (2) of the 1945 Constitution:
Everyone is entitled to be free of any discriminatory treatment of
any basis and entitled to obtain protection against the treatment
that is discriminatory It is.
That the general treatment of Article 33 of the paragraph (1) Act No. 32 of the Year
2004 as long as the phrase phrase "....dismissed while",
is discriminatory and impeding political rights and rights
constitutionality of the citizens, in particular the Regional Head/Deputy Head
The area that have been dismissed (fixed dismissed), in casu Pemapplicant,
towards the head of the district/deputy head of the area dismissed.
13
That Section 33 of the paragraph (1) Act No. 32 of 2004 laid out discrimination
the law against the head of the region and/or the deputy head of the area, which after
through the judicial process turned out to be found not guilty based on verdict
the court obtained a fixed legal force, between the dismissed
while with the dismissed (dismissed fixed). Restrictions
rehabilitation and reactivation only on regional head and/or deputy
head of the area temporarily dismissed, causing consequences
The presence of distinction is treated by the State against the Applicant as a Regent
The dismissed (dismissed remains) are found to be not
guilty, thus not being seated equally in the law
and governance or discrimination.
That Discrimination of the laws is becoming more clear if section 33
paragraph (1) Law Number 32 Year 2004 with The decision of Governor of the Province
West Sulawesi No. 147 of 2012 dated 19 March 2012 (proof of P. 9)
which rehabilitated and reactivated the members of the District Council
Mamasa based on the Supreme Court's Retrial Act (proof
P. 7). The applicant and member of the DPRD Mamasa regency, equally
are dismissed from the respective positions on the basis of the Cassation
Supreme Court (evidence P. 4).
That it is not rehabilitated and redeactivated the applicant as
The Count of Mamasa because of Article 33 of the paragraph (1) Act No. 32 of 2004 only
set the regional head and/or deputy head of the area dismissed
Temporal. Thus the rights and constitutional authority of the applicant
are very disadvantaged. The loss of the rights and constitutional authority of the applicant
is actual and real, as it is not rehabilitated and returned to the position
as originally as the regent of Mamasa.
That for that Section 33 paragraph (1) Act No. 32 of 2004 about
Local government, the concept should be held more fairly, because not
protecting the constitutional rights and authority of the applicant as head
the area that has been dismissed (diactically fixed), it is declared not to be
proved guilty by the Supreme Court Review ' s decision.
Even a decision that orders to rehabilitate the position and
the dignity of the applicant cannot be implemented, due to the provisions of this section
14
does not set the head of the dismissed section fixed, but only that
is temporarily dismissed.
That the State through the state device, should have the authority
in providing rehabilitation and restoration of the position as
order of a fixed law with a fixed legal force, against the Head
Section/Deputy Chief of the Area that is suspended remain, but is not proven
guilty in accordance with the Court Decision which has power
the law remains. By means of a conceptional interpretation of
Article 33 of the paragraph (1) Act No. 32 of 2004 On the Local Government,
for the Regional Chief/Deputy Chief of the Regions dismissed (dismissed
fixed), but not proven Guilty of a Court Decision which
has the power of the law to remain rehabilitated and reactivated
as Regional Head/Deputy Chief.
That based on those things above are highly based law
to protect the constitutional rights and authority of the applicant. The applicant
must be rehabilitated and returned in the position of the Regent
Mamasa and all its existence as a protected citizen
by the Act.
IV. PETITUM
Based on the above application, with regard to Section 56
paragraph (2), paragraph (3), and Article 57 of the paragraph (1) Act No. 24 of 2003, the applicant
implores the Constitutional Court to please decide this case, with
The verdict is as follows:
1. Receive the requiver test request for the applicant;
2. Stating Article 33 of the paragraph (1) Act No. 32 of 2004 contradictory
with the Constitution of 1945 as long as it is not defined: " regional head and/or
the deputy head of the area suspended temporarily and/or dismissed
(fixed dismissed) as referred to in Section 30 of the paragraph (1),
Article 31 of the paragraph (1), and Article 32 of the paragraph (5) after going through the judicial process
turns out to be found not guilty based on the court ruling that has been
obtain a fixed legal force and/or final, at least 30 (three
the day the President has rehabilitate and reactivates
the regional head and/or the deputy head of the area concerned until
with the end of his term".
15
3. Stating that Section 33 paragraph charge matter (1) Act No. 32 of the Year
2004 on the Regional Government is meant to have no power
binding laws, as long as it is not defined: " regional head and/or representative
Temporary dissection and/or dismissed
(dismissed remain) as referred to in Section 30 paragraph (1),
Section 31 of the paragraph (1), and Article 32 of the paragraph (5) after going through the judicial process
turns out to be found not guilty based on the court ruling that has
obtain a fixed legal force and/or final, at least 30 (three
the day the President has rehabilitated and reactivated
the head of the region and/or the deputy head of the area concerned until
with the end of his term ".
Or;
Please be justice that is fair (ex aequo et bono).
[2.2] weighed that in order to prove its control, the applicant
submitted the letter/writing tool that was given a proof of P-1 proof up to
proof of P-12, as follows:
1. Proof P- 1: Photocopy Card Mark Pendka (KTP) on behalf of Drs. Obed
Nego Depparinding, MH;
2. Evidence P- 2: Photocopy Letter of Appointment of Bupati Mamasa
Period of 2008-2013 on the name of Drs. Obed Nego
Depparinding, MH, with the Ministerial Decree in
Negeri Number 131,76-662 2008, date 30 August
2008;
3. Evidence P-3: Photocopy of the Polewali Court Decree Number
11 /Pid.B/ 2010 dated 3 May 2010 released Former
Member of the DPRD Mamasa 2004-2009; (Physical evidence is not
there)
4. Evidence P-4: Photocopy of the Supreme Court Cassation Number
2440K/Pid.Sus/2010, dated 17 March 2011, Law
Former Member of the DPRD Mamasa period 2004-2009;
5. Evidence P- 5: Photocopy Letter of the Interior Minister Number 131.76-
486 of 2011, on June 24, 2011, about
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Dismissed Drs. Obed Nego Depparinding, MH as
Bupati Mamasa Period 2008-2013;
6. Evidence P-6: Photocopy of the Governor of West Sulawesi's Decree Number
419 Year 2011, on December 29, 2011, about
Disdone 6 (six) Former Member of the District Council
Mamasa 2004-2009 on the Expiration Of The Court
Agung Number 2440K/Pid.Sus/2010;
7. Evidence P-7: Photocopy of the Supreme Court Review Letter
186PK/Pid.Sus/2011, January 18, 2011, about
Liberating 24 (twenty-four) Former Member of DPRD
Mamasa Regency 2004-2009;
8. Evidence P-8: Photocopy of the Interior Minister's fatwa Letter
Number 180 /350/SJ, February 3, 2012, Fatwa Answer
Supreme Court Chief Number 019 /KMA/HK.01/11/2012,
dated 28 February 2012;
9. Evidence P-9: Photocopy of the Governor of West Sulawesi's Decree Number
147 of 2012, on March 19, 2012, about lifting
Back 6 (six) Former Member of the Regency of Mamasa Regency
Period 2004-2009 over the Verdict Review Return
Supreme Court Number 186PK/Pid.Sus/2012, dated 18
January 2012;
10. Evidence P-10: Photocopy of the National Security Council Letter Number M-06/
Sesjen/111/2012, March 21, 2012 to be delivered
to the President of the Republic of Indonesia Through the Minister
The Secretary of State with the Surgeon Number B 372 /M. Sesneg/
D. 1/DK.00.01 /04/2012, dated 10 April 2012;
11. Proof P-11: Photocopy of the Court of Justice of the State of State Jakarta
number 46 /G/2012/PTUN-JKT, on 28 June 2012;
12. Evidence P-12: Photocopy Judicial Review Article 33 paragraph (1) Act
Number 32 Year 2004.
17
In addition, the applicant submitted a witness who has been heard
his interest in the September 13, 2012 trial, at its core
as follows:
Oentarto Saries Mawardi
The Witness's witness, is the Director General of Regional Autonomy following the formation
legislation that is being moed up testing;
First of the First, Act-making process 32 Year 2004
which concerns the material it is being honed for. Article 31 of the paragraph (1) Invite-
Invite Number 32 Year 2004 is not formulated complete,
in the sense that the arrangement regarding its relation to the legislation
reappointment or rehabilitation in the review, is set in
in the Penal Code of PK. So PK although
the process or earlier it was established has a fixed law,
as at the State Court level, the High Court even on
the Supreme Court level, but on the review process that In this
done by the Supreme Court is decided on another, then the talkless units
it must follow what has been decided by the Supreme Court decision
the Supreme already has the power of the law fixed.
The second one. As such, we do not reflect,
formulate a complete set of sentences to express that
citizens have the same position in government law
nor in the law themselves;
The Speaker of the House of Thought is subject to the governing provisions regarding the KUHAP,
in particular regarding what is called in the constitutional decree,
the plea decision for review or PK review. Because PK
is decided to be reviewed or rehabilitated, all institutions must submit
on that. If otherwise to carry out, it must be implemented. That
gets a mutual agreement between the Government and the House;
the view that all institutions are obedient to the implementation of regulations or provisions
the rules of the invitation in this Act stipulating
regarding PK, if not implemented there must be another act of action
especially let alone in that practice there are the same cases but got
different treatment. In a sense there is such a Bupati Mamasa in time
briefly dismissed, but there are other bustares regent, other bustares are not
18
I mentioned it was re-positioned again. So this is in this
indeed, it does not do a similar legal position in
within the law and in the government;
The formulation of the Act is not completely detailing or
express the provisions of that law, but are subject to the rules
the other perinvitations. The mechanical process is thus correct;
The witness at the time of the witness has never taken a decision that
not yet complete the legal process until the PK level does not
determine the new official except the one Last time was an official
Temporal. Because it anticipates perhaps PK he is won, meaning
in accordance with what he wants to do so easily;
The witness has never proposed or changed the head of the area, whether
not the mayor, nor the governor. For those who have experienced such events
that, for the serta-merta was replaced;
The following after facing this kind of case, in fact, if you want to be careful,
acknowledge his guilt or his misdeeds because it's considered wrong or
erroneously, it could return the right to sit back through
The political mechanism, which is the House. The group, the group, is also the same, that
called the regent that was dismissed from the Golkar Party,
then the Golkar was raised even though the level was not as strong as
was replaced, but it was the same. Well, actually, if you want to be taken care of for family, it could be
But there are other ways, for example, in anticipation of which
The applicant that the legal status of the Act or Article 33 is stated
contrary to the Basic Law is not necessary
contradictory, but not expressing fully legal status.
So it could be revisited or refined the Act, either
through additional verse and additional sections;
[2.3] A draw that against the applicant's plea, The government has
submitted a written caption without a date, in October 2012 received
in the Court of Justice on November 7, 2012, which at its point
as follows:
19
I. Subject
1. That according to the applicant, the provisions of Article 33 of the paragraph (1) Act No. 32
2004 of the Local Government, in particular the phrase "... which
dismissed while ..." are discriminatory and impeding the right-
political rights and the constitutional right of the applicant.
2. That in the opinion of the applicant, the existence of Article 33 of the paragraph (1)
Act No. 32 of 2004 on the Local Government
should have the authority in rehabilitating and restoring
the position as the ruling order the legal force
remains for the Regional Chief/Deputy Chief terminated
remains, but is not found guilty as to the court decision which
has the legal power to remain rehabilitated and activated
return as Regional Head/Deputy Regional Head.
3. In short according to the Applicant Article 33 paragraph (1) Act
Number 32 of 2004 on the Government of the Regions contradictory
with Article 18, Article 27, Section 28C, Section 28D and Section 281
The Constitution of the Republic of State 1945-1945.
II. About Legal Standing (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
with Act Number 8 of the Year 2011, stating that
The applicant is a party that considers the right and rights of authority
its constitutionality is harmed by the enactment of the law, that is
a. Individual citizens of Indonesia;
b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Unity State
The Republic of Indonesia that is governed in the promulcity;
c. the public or private legal entity; or
d. State agencies.
The above provisions are expressed in its explanation, that what
with "constitutional rights" is the rights set in the Invite-
20
Invite the Basic State of the Republic of Indonesia in 1945, then first
first must explain and prove:
a. Qualify for the a quo as described in
Article 51 of the paragraph (1) of the Law No. 24 of 2003 on
Constitutional Court;
b. The rights and/or its constitutional authority in the qualifying referred to
which are considered to have been harmed by the enactment of the
test;
c. Rights and/or constitutional authority of the applicant as
as a result of the enactment of the Act, which is the subject of testing.
Further the Constitutional Court has provided an understanding and
cumulative limitations on the loss of rights and/or authority
constitutionality arising from the enactment of a law
according to Article 51 of the paragraph (1) Act No. 24 of 2003 on
The Constitutional Court (vide Putermination Number 0061PUU-111/2005 and
Next verdict), must meet 5 (five) terms:
a. the constitutional right of the applicant given by Invite-
Invite the Basic State of the Republic of Indonesia in 1945;
b. that the applicant ' s constitutional right is considered by the applicant
has been harmed by an Act that is tested;
c. that the intended constitutional loss is specific
(special) and actual or at least potentially a potential that
reasonable reasoning can be certain to occur;
d. Due (causal verband) between the loss and
the enactment of the Act is moveed to be tested;
e. It is possible that by the request of a request then
the constitutional loss postured will not or no longer occur.
Over those things above, may the need be questioned the interests of the
applicant whether it is appropriate as a party that considers the right
and/or its constitutional authority is harmed over it
provisions of Article 33 of the paragraph (1) Act No. 32 of 2004 on
Government Regional Government submitted fully to Yang
Noble Chairman/Assembly of the Constitution of the Constitution for considering and
assess whether the petitioners have a legal position (legal
21
standing) or not, as defined by Article 51 of the paragraph (1)
Act No. 24 of 2003 on the Constitutional Court
as amended by Act No. 8 of 2011
and based on previous Constitutional Court rulings
(vide Putermination Number 006/PUU-111/2005 and Putermination Number 11 /PUU-
V/2007).
III. About the Test Materials Act No. 32 of 2004 on the Local Government.
Against the provisions of Article 33 of the paragraph (1) Act No. 32 of the Year
2004 on the Local Government deemed to be contrary to
The Basic Law of the Republic of Indonesia Year of 1945,
The government can convey an explanation as follows:
1. That before the Government elaborates on further, the Government wants
recalling that the Constitutional Court has granted
a ruling on the case, the applicant and the object of the similar request
that is regarding the dismissal While at the Perkara Number 85 /PUU-
IX/2011 with the amar verdict stated "Applicant Plea
Not Acceptable"
That against the charge material of the verse, section, and/or section
The legislation has been tested, not can be moored for testing
return, except for other reasons or different (vide Article 60 of the Law
MK, Article 42 of the Constitutional Court Rules Number 06 /PMK/2005
on the Guidelines of Event in the Test Perkara Act);
That the Government does not see any other or different reason between
A request in Perkara Number 85 /PUU-IX/2011 for the reason
submitted by the applicant in the a quo.
Based on those considerations then according to the Government
the applicant ' s request to test the constitutionality of the articles
a quo should be declared ne bis in idem;
2. That the temporary dismissal of the Regional Head and/or Vice
The Regional Head is in order to keep the law and
equality in advance (equality before the law), so that the apparatus
law enforcement (in particular Judge) no difficulty in checking,
prosecute and severing the criminal case. because on the one hand
22
by being discharged while the local government performance is not
interrupted with section head status as a suspect or
the accused, and on the other side of course the right of the regional head over the pre-
asas
Not guilty remains guaranteed in the running legal process.
It does not contradive any person ' s right
over "the equality of the law and governance" as well as the right
over " the same treatment in the the front of the law "and" legal certainty
the fair ";
3. That arrangement regarding the Pit Stop of the Regional Head and Vice
The Head of the Regions is set in the fourth paragraph of Article 29 to the
Article 35 of the Act of 32 Year 2004. That Section 33 of the Law No. 32 of the Year
2004 states that:
(1) " The Regional Head and/or deputy head of the area dismissed
while referred to Section 30 of the paragraph (1), Section 31 of the paragraph (1),
and the Article 32 verses (5) after going through the judicial process proved
not guilty based on the court ruling that has gained
the power of the law remains, at least 30 (thirty) the day the President has
rehabilitate and reactivate to the area and/or
vice the head of the area concerned until the end of the term
office;
According to the Government provisions Article 33 paragraph (1) Act Number 32 of the Year
2004 is the norm that governs further the provisions of Article 30
paragraph (1), Section 31 of the paragraph (1), and Article 32 of the paragraph (5) of the dismissal
while the Regional Head and/or deputy head of the region in the event:
the case commits a criminal offence of criminal charges
at least 5 (five) year or more based on the verdict
the court;
the person is charged committing a criminal corruption, terrorism criminal,
makar, and/or criminal conduct against State Security;
. . short 5 (five) years or more
based on the court ruling that be/um obtain the power
the law remains as referred to paragraph (3), DPRD
proposes a temporary stop with a decision DPRD;
23
Which if regional and/or Regional Deputy Chief turns out
after going through the judicial process is shown to be not guilty
based on the court ruling that has gained the power
the law remains, The slowest 30 (thirty) days the President has
rehabilitates and reactivates the Regional Head and/or
The Vice Chief of the Regions concerned. The a quo provision has instead been
providing legal protection and legal certainty to
the regional head and/or regional deputy.
4. That related stops while regional head and deputy head
area, the Constitutional Court in its verdict Number 024 /PUU-
111/2005 dated March 29, 2006. The one on the sitir back in
Putermination No. 53 /PUU-VIII/2010 dated April 6, 2011, in
a legal consideration of the ruling a quo, the Court stated that:
a. Dalil who quantified the temporary dismissal of the same
with punishment in the sense of criminal law, which with
the way was then built construction of thought that
temporary dismissal contradicts the asas praduga not
guilty, is not appropriate;
b. The temporary stop is precisely the principle of the equation
or the equality before the law as referred to by
Article 27 of the paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution;
c. It is not appropriate that the temporary dismissal of the title of Regent
is said to be discriminatory by comparing it to
with public officials or other parties in different qualifications
and is governed by the Act. different;
d. Article a quo also provides certainty in his post as
regent due to the temporary stop
there is no impediment to the work of the legal process
indictments intended for the cause.
has lost the possibility
through his post, can block or impede
judicial process (obstruction of justice) so that the court ruling
that has a fixed legal force (inkracht van gewijsde) can
more quickly be acquired;
24
So that according to the Government arrangements regarding the dismissal
while the regional chief and deputy head of the area are the norm
that is constitutional and does not conflict with the 1945 Constitution.
5. Whereas in relation to the provisions of Article 33 of the paragraph (1) Act 32 of 2004,
The Constitutional Court in its Decree No. 85 /PUU-IX/2011
is dated March 27, 2011. in consideration of the ruling law a quo,
The court stated that:
To draw that regarding the constitutionality testing of Article 33 of the paragraph
(1) Act 32/2004 juncto Act 12/2008, which according to the applicant of the phrase " ...
based on the court ruling that has gained strength
the law Stay ... " which according to the applicant is contrary to the Constitution
1945 if not coupled with the phrase "including the free verdict".
According to the Court, a ruling that has gained the power
the law remains, hams were implemented. As for which issues
means a ruling that gains a fixed legal power and must
be executed or executed, whether any ruling no longer exists
The legal efforts can be taken, or including a free ruling, or
a ruling that although there is still a legal attempt, it will be but
The extraordinary legal effort, already executable, or all of it
awaits a new re-action ruling executed, it is
the problem of applying the law, not the problem the norm constitutionality.
Based on that explanation above then relates to
the execution of a ruling that has a legal force
remains (cassation) remains to be implemented. As for the issue which
referred to a ruling that gains a fixed legal force and
must be exercised or executed, it is related to
the implementation of the norm and not the constitutionality issue of a norm, more
continued the applicant has also submitted the applicant ' s experience
to PTUN
6. That the applicant in his application requested that the Court
The Constitution states Article 33 of the paragraph (1) Act 32/2004 contradictory
with the Constitution of 1945 as long as it is not understood: " Regional Chief and/or
The Deputy Chief of the Regions dismissed temporary and/or
dismissed fixed by Government despite a fixed stop
25
the regional head and/or regional deputy is not set explicitly
in Act 32/2004 but which in intent with a fixed stop
is if the regional head and/or deputy head of the area dies
the world, at its own request and has ended the term of office.
IV. Conclusion
Based on that explanation above, the Government pleads to
The Speaker of the Assembly of Justice of the Constitutional Court is examining, prosecuting and
severing the application of Act No. 32 of 2004
about the Regional Government against the Country Basic Law
The Republic of Indonesia in 1945, it may be possible to give the verdict
as follows:
1. Rejecting the applicant 's testing request for the whole or
at least stated the applicant' s testing request was not
acceptable (niet ontvankelijk verklaard);
2. Accept the Government Description as a whole;
3. Stating that the provisions in Article 33 of the paragraph (1) of the Act
Number 32 of 2004 on the Local Government are not contradictory
with Article 18, Article 27, Section 28C, Section 28D and Section 281
The Basic Law of the State Republic of Indonesia in 1945
[2.4] weighed that against the request of the applicant, the House of Representatives
People (DPR) submitted a written caption without date, in September
2012, which was accepted in the Court of Justice on October 2, 2012,
that is in the following list:
A. The provisions of the Pemda Act, which were called Test Against the Basic Law of the Republic of Indonesia in 1945
The applicant in the plea a quo submitted the testing of Article 33 of the paragraph
(1) the Pemda Act which reads as follows -I
" The regional head and/or deputy head of the temporarily suspended region
as referred to in Article 30 of the paragraph (1), Section 31 of the paragraph (1), and the Article
32 verses (5) after proceeding through the judicial process are proven to be proven. not guilty
based on the court ruling that has gained the legal power
26
remains, at least 30 (thirty) the day the President has rehabilitated and
reactivates the regional head and/or vice head of the region
is concerned until the end of his term "
B. The Rights And/Or Constitutional Authority Deemed The Applicant Has Been Harmed By The Enactment Of Article 33 Of Paragraph (1) The Act of Pemda
The applicant in the plea a quo, posits that the right
its constitution has been harmed and violated. by the enactment of Article 33 of the paragraph
(1) the Pemda Act with a dalil that is at its point as follows:
1. That the existence of Article 33 of the paragraph (1) of the Pemda Act in particular the phrase "that
dismissed while" is discriminatory and impedes the rights
of the political and constitutional rights of citizens in particular the head of the region/representative
section heads that have been dismissed remain in casu Pemapplicant. (vide
page 8 Plea a quo).
2. That the occurrence of discrimination in terms of rehabilitating and activating
returns the regional head/deputy head of the area temporarily dismissed
with the dismissed remains a constitutional violation
as a result guaranteed in Article 27 of the paragraph (1) of the 1945 Constitution. According to
The applicant Section 33 of the paragraph (1) the Pemda Act does not provide a position that
equal to the head of the section/vice head of the area dismissed
while with the terminated fixed (vide page 10 Plea
a " quo).
3. That under the description of the provisions of Article 33 of the paragraph (1) the Act of Pemda,
is considered to violate the rights of the constitution and the rights of the applicant, and
contrary to the provisions of Article 27 of the paragraph (1), Section 28D paragraph (1) and paragraph (3),
as well as Article 28I of the paragraph (2) UUD 1945, which reads as follows:
a. Article 27 paragraph (1) "All citizens are subject to both in law and
governance and shall uphold the law and governance
with no exception".
b. Section 28D paragraph (1) and paragraph (3) (1) Each person is entitled to the recognition, warranty, protection, and
fair legal certainty as well as the same treatment before
the law.
27
(3) Each citizen is entitled to a similar opportunity
within the government
c. Section 28I paragraph (2) "Everyone is entitled to be free from the discriminatory treatment
on any basis and the right to be entitled to protection against
that discriminatory treatment."
C. Representative of the Republic of Indonesia
Against the Applicant Proposition as described in the a
quo, DPR in the delivery of his views first outlined
regarding legal standing (legal standing) can be described as follows:
1. Legal standing (legal standing) Applicant
Qualifying to be fulfilled by the applicant as a party is set
in the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003 on
Constitutional Court (next The Constitutional Court Act),
which states that " The applicant is a party that considers the right
and/or its constitutional authority is harmed by the expiring invite-
invite, i.e.
a. Individual citizen of Indonesia;
b. the unity of 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 is set in undra;
c. public legal entity or Private; or
d. state agencies. "
The rights and/or constitutional authority referred to the provisions of Article
51 paragraph (1), are expressly set forth in its explanation, that "that
referred to as" constitutional right " is the rights set in
The Basic Law of the Republic of Indonesia Year of 1945. "
The explanation of Article 51 of the paragraph (1) this affirm, that only rights
is explicitly set in the Constitution of 1945 alone which includes "rights
constitutional".
Therefore, according to the Constitution of the Constitution, in order for the a person or
a party may be accepted as the applicant who has a position
law (legal standing) in the Act of testing
28
against UUD 1945, then first must explain and
prove:
a. Qualify as the applicant in the a quo
as referred to in Article 51 of the paragraph (1) Act Number
24 of 2003 on 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 enactment of the Act.
Regarding the constitutional loss parameters, the Constitutional Court has
provides an understanding and limitation on constitutional losses that
arising out of the enactment of an Act must meet 5 (five)
terms (vide Putermination Number 006 /PUU-III/2005 and Number 011 /PUU-V/2007)
that is the following:
a. the rights and/or constitutional authority of the applicant
provided by UUD 1945;
b. that the permissions and/or constitutional authority of the applicant
are considered by the applicant to be harmed by a law that
is tested;
c. that the constitutional rights and/or constitutional authority of the applicant
in question Specific (special) and actual or at least
potential that the reasonable reasoning can be assured
will occur;
d. Due to (causal verband) between the loss and
enactment of the legislation that is being moveed;
e. It is possible that with the request of the request then
the loss and/or constitutional authority postured will not be
or no longer occurs.
If all five terms are not met by the applicant in the The case
testing the a quo Act, then the applicant has no qualifications
legal standing (legal standing) as the Applicant.
Responded to the applicant a quo, the House of view that
The applicant must be able to prove beforehand whether it is true
The applicant as parties that regard the right and/or authority
29
its constitutionality was harmed over the expiring provisions
to be tested, in particular in contesting the loss of
the rights and/or its constitutionality authority as an impact of
-provided the required provisions to be tested.
Against that legal position (legal standing), the House submitted
fully to the Chairman/Assembly of the Supreme Constitutional Court of Justice
to consider and judge whether the applicant has
legal position (legal standing ) or not as provided by
Article 51 of the paragraph (1) of the Constitutional Court and
based on the Constitutional Court Number 006 /PUU-III/2005 and
Number 011 /PUU-V/2007.
2. Testing of the Pemda Act
Against the views of the applicant in the testing of Article 33 of the paragraph
(1) the Act of Pemda, the House of Representatives provides the following:
1) That the passage of Article 1 of the paragraph (3) of the 1945 Constitution mandates
The country Indonesia is a state of law, so in
holding state and government should certainly be in line
with the principles of state law that is one must
based on laws as law
positive. Based on the provisions of Article 1 of the paragraph (3) of the Constitution of 1945
, then in the holding of the local government
the constitutional must be based on Article 18 of the Constitution of 1945.
2) That the holding of the Local Government is set up in BAB VI,
Article 18 of the paragraph (1) of the 1945 Constitution which states that " Country
The Republic of Indonesia is divided over the provinces and
the area The province is divided into counties and cities, all of which are
provinces, districts/cities have regional governments
governed by law ", furthermore provisions regarding Head
Regions are set in Article 18 of the paragraph (4) of the 1945 Constitution which states
"The governor, regent, and mayor" each as a head
government of provincial, county, and city governments selected
democratic ". The provisions of the holding of local government
are further regulated by the legislation as Mandated
30
Article 18 paragraph (7) of the 1945 Constitution, which reads "arrangement and layout
the holding of local government is governed by law".
3) That the provisions of Article 1 paragraph (2) and paragraph (3) and Article 18 of the 1945 Constitution
it is a constitutional basis to form the Invite-
Invite Number 32 Year 2004 on Local Government
as it has been was amended by Act No. 12 of the Year
2008, in which it set the provisions regarding the Stop
Regional Head and Regional Deputy Chief.
4) That on the basis of that constitutional basis, the House of Representatives was in view
provisions of the a quo Act related to the provisions
stop while against regional head/section heads
that is caught in criminal as set in Section 30 paragraph
(1), Article 31 of the paragraph (1) and the provisions regarding rehabilitation as well as
return to Kada/Wakada yang temporarily dismissed
if specified found not guilty based on the verdict
the court which has obtained the legal force remains as
is set in Article 33 of the paragraph (1) the Pemda Act is in order
organizes an area government that corresponds to the principle
the legal state that the constitution of the Constitution of 1945 and the principles of good
and clean governant in the holding of state government.
5) That the House of Representatives view a temporary stop provision for
any state officials/public officials are appropriate settings
and proportionate, to maintain a positive image of
institution and public office, so that the performance of the institution which
is concerned is not interrupted by suspect status of a head
area/deputy head of the area.
6) That against the provisions of the dismissal while the head of the area
and/or representative to the area, the Constitutional Court in the Putermination
No. 024 /PUU-III/2005 pages 39 and 40, have argued that
The temporary Pit Stop is as set in Article 31 of the paragraph (1)
The Act of Pemda is the realization of the principle of equality or
derision in the presence of the law as referred to by Article 27
paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution. Here is a quote from
The opinion of the Constitutional Court is referred to:
31
" That temporary dismissal action against public officials,
in particular state business officials, who are charged with a follow
criminal is important to support his work due process of law
in order to prevent concerned officials through office
affects the vetting process or the lawsuit
is not disappointing to him. Or vice versa, preventing law enforcement
affected by the position of the accused as the head of the interior
culture of the law is eww pakewuh.
" Thus, the temporary stop was precisely realized
The principle of equality or equality before the law as
referred to by Article 27 of the paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.
Cause, with temporary stops against an
regional head and/or regional deputy in charge of
the crime, as set out in Article 31 of the paragraph (1) Pemda Act
that, any person can directly see that anyone
who commits a criminal or criminal act then against it will
applicable the same legal process, in the sense that the post
held a person should not impede or block the process
the person's criminal responsibility if he is charged with
a criminal offence. For certain positions held
a person charged with a criminal offence, according to
reasonable reasoning, may hinder the course of the judicial process
the criminal against the person who is concerned-known as
obstruction of justice-then for the sake of the principle of equality in advance
the law (equality before the law) must be a legal step for
negate the impediment.
" In relation to the application of a quo, an administrative action is
temporary stop of an area header and/or deputy head
the area charged with a criminal act as
is set in Article 31 of paragraph (1) The Pemda Act is precisely the step
the law to negate the potential obstruction of justice ";
7) That due to the nature of the temporary stop, then for
the legal certainty of the temporary dismissal status
daearah/deputy regional chief that, in Section 30 paragraph (2), Article
32
31 verses (2) and Article 33 of the paragraph (1) of the Pemda Act have been set up things as
following:
a. Temporary stops will be a fixed stop if
regional head/deputy head of the area is found guilty
committing a criminal offence based on the court ruling that has
obtained a fixed legal force.
b. Rehabilitate and reactivate the regional head and/or
the deputy head of the area concerned until the end of the
office if it is declared proven not based on the ruling
the court has obtained the power of the law remains
8) That the provisions of the reactivation of the regional head/head
the area as set up in Article 33 of the paragraph (1) the Pemda Act
is indeed only intended for the Regional Chief/Deputy Head of the Area
which is temporarily suspended and is not intended for Kada/Wakada
that is dismissed persists, given the a quo section clearly references Article 30
paragraph (1) and Article 31 of the paragraph (1) the Pemda Act which governs the dismissal
while the Regional Head/Deputy Head of the Regions. The provisions of Article a quo
are intended to provide legal certainty about the status
of the dismissal due to its temporary nature. As for
a fixed stop of the yuridis aspect has been contained
the legal certainty that the concerned did indeed have been
dismissed as the regional head/vice head of the area.
9) That though in The Pemda Act does not set about
The reactivation of Kada/Wakada is dismissed fixed because
found guilty based on a ruling that has been decapitated
the power of the law remains, but later stated that it is proven not to be
guilty based on a review ruling, it is not
and merta makes the provisions of Article 33 of the paragraph (1) of the Act to be
unconstitutional and contradictory to the 1945 Constitution, in other words
neither nor has it set any particular regard
with the section Materiel tested then not as well as merta can be made
base to state that the a quo is unconstitutional.
10) That the provisions of Article 33 paragraph (1) of the Pemda Act apply to all
Kada/Wakada is temporarily suspended from office, with
33
thus the applicant's postul stated that the a quo of is
is not appropriate. In addition, the paucity status
and the fixed stop status are seen from the yuridis aspect
is two different things, so that it cannot be set
in one of the same Article provisions.
11) That based on the description of the House of Representatives view the calm
Article 33 of the paragraph (1) The Act does not conflict with Article 27 paragraph
(1), Article 28D paragraph (1) and paragraph (3), as well as Article 28I paragraph (2) of the 1945 Constitution
Thus the DPR invoke the Chairman/Assembly of the Constitutional Court which
His majesty gives an amar the verdict as follows:
1. Stating that a quo was rejected for the whole or not-
it would not have been acceptable for a quo
2. The DPR's description was accepted for the whole;
3. Stating the provisions of Article 33 of the paragraph (1) of the Act not to conflict
with Article 27 paragraph (1), Section 28D paragraph (1) and paragraph (3), as well as Article 28I
paragraph (2) of the 1945 Constitution
4. Stating the provisions of Article 33 of the paragraph (1) the Pemda Act still has
the power of the law binding.
[2.5] weighed that to shorten the description in this ruling,
everything that happened in the trial was quite appointed in the Event News
The trial, and is one unbreakable unit with
This disconnect;
3. LEGAL CONSIDERATIONS
[3.1] Voting that the intent and purpose of the applicant is
imploring the constitutionality testing of Article 33 of the paragraph (1) Act Number
32 Year 2004 of the Local Government, (Sheet) Republic Country
Indonesia Year 2004 Number 125, Additional Gazette Republic of State
Indonesia Number 4437, subsequently called Act 32/2004), which states,
" The regional chief and/or deputy head of the area dismissed while
as referred to in Article 30 of the paragraph (1), Section 31 of the paragraph (1), and Article 32
paragraph (5) after going through the judicial process turns out to be found not to be guilty
based on the court ruling that has gained the legal power remains,
34
The slowest 30 (thirty) days the President has been rehabilitated and
reactivating the regional head and/or vice head of the region
is concerned until the end of his term " which is considered
contrary to the Basic Law of the Republic of Indonesia of the Year
1945 (subsequently called UUD 1945), that is:
a) Article 27 paragraph (1), " All citizens together in
laws and governance and shall uphold the law and governance
with no exception ".
b) Article 28D paragraph (1),"Each person is entitled to recognition, bail,
protection, and fair legal certainty as well as equal treatment
before the law ".
c) Article 28D paragraph (3),"Each citizen is entitled to a chance
within the government ".
d) Article 28i verses (2)," Everyone has the right to be free from the treatment that is
discriminates on any basis and is entitled to a protection
against that discriminatory treatment".
[3.2] weighed that before considering the subject of a request,
The Constitutional Court (later called the Court) was first going
considering the following:
a. The Court's authority to prosecute a quo;
b. (legal standing) the applicant to apply
a quo;
Against those two, the Court argues as follows:
Court authority
[3.3] weigh that According to Article 24C of the paragraph (1) of the Constitution of 1945 and Article 10
paragraph (1) of the letter of the Law No. 24 of 2003 on the Court
Constitution (Gazette of the Republic of Indonesia in 2003 No. 98,
Additional sheet of the Republic of Indonesia Number 4316) as it has been
amended by Act No. 8 of 2011 about the Top Change
Act No. 24 of 2003 on the Constitutional Court (Sheet
35
The State of the Republic of Indonesia in 2011 Number 70, the addition of the State Sheet
Republic of Indonesia Number 5226, further called the MK Act), as well as Article 29 of the paragraph
(1) letter a Act No. 48 of the Year 2009 on Power Justice
(sheet state of the Republic of Indonesia 2009 No. 8, Supplement
sheet of state of the Republic of Indonesia No. 4358), the court of law
judged on the first and final level that the verdict was final for
test the Act against UUD 1945;
[3.4] weighed that a quo is about testing
Act in casu Act 32/2004 against UUD 1945, so that the Court
authorities to prosecute a quo;
Legal standing (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
Act against the Constitution of 1945 is those who regard the right of the right to the right of the law.
and/or its constitutional authority is harmed by the enactment of the Invite-
Invite the test, 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 absence of the constitutional rights and/or constitutional authority provided by
The 1945 Constitution resulting from the enactment of the Act
on the test of testing;
36
[3.6] The Court since the Decree No. 006 /PUUIII/
2005 was dated 31 May 2005 and the No. 11 /PUU-V/2007 Decree No. 20
September 2007 and subsequent rulings have been establish that
rights and/or constitutional rights losses as referred to in
Article 51 of the paragraph (1) MK Act must meet five terms, namely:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or the constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific and actual or at least a potential that according to reasoning
which is reasonable is certain to occur;
d. Due (causal verband) relationship between losses referred to
by the enactment of the testing Act;
e. It is possible that with the application of the request, then
the rights and/or constitutional rights losses such as the postured is not
will or no longer occur;
[3.7] weighed that under Article 51 of the paragraph (1) The MK bill and the terms-
terms of rights and/or constitutional authority as outlined
above, subsequently the Court will consider the legal position (legal
standing) the applicant in the a request Quo;
[3.8] It is balanced that the applicant is a person of the citizens country that
implores testing of the constitutionality of Article 33 of the paragraph (1) Act 32/2004 against
Article 27 paragraph (1), Article 28C paragraph (2), Section 28D paragraph (1) and paragraph (3), as well as the Article
28I paragraph (2) of the 1945 Constitution on the grounds that the applicant as the Count of Mamasa
who has been dismissed by the Minister of the Interior with Letter Number 131-
76.486 on 24 June 2011. According to the applicant section a quo only rehabilitate
and reactivate the regional head and/or deputy head of the area
dismissed while going but not rehabilitating and activating
back the regional head and/or the deputy head of the dismissed area fixed,
although in the judicial process it turns out to be found not guilty based on
37
a court ruling that has gained the power of the law remains. It has been
harming the constitutional right of the applicant with the enactment of the section that
dimoed the testing;
[3.9] weighed that based on consideration in paragraph [3.7], and
paragraph [3.8] above, as well as associated with the loss of the applicant as
the individual of the Indonesian citizen, the applicant has a constitutional right
which is harmed by the regulations it is being honed for testing. The loss
is specific and there is a causal link (causal verband)
between the losses referred to the Act is moveted
testing. As such, according to the Court, the applicant has a position
the law in submitting a a quo;
[3.10] A draw that by the competent court of authority and the applicant
has a legal position (legal standing) to apply for a quo
then later the Court will consider the subject;
Subject to
[3.11] weighing in that the applicant postulate Article 33 of the paragraph (1) Act 32/2004
specifically the phrase "...which is temporarily suspended ...", is discriminatory and
impeding the political rights and constitutional rights of citizens, in particular
The applicant has been dismissed as the Regional Chief of Mamasa Regency;
[3.12] Draws That To Prove His Control The applicant submitted
a proof of the letter/writing given proof of P-1 up to P-12 evidence and
present one witness;
[3.13] weighed that against the applicant, the Court had
read the Government's written testimony and the Council's written caption
The People's Representative who in all notes explains that the norm that
is being honed is not contradictory to the 1945 Constitution (caption
The rest is on the Sekara of the Sekara section);
38
Court opinion
[3.14] weighed that after the Court checked in with the witness
petitioners, read the Government and the House, heard
witness statements, as well as checking the evidence surat/writing submitted by
The applicant, the Court argued as follows:
[3.15] weighed that Article 1 paragraph (3) of the 1945 Constitution mandates the country
Indonesia is a legal state, then in hosting the country and
governance must be in line with the principles of the legal state wrong
one must be based on the laws as law
in effect. Based on the provisions of Article 1 of the paragraph (3) of the Constitution of 1945,
then in the holding of a constitutionally regulated regional government
in BAB VI, Article 18 of the paragraph (1) of the 1945 Constitution states that " Country
Unity The Republic of Indonesia is divided over provincial and regional areas
the province is divided over counties and cities, each province, county/city
it has a government-governed regional government ",
further in Article 18 of the paragraph (4) of the 1945 Constitution states, " Governor, bupati,
and their respective mayors as provincial regional governments,
counties, and the city are elected democratically ". As for the
hosting of regional governments is further governed by the Act
as it mandates Article 18 of the paragraph (7) of the 1945 Constitution which states,
" Susunan and the layout of local governance set with
legislation ";
[3.15.1] That the provisions of Article 1 paragraph (2), paragraph (3) and Article 18 of the 1945 Constitution
it is a constitutional basis on the existence of a government
area, which is then As the foundation of the operation, Law 32/2004
as it is has been changed last with Act No. 12 of the Year
2008, which in it set the provisions regarding the Head Stop
Regions and Regional Deputy Chiefs;
[3.15.2] That in the a quo Act is set also about the provisions
temporary dismissal of section chief/deputy head of the region
caught on criminal as contained in Article 30 paragraph (1), Section 31
39
paragraph (1) Act 32/2004 and provisions regarding rehabilitation and activation
return of the regional head/deputy head of the area temporarily suspended if
is found to be found not guilty based on the verdict The court has
obtained a fixed legal force as set out in Article 33 of the paragraph (1)
Act 32/2004, which corresponds to the principle of the state of law to be embraced
constitution;
[3.15.3] That provision a temporary stop for any official
state/public officials who allegedly did criminal acts are
precise and proportionate settings, in order to maintain a positive image both against
state/government agencies and public officials, so that the performance of the institution
is concerned not to be disturbed by the status of the The suspect
local head/head of the area;
[3.15.4] That against the provisions of the temporary dismissal of the regional head
and/or deputy to the area, the Constitutional Court in the Discourse of Number
024 /PUU-III/2005 pages 39 and 40, argue that the dismissal
provisioned As provided in Section 31 of the paragraph (1) Act 32/2004 is
is the realization of the principle of equality before the law
as referred to by Article 27 of the paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.
In that disconnect, the Court considers among others, " That
interim dismissal action against public officials, in particular the official
state business, which is charged with committing a felony. is important to
support its work due process of law to prevent officials
concerned through his post influencing the vetting process or
A lawsuit that is not disappointing to him. Or otherwise, prevent
law enforcement is affected by the position of the accused as the internal head of the interior
An ewuhm legal culture.
" Thus, the temporary stop was realized Principle
The equation or derision before the law as intended by
Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution. Because, with
temporary stops against an area head and/or deputy head
the area charged with the crime, as set in Section 31
40
paragraph (1) The Act of Pemda, any person directly may see that
anyone who commits a criminal or criminal offence then against it will
applicable the same legal process, in a sense that the post held
one should not impede or block the process
The person ' s criminal liability should he be charged with a follow
criminal. For certain positions held by a person indicted
committing a felony, according to reasonable reasoning, may
impede the course of the criminal justice process against the person in question
-known as obstruction of justice-then for the sake of principle
the equation in advance of the law (equality before the law) must be a legal step
to negate the impediment.
" In relation to the law.
. with a request quo, an administrative action of
stop while an area header and/or deputy head of the area
is charged with a criminal act as set out in Article 31
paragraph (1) The Penda Act is precisely a legal step to negate the potential
obstruction of justice ";
[3.15.5] That due to temporary stops, then for
the legal certainty of the temporary termination status of the regional head/representative
the head of the area, in Article 30 of the paragraph (2), Section 31 of the paragraph (2) and Article 33
paragraph (1) of the Act 32/2004 has been set things as follows:
a. Temporary stops will be a fixed stop if the head
area/vice head of the area is found to be found guilty of committing a follow
criminal based on the court ruling that has acquired the force
the law remains.
b. Rehabilitate and reactivate the regional head and/or deputy head
the area concerned until the end of his term if
is declared not to be found guilty based on a court ruling that has
obtain a fixed legal force;
[3.15.6] That the provisions of the reactivation of the regional head/vice head
the area as set in Section 33 of the paragraph (1) Act 32/2004 is indeed only
intended for the head of the region/representative The head of the temporary suspended area
41
due to the ruling status that punished him has not obtained the legal power
remains and is not intended for the regional head/deputy head of the region
dismissed remains due to the ruling status that sentenced him to have been obtaining
a fixed legal force. The reason, the a quo clearly refers to Article 30 of the paragraph (1) and
Article 31 of the paragraph (1) of the Act of 32/2004 which governs temporary stops
regions/deputy heads of the region. The provisions of article a quo are intended to
provide legal certainty about the termination status due to its nature
, whereas for a fixed stop of the aspect
yuridis has been a certainty. the law is due to be concerned indeed
has been dismissed as head of the district/deputy head of the area based on
a court ruling that has gained the power of the law remains. According to
the law, the case ruling directly gains a fixed legal force though
in question of submitting an extraordinary legal effort through review
back and the intended legal effort does not block the execution of the
The case of the cassation or other ruling that has gained the power of the law remains;
[3.15.7] That although in Law 32/2004 it does not set about
re-activation of the regional head/vice head of the dismissed area remains
for being found guilty based on a ruling that has obtained
The power of the law remains, then stated to be found not guilty based on
the review ruling, it does not and merta make provision
Article 33 of the paragraph (1) Act 32/2004 becomes contrary to the 1945 Constitution. With
other words, neither or undefined any particular thing at all
related to the section that the constitutionality testing does not mean
may be the basis for stating that section a quo contradictory to
Constitution of 1945;
[3.16] Draw that the Applicant Controls are related to
the termination of the regional head/deputy head of the area prior to its issuer
The Review verdict returns has been considered by the Court as the
above, hence the dalil-dalil The applicant regarding the same is not
needs to be reconsidered;
42
[3.17] weighed that based on the above consideration, then
The applicant that Article 33 of the paragraph (1) Act 32/2004 contradictory to the Constitution
1945, is not proven and unwarranted according to 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
apply a quo;
[4.3] The request of the applicant is not proven and unwarranted of the law;
Based on the Basic Law of the Republic of Indonesia of Indonesia Year
1945 and the Law No. 24 of 2003 on the Constitutional Court
(sheet state of the Republic of Indonesia in 2003 No. 98, Supplement
sheet of state of the Republic of Indonesia Number 4316), as amended
with Act No. 8 of 2011 on Changes to Invite
Invite Number 24 Years 2003 on the Constitutional Court (State Sheet
Republic of Indonesia Year 2011 Number 70, Additional Gazette Republican States
Indonesia Number 5226), as well as Act No. 48 of 2009 on
Judiciary Power (Sheet Country Republic Of Indonesia Year 2009 Number
157, Additional State Sheet Republic of Indonesia No. 5076).
5. AMAR RULING
PROSECUTING,
States denied the applicant for the whole;
It was decided at a Meeting of Judges attended
by the nine Justices of the Constitution of Moh. Mahfud MD., as the Chairman, was arrested
Member, Achmad Sodiki, Anwar Usman, Ahmad Fadlil Sumadi, M. Akil Mochtar,
Maria Farida Indrati, Harjono, Muhammad Alim, and Hamdan Zoelva, respectively-
respectively as Members, in on Tuesday, respectively. Date twenty-six, March, year two thousand thirteen, and spoken in the Plenary Session of the Constitutional Court is open to the public at Thursday, twenty-eight,
43
in March, the year two thousand thirteen, finished pronounced at 15.21 WIB, by the eight Judges of the Constitution, namely Moh. Mahfud MD., as the Chairman, Achmad Sodiki, Anwar Usman, Ahmad Fadlil Sumadi, M. Akil Mochtar,
Maria Farida Indrati, Muhammad Alim, and Hamdan Zoelva, respectively
as Members, accompanied by Fadzlun. Budi SN as Panitera
Replacement, attended by the Government or representing, the House of Representatives
People or represent, without the presence of the applicant/its ruler.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd
ttd ..
Achmad Sodiki
ttd.
Anwar Usman
ttd ..
Ahmad Fadlil Sumadi
ttd.
M. Akil Mochtar
ttd.
Maria Farida Indrati
ttd.
Muhammad Alim
ttd.
Hamdan Zoelva
PANITERA REPLACEMENT,
ttd.
Fadzlun Budi S.N.
