Test The Material Constitutional Court No. 9/puu-Ix/2011 2011

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 9/PUU-IX/2011 Tahun 2011

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Microsoft Word-2011-PUU 9 Verdict has been read 1 F VERDICT No. 9/PUU-IX/2011 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and disconnected things of the Constitution on the first and last levels, dropping a verdict in the case of application for Testing Act No. 34 of 2004 about the Indonesia national army against the Constitution of the Republic of Indonesia in 1945 presented by the : [1.2] 1. Name: Moh. Riyadi Setyarto; Place/date of birth: Madiun, 14 November 1972; Occupation: private, trade in goods and services; Address: the street Number 35, Haryono I Market Friday, Kelurahan Pondok Pinang, South Jakarta; 2. Name: Rasma a. W; Place/date of birth: 21 March 1963; Occupation: Laborer; Address: RT/RW 01 02, Kelurahan Marunda Cilincing, North Jakarta; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-– The Applicant; [1.3] Read the petition of the Applicant; Hearing a description of the Applicant; Check the written evidence of the Applicant; 2. SIT the MATTER [2.1] considering that the applicant had filed a petition with their petition letter dated December 20, 2010, received at 2 Constitutional Court Registrar (hereinafter referred to as the clerk of the Constitutional Court) on Monday 27 December 2010 and repaired on Monday February 7, 2011 with registration number 9/PUU-IX/2011, which substantially as follows: Constitutional Court of Authority 1. That article 24C paragraph (1) of the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution) juncto article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (hereinafter referred to as the ACT of the COURT) stated that one of the powers of the Constitutional Court is conducting a testing legislation against the CONSTITUTION of 1945; 2. That article 7 of the Act No. 10 of 2004 concerning the formation of the Regulations (hereinafter referred to as ACT 10/2004) States that in a hierarchical position of the Constitution is higher than the laws and if there is a provision in the legislation that is contrary to the Constitution then that provision can be petitioned to be tested through the mechanism of testing law; 3. Based on the above matters, the Applicant argues that the Constitutional Court is authorized to inspect and test the application for termination of this Act; II. The position of the law (Legal Standing) The Applicant 1. That Article 51 paragraph (1) of the ACT the COURT stated that the applicant is a party which considers the rights and authorities of the konstitusionalnya or harmed by the enactment of the legislation in letters a mention of individual citizens of Indonesia; 2. In Article 51 paragraph (1) of the ACT the COURT said that the definition of constitutional rights are rights that are regulated in the Constitution; 3. That in relation to this plea the Applicant confirms that the applicant has the constitutional rights in the Constitution are set as follows: 3 3.1. That our predecessors since the proclamation of independence on August 17, 1945, declared in the Preamble of 1945 paragraph 2, "delivering the people of Indonesia to the front gates of independence Indonesia independent, unified, sovereign, just and prosperous", thus accomplishing the State of Indonesia which independent, unified, sovereign, equitable, and prosperous is the right of all of us as the people of Indonesia, as well as the Applicant; 3.2. That the Applicant has the right arising from the obligations of the Governments of Indonesia as stated in the Preamble of 1945 paragraph 4, ".. protecting all Nations Indonesia and all the spilled blood of Indonesia ... ", IE protection together as a single entity of the cosmological all living things and inanimate objects as well as in singly, so that ancient objects is also protected, let alone the region, land, air, and water attached to his presence with the nation of Indonesia as well as anything that was in it protected, so that violations of the compulsory area wealth of nature, theft or the takeover of an area of land or water by means of foreign parties also violated the rights of the people of Indonesia; The revelation at the opening of the Constitution also means any people of Indonesia deserve the protection of the Government of the Republic of Indonesia; 3.3. That the people of Indonesia, including the Applicant, have the right to sovereignty in a country such as Indonesia are listed in the Constitution article 1 paragraph (2), that "Sovereignty is in the hands of the people and is exercised according to the basic law", in which the country Indonesia is listed in Article 25A Constitution, namely the "unitary State of the Republic of Indonesia is an archipelago with the archipelago with the territory boundaries and his rights specified by law". If there are foreign parties that violate the territory of the Republic of Indonesia means also infringe the sovereignty of the people of Indonesia in the dimensions of the place; 2.1. That the Applicant has the right sense of security as set forth in Article 28G Constitution, that "everyone has the right to protection of personal self, family, honor, dignity, and property that is under the


4 of his reign, as well as the right to security and protection from the threat of fear to do or not do something which is a human right ". If there are smuggling or the entry of explosives illegally in large numbers to the territory of the Republic of Indonesia, this certainly gives the security threats to the citizens of Indonesia; 3.5. That the applicant has the right to get a piece of the prosperity of Earth, water, and natural resources in Indonesia as the people of Indonesia as stated in Article 33 paragraph (2) of the Constitution, "Earth, water and natural resources contained therein are controlled by the State and used to sebesar-besar people's prosperity". So if there is a theft of produce or fish by foreign parties means join reduce rights get a piece of prosperity which should be obtained by the applicant. A reduction of the rights of illegal means is also a violation of these rights; 3. That the Applicant has the right set forth in article 27 paragraph (2) of the Constitution, "every citizen has the right to a job and a decent livelihood for humanity"; 2.3. That the Applicant have the right as set forth in Article 28A Constitution, "everyone has the right to live and maintain living and life"; 3.8. That the Applicant has the right to develop themselves through fulfillment of the needs of the essence in order to improve the quality of life and well-being of humankind, in accordance with article 28C paragraph (1) of the Constitution, "everyone has the right to develop themselves through fulfillment of the needs of nature, is entitled to education and benefit from science and technology, arts, and culture, in order to improve the quality of life and well-being of the human race"; 3.9. The right to get protection from the Government are obliged to protect, promote, and meet human rights as provided for in article 28I paragraph (4) of the Constitution, namely, "protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State is primarily a Government";

5 Theft of fish or produce massive foreign parties do cause petitioners do not get enough results to be able to meet his needs so that the rights of the applicant in article 27 paragraph (2), article 28A, Article 28C and paragraph (1), and Article 28I paragraph (4) of the Constitution, such as the aforementioned broken; 4. from the explanation that the number 3 above it is obvious there are nine constitutional rights in the Constitution that contains the applicant's constitutional rights are broken by the passage of the articles of a quo; 5. That under the jurisprudence of the Constitutional Court according the verdict of case Number 006/PUU-III/2005 and no. 11/PUU-V/2007 about the loss of constitutional rights should meet the 5 terms, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the kontitusional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. the constitutional harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship between the harm intended and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition, then the constitutional losses as postulated would not or did not happen again; From the explanation before, the letter a and letter b already fulfilled; 6. That the loss of the specific nature of the constitutional (Special) and the actual potential or at least according to the reasoning reasonably certain will happen is as follows: 6.1. The existence of the facts already known with that in February 2005, the ship enters a foreign country's military naval region of the Republic of Indonesia in the Ambalat incident and the TNI AL and the arrest of employees of the Department of marine and fisheries in the region of the sea of the Republic of Indonesia in Riau Islands by armed ships of foreign countries in August 2010;

6 6.2. That claim of a foreign country against the Ambalat since 2005 until now has not been repealed, so this is a real threat; 6.3. That in the area of Ambalat oil block that a backup of Ambalat, which is worth trillions of rupiah; 6.4. That in the area of sea in the Riau Islands in which occurs the event of the arrest of employees of the Department of marine and Fisheries, there is such a wealth of very large sea; 6.5. in the event that the Ambalat as well as foreign countries claim it until now and the Riau Islands in the sea of events that cause harm to the Applicant, namely: a. Losses due to not getting a unified and sovereign State, pursuant paragraph 2 Preamble of 1945, namely, "delivering the people of Indonesia to the front gates of independence Indonesia independent, unified, sovereign, just and prosperous." A fair and prosperous State still requires a process but a unified and sovereign State must have realized since independence; b. Losses as a nation that borders Indonesia to be broken or threatened the integrity of its territory. The constitutional rights afforded by paragraph 4 of the Preamble of 1945, ".. a State Government that Indonesia protect the Nations Indonesia and all the spilled blood of Indonesia "; c. Losses the Applicant has the right of sovereignty as a people of Indonesia in the country of Indonesia as stated in article 1 paragraph (2) of the Constitution, namely, "Sovereignty is in the hands of the people and is exercised according to the basic law", in which the country Indonesia is listed in article 25A Constitution, namely, "the unitary State of the Republic of Indonesia is an archipelago with the archipelago with the territory boundaries and his rights specified by law". If there are foreign parties that violate the territory of the Republic of Indonesia means also infringe the sovereignty of the people of Indonesia in the dimensions of the place;


7 6.6. That the losses inflicted by the events in Ambalat as well as foreign countries claim it until now and the Riau Islands in the sea of events as well as the accompanying territorial transgression is specific harm because the incident is a specific occurrence types. Which case the incident is not mundane, ordinary, and can be tolerated; 4.2. in the event that the Ambalat in 2005 and claims that foreign countries since 2005 until now and the Riau Islands in the seas event in 2010, is going on since Act No. 34 of 2004 about the Indonesia national army force, and unprecedented threat to the country's defense as it was in the previous years since Indonesia became independent; 6.8. other constitutional Disadvantage is the loss due to the fact the entry of ships of another country that brought as much as 50 tons of explosives equivalent to 50,000 kg illegally to be sent to a town in Sulawesi, and the ship was caught in the deep sea voyage by Customs officers in an operation, December 2010, as reported in the mass media. This does not cover the possibility of the presence of the carrier ships of other explosives that escaped from arrest; That the existence of a ship transporting explosives in a huge amount of illegally from the territory of another country then enters into the territory of Indonesia and was sent to a city, causing a loss of constitutional as follows: a. the declining sense of security for the citizens of Indonesia, including the applicant, whereas Article 28G mentions the Constitution, "everyone is entitled to protection of personal self, family, honor, dignity, and property under his control , as well as the right to security and protection from the threat of fear to do or not do something which is a human right ". If there are smuggling or the entry of explosives illegally in large numbers to the territory of the Republic of Indonesia, this certainly gives the security threats to the citizens of Indonesia because of that explosive weighing 8 50 tonnes can be detonated anywhere up to 5,000 locations by people who are not responsible. For example, the second blast at the JW Marriot, Kuningan, Jakarta, with just 5 kg up to 10 kg of explosives. The right sense of security the Applicant clearly disadvantaged; b. the right to obtain protection as stipulated in paragraph 4 of the Preamble of 1945, namely, "a State Government that Indonesia protect the Nations Indonesia and all the spilled blood of Indonesia" endangered; 6.9. That losses brought about by the entry of ships carrying explosives illegally to Indonesia was specific losses because the incident is a specific occurrence types. Which case the incident is not mundane, ordinary, and it can be tolerated. This occurred after the enactment of Act No. 34 of 2004 about the Indonesia national armed forces (hereinafter referred to as law 34/2004); 6.10. That the aforesaid constitutional harm is the specific and in accordance with the jurisprudence of the Constitutional Court according the verdict of case Number 006/PUU-III/2005 and no. 11/PUU-V/2007 about the loss of constitutional rights, and in accordance with the ruling of the Constitutional Court the number 22/PUU-VI/2008, with the applicant Moh. Dharma which losses Moh. Dharma is also felt by the citizens of Indonesia to another or the other parliamentary candidates, even though they did not give authority to the Moh. Dharma to apply to the Constitutional Court; 6.11. That losses related to the constitutional law 34/2004 due to the explanation of article 7 paragraph (1) of the letter g is mentioned, "security threats at sea or air national jurisdiction of Indonesia, who performed a specific party, parties can be: 1. Piracy or piracy; 2. Smuggling of weapons, ammunition, and explosives or other materials that could compromise the safety of the nation; 3. Catching fish illegally or theft of the riches of the sea. "

6.12 9. In addition to the above, there is another fact that supports this objective test submission, namely the existence of losses due to theft of constitutional fish in the sea by foreigners or foreign fishermen, according to the Food and Agriculture Organization, hereinafter referred to as FAO, an official from United Nations organizations or referred to the United Nations, where the country Indonesia became a member, recalled that the theft of the fish of the sea, Indonesia reached 30 trillion per year. FAO data is published in the official publications of the Ministry of Marine Capture Fisheries and fisheries of the Republic of Indonesia, volume 1, number 4, year 2010; 6.13. That the theft of fish and seafood by foreign fishing occurs in a large number in the region of the sea of the Republic of Indonesia in the exclusive economic zones or within the borders of the sea 12 miles of coastline as revealed by Bibit Waluyo h., Governor of Central Java, which was published in mass media Capture Fisheries Ministry of Marine and fisheries publications of the Republic of Indonesia; 6.14. That massive fish theft by foreign fishermen who trawl the Tigers, involving the use of fish bombs, as well as medium-sized ships and the Giants became one of the causes of the fall in the percentage of increase in the capture of national fish production, that is since 2005 the increase only 1.34% compared to previous year's 2.48%. Whereas the number of ship nationally rose 3%. The population of Indonesia rises 1.5% per year; It also makes the decline in revenue per vessel as well as the average fish prices be rising; 6.15 in. That from the above facts make a loss for the fishermen, the fishing workers, serabutan workers in the sea fishery, residents living in the coastal areas of its economic cycle is associated with seafood, seafood traders and businessmen, related to seafood, a businessman associated with the ship and its furnishings, as well as consumer society marine fish, including the Applicant; 6.16. the above is that the loss of specific losses because of the actions of a specific, i.e. theft rising sea fish which is a result of the application of the articles of a quo, which gives


10 opportunities and a greater chance to foreigners or foreign countries to violate the territory of the Republic of Indonesia because of the country's defence organization changed since 2004; 6.17. In addition to the above, there is another fact that supports this objective test submission, namely the existence of losses due to theft of wood that is constitutional is increased to be sent to foreign countries passes through the border in blatant or surreptitious but without permission committed by foreigners; 6.18. That the loss of theft of timber and wood deliveries to foreign countries without such permission in the form of a lack of supply of timber in the country, not the relative supply of and tends to fall, as well as the price of wood is increasing. This led to many traders and small entrepreneurs wood roll mats; 6.19. the constitutional consequences that losses increased the timber theft suffered by domestic timber traders, businessmen, users of domestic wood wood for the purposes of construction or renovation, as well as the owner of a house or building using wood, including the Applicant; 6.20. the constitutional that the loss due to theft of share of fish, seafood, as well as the wood in violation of constitutional rights owned by the Applicant, namely: a. that the applicant has the right to get a piece of the prosperity of Earth, water, and natural resources in Indonesia as the people of Indonesia as stated in Article 33 paragraph (2) of the Constitution, "Earth and water and natural resources contained therein are controlled by the State and used for the great prosperity of the people." If there is a theft of produce or fish by foreign parties means join reduce rights get a piece of prosperity which should be obtained by the applicant. A reduction of the rights of illegal means is also a violation of these rights; b. that the Applicant has the right set forth in article 27 paragraph (2) of the Constitution, "every citizen has the right to a job and a decent livelihood for humanity";

11 c. that the Applicant have the right as set forth in article 28A Constitution, "everyone has the right to live and maintain living and life"; d. that the Applicant has the right to develop themselves through fulfillment of the needs of the essence in order to improve the quality of life and well-being of mankind, in accordance with article 28C paragraph (1) of the Constitution, "everyone has the right to develop themselves through fulfillment of the needs of nature, is entitled to education and benefit from science and technology, art and culture, in order to improve the quality of life and well-being of the human race"; e. the right to get protection from the Government are obliged to protect, promote, and meet human rights as provided for in article 28I paragraph (4) of the Constitution, namely, "protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State is primarily a Government"; Theft fish or produce including wood in large quantities which do cause the foreign Applicant is not getting enough results to be able to meet his needs so that the rights of the applicant in article 27 paragraph (2), article 28A, Article 28C and paragraph (1), and Article 28I paragraph (4) of the Constitution, such as the aforementioned broken; 7. That the facts which resulted in the constitutional case or losses increased after 2004 and is closely related to aspects of the defence of the State; 8. That the articles of a quo prevailing since October 16, 2004, causing a lack of organizational system of Defense of the State; 9. That the vagueness of the country's defense system is also evidenced by the TNI Commander's resignation application at the time when the draft law on Indonesia national army it will be enacted into law; 10. That the Applicant assumed the constitutional rights of the Applicant are regulated in the Constitution as outlined above have been harmed 12 with the introduction of article 3 paragraph (2), article 15 paragraph (7), subsection (8), paragraph (9) of article 66, paragraph (2), article 67 and article 68, paragraph (2) of law 34/2004 which gives opportunities and greater opportunities to foreign countries and foreign citizens and/or making them more daring to :-breaking areas and try to overwhelm parts of Indonesia as well as the natural resources contained therein, where there is a right of the people of Indonesia including the applicant to obtain the benefits or the prosperity of it; -breaking the territory's sovereignty of the Republic of Indonesia to steal produce including fish in the territory of the Republic of Indonesia, where the fish including produce is the source of livelihood of the Applicant; -smuggling of explosives across the border in a huge number of threatening a citizen of Indonesia which we do not know when and where it will explode; And the violation of the territory, natural resources, theft and smuggling explosives that clearly violate constitutional rights as people, citizens, and the nation of Indonesia; And violations of the territory and the theft was already underway and still lasts to this day; In addition, since the enactment of this Act in 2004, appears a real threat militarily, i.e. the use of warships from other parties appear like in the Ambalat in 2005, that we know, as well as the use of foreign ships armed by the State to arrest the Clerk Office of marine and Fisheries in the waters of Indonesia, in August 2010, which clearly violates the constitutional rights of the people, the citizens, and the nation of Indonesia including the Applicant; 11. That if the objective test application is granted by the Court, then the country's defense system will come back strong and sturdy because Indonesia national armed forces organization will be directly under the President in all respects, as stated in the Constitution, and about the defence of the country outlined in Act No. 3 of 2002 on State Defense, then this will lead to a foreign country and foreign citizens are reluctant to occupy , violated the territory, natural resources, stealing and threatens the sovereignty of the Republic of Indonesia;


13 III. REASON of APPLICATION for a. Constitutional norms 1. That article 3 paragraph (2) of law 34/2004 contrary to norms in the articles of Constitution as follows: 1. Article 10 Constitution which States: "the President holds Supreme authority over the army, Navy and air force"; 2. Article 30 paragraph (2) of the Constitution which States, "the country's defense and security Efforts implemented through a system of Defense and security of the people of the universe by the Indonesia national army and police force of the Republic of Indonesia, as a major power, and the people, as a supporting force"; 3. Article 30 paragraph (3) of the Constitution which States, "the Indonesia national armed forces consist of the army, Navy, and air force as a tool of the State is in charge of defending, protecting, and maintaining the integrity and sovereignty of the country"; 2. As for the sound of article 3 paragraph (2) of law 34/2004 as follows, "in defense policy and strategy as well as administrative support, under the coordination of the INDONESIAN Ministry of Defense"; 3. That the then explanation of part of article 3 paragraph (2) of law 34/2004 explains, "is under the coordination of the Department of Defense is everything to do with strategic planning that includes aspects of the management of the country's defense policy, budgeting, procurement, recruitment, management of national resources, as well as the construction of the defense industry technology needed by the TNI and other defense components, while the INDONESIAN AIR force related to coaching education preparation, exercise, strength, military doctrine is at TNI Commander assisted the Chief of staff of the Navy. In the framework of the achievement of the effectiveness and efficiency of the management of the defense of the country, on the future of the institution the TNI are in the Defense Department "; 4. That thus it is clear that article 3 paragraph (2) of law 34/2004 a quo contravenes the norms of article 10, article 30, paragraph (2) and article 30 paragraph (3) of the CONSTITUTION of 1945;

14 5. Even within the Explanation of article 3 paragraph (2) of law 34/2004, paragraph 2, States: "in the framework of the achievement of the effectiveness and efficiency of the management of the defense of the country, on the future of the institution the TNI are in the Defense Department"; Then the more obvious contradiction of article 3 paragraph (2) of law 34/2004 against the norms in the articles of the CONSTITUTION of 1945; 6. That article 3 paragraph (2) of law 34/2004 contrary to the flow of reasoning or analogy that put the State police of the Republic of Indonesia directly under the President's position when State police of the Republic of Indonesia in the Act No. 2 of 2002 take the same article with the position of TNI i.e. from article 30 of the CONSTITUTION of 1945 and contains the charges equivalence of the position as contained in paragraph (1) and in paragraph (2) , and paragraph (3) contains the meaning of words and sentences are the same, only different functions in which police in the field of security and armed forces in the field of defence of Indonesia; 7. That then, if reviewed all State agencies, which are regulated in the Constitution by remembering the importance and functions of his position, no one-level Directorate General of a Department or Ministry. State agencies subject to its existence in the Constitution, namely, the people's Consultative Assembly, the President and the Vice President, House of representatives, Ministry, Electoral Commission, Bank Indonesia, Financial Examiner, Supreme Court, Constitutional Court, the judicial Commission, and State police of the Republic of Indonesia; Then a very strange thing when Indonesia national army position under a Ministry or Department; So very clear contradiction of article 3 paragraph (2) of law 34/2004 with the Constitution; 7. That if the Republic of Indonesia travel reviewed since 1945 until 2004, then it never happened the position of the Organization of the army not under President; 8. That if we review the Preamble of 1945, stated clearly and unequivocally the importance of the task of the Governments of Indonesia, namely, the "protect all nations of Indonesia and all the spilled blood of Indonesia", so that what the 15 listed in article 10, article 30, paragraph (2) and article 30 paragraph (3) of the Constitution is something that is very important and vital; 9. Even in countries that are the basis of Pancasila and the 1945 CONSTITUTION stipulated in the preamble mentions the third point in Indonesia's unity, which is the unity of Indonesia requires defense and security for the people and the country to remain intact and unified. Padmo Jimbo and Hamid Attamimi s., as cited by Prof. Dr. Jimly Asshidiqie, S.H.., MA., called Pancasila as the ground state is the source of the Supreme Law; 10. That if the terms of the 1998 reform spirit, then reform the country for the military already materialized with the separation of the Indonesia national army and the police, to the authority in the field of Defense and security, which was confirmed with TAP MPR VI 2000 and TAP MPR VII in 2000, and the presence of the Defence Act and legislation Policing of the country, as well as the inclusion of clauses on human rights in the Constitution Constitution, which is the basis of all actions of the Indonesia national army; 11. That if allegations of allegations of human rights violations (human rights), then it is no excuse for compromising the sovereignty of the nation and the country, what the allegations of human rights violations that occurred before it contains clauses on HUMAN RIGHTS in the Constitution and it was done by the person; 12. That thus it is clear that article 3 paragraph (2) of law 34/2004 is not in accordance with the Constitution as well as the condition of the nation and the State of Indonesia, let alone the territory of the Republic of Indonesia consists of many islands, surrounded by the ocean, with an area of territory more 2 million square kilometers with its natural wealth and flanked by two continents and two oceans; 13. Thus it is clear that Article 15 of the law 34/2004 about the duties and obligations of the Chief, which reads: "subsection (7):" give consideration to the Secretary of Defense in the matter of the determination of the country's defense policy "; subsection (8): "to give consideration to the Secretary of Defense in the event of assignment of TNI needs fulfillment policy and other defense components";


16 subsection (9): "giving consideration to the Minister of defense in drafting and implementing strategic planning management of national resources for the benefit of the defence of the country"; is not in compliance with article 10, article 30, paragraph (2) and article 30 paragraph (3) of the CONSTITUTION of 1945; 14. That thus obvious that article 66, paragraph (2) of law 34/2004, namely: "the purposes of the budget referred to in paragraph (1) proposed by the Department of Defense"; contrary to article 10, article 30, paragraph (2) and article 30 paragraph (3) of the CONSTITUTION of 1945; 15. That thus the obvious, that Article 67 law 34/2004, namely: "(1) in terms of the fulfillment of budget support TNI, Commander submits to the Secretary of Defense to be financed entirely from the budget of the State Expenditures and Revenues. (2) in terms of the fulfillment of budget support operations is urgent, the Commander submits a budget to the Secretary of Defense to financed from budget kontijensi Budget Income sourced from State Spending. (3) support as referred to in paragraph (2) requested the approval by the Minister for defence to the House of representatives "; is contrary to article 10, article 30, paragraph (2) and article 30 paragraph (3) of the CONSTITUTION of 1945; 16. That thus it is clear that Section 68 subsection (2) of law 34/2004, namely: "the INDONESIAN defence budget management is obligated to guarantee his country as referred to in paragraph (1) to the Minister of defence"; is contrary to article 10, article 30, paragraph (2) and article 30 paragraph (3) of the CONSTITUTION of 1945; 17. That there is a thing that should be kept in mind that House approval for the draft law 34/2004 when it performed a few hours before the members of the HOUSE of REPRESENTATIVES from 1999-2004 the outgoing, where much happens the turn of House members and the composition of the fraction change in total, and ratified by President Megawati, Saturday October 16, 2004, and October 20, 2004, appointed a new President officially;

17 b. in such case the Constitutional Court is obliged to perform tasks that are performed by him that was mandated by the Constitution that the Constitutional Court is the guardian of the constitution and the final interpreter of the constitution. Therefore, based on the above description, the Judge of the Constitutional Court are expected to accept and grant the entire test application this materially; IV. PETITUM based on the above, the Applicant appealed to an Assembly of Judges of the Constitutional Court to check and disconnect the application for testing is as follows: 1. Accept and accede to the whole application of the test material; 2. Declares article 3 paragraph (2), article 15 paragraph (7), subsection (8), paragraph (9) of article 66, paragraph (2), article 67 and article 68, paragraph (2) of Act No. 34 of 2004 about the Indonesia national army contrary to the Constitution; 3. Declares article 3 paragraph (2), article 15 paragraph (7), subsection (8), paragraph (9) of article 66, paragraph (2), article 67 and article 68, paragraph (2) of Act No. 34 of 2004 about the Indonesia national army does not have binding legal force; [2.2] considering that to prove the evidence if possible, the Applicant submits evidence that writing letters/marked evidence of P-1 to P-14 Evidence as follows: 1. Proof of P-1: photocopy of ID CARD on behalf of IR. Moh. Riyadi Setyarto; 2. Proof of P-2: photocopy of ID CARD in the name of Rasma; 3. Proof of P-3: photocopy of Act No. 34 of 2004 about the Indonesia national army; 4. Proof of P-4: Photocopying newspaper clippings compass, December 22, 2010, titled 50 tons of Smuggled Explosives; 5. Proof of P-5: Photocopying newspaper clippings compass, November 25, 2010, titled the fishing industry is declining; 6. P-6: evidence of Photocopying newspaper clippings Kompas, October 1, 2010, titled Indonesian fish stolen Rp 20 Trillion;

18 7. Proof of P-7: Photocopying newspaper clippings compass, April 16, 2010, titled Foreign Ship 1,000 Steal fish; 8. Proof of P-8: a photocopy of the data volume and value of fisheries production; 9. Proof of P-9: number of data on the photocopy of the ship; 10. Proof of P-10: definition of the IUU regulation data photocopy of Fishing; 11. Proof of P-11: a photocopy of the data on www.pontianakpost.com, December 22, 2010; 12. Proof of P-12: a photocopy of the data in the www.jpnn.com, September 15, 2010, issue of PT. Jawa Pos National Network; 13. Proof of P-1: photocopy of the data on www.jpnn.com, October 13, 2009, issue of PT. Jawa Pos National Network; 14. Proof of P-2: a photocopy of the data on www.tribunpontianak.co.id, October 12, 2010; [2.3] considering that in the Council of improvement of the petition March 8, 2011, the Applicant is not present in the trial though it was called officially and the Applicant filed the affidavits are sick and unable to attend the March 8, 2011 dated enclosed with the certificate of the doctor is sick; [2.4] considering that to shorten the description of this ruling, all things that happened in the trial was appointed in the News Events of the trial, and it is a unity that can not be separated with the verdict; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition of the Applicant is the test of constitutionality: • article 3 paragraph (2) which States, "in defense policy and strategy as well as administrative support, under the coordination of the INDONESIAN Ministry of Defense"; • Article 15 the number 7 which States, "giving consideration to the Secretary of Defense in the matter of the determination of the country's defense policy";


19 • Article 15 number 8 which States, "giving consideration to the Secretary of Defense in the event of assignment of TNI needs fulfillment policy and other defense components"; • Article 15 number 9 which States, "giving consideration to the Minister of defense in drafting and implementing strategic planning management of national resources for the benefit of the defence of the country"; • Article 66 paragraph (2) which States, "the purposes of the budget referred to in paragraph (1) proposed by the Department of Defense"; • Article 67 paragraph (1) which States, "in terms of the fulfillment of budget support TNI, Commander submits to the Secretary of Defense to be financed entirely from the budget of the State Expenditures and Revenues"; • Article 67 paragraph (2) which States, "in terms of the fulfillment of budget support operations is urgent, the Commander submits a budget to the Secretary of Defense to financed from budget kontijensi sourced from State Budget of revenue and Expenditure"; • Article 67 paragraph (3) which States, "the support referred to in paragraph (2) requested the approval by the Minister for defence to the House of representatives"; • Article 68 paragraph (2) which States, "the TNI is obligated to guarantee his country's defense budget management as referred to in paragraph (1) to the Minister of defence"; Act No. 34 of 2004 about the Indonesia National Army (the State Gazette of the Republic of Indonesia Number 127 in 2004, an additional Sheet of the Republic of Indonesia Number 4439) hereinafter referred to as law 34/2004 against the Constitution of the Republic of Indonesia in 1945, hereinafter called the Constitution, namely: • article 10 which States, "the President holds Supreme authority over the army, Navy and air force"; • Article 30 paragraph (2) which States, "the country's defense and security Efforts implemented through a system of Defense and security of the people of the universe by the Indonesia national army and police force of the Republic of Indonesia, as a major power, and the people, as a supporting force";

20 • article 30 paragraph (3) which States, "the Indonesia national armed forces consist of the army, Navy, and air force as a tool of the State is in charge of defending, protecting, and maintaining the integrity and sovereignty of the country"; The Applicant argued that the laws that appealed to tested the vagueness of the State Defense system that should Indonesia national armed forces organization directly under the President; [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) will first consider the following things: 1. The authority of the Court to examine, judge, and break the petition a quo; 2. The position of the law (legal standing) applicant to act as the applicant in the application for a quo; Against both, the Court held as follows: the authority of the Court [3.3] considering that under article 24C paragraph (1) of the Constitution which States, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution, severing of disputes the State agencies the Authority those powers granted by the Constitution, severing the dissolution of political parties, and hang up disputes about election results" , which is then repeated in article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (State agencies of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316, hereinafter the ACT COURT) stating, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for: a. testing legislation against the Constitution of the Republic of Indonesia in 1945" juncto Article 29 paragraph (1) letter a Act No. 48 in 2009 about The power of Justice 21 (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076) stating, the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for: a. testing legislation against the Constitution of the Republic of Indonesia in 1945 "; [3.4] considering that the applicant's plea is testing the constitutionality of norms of article 3 paragraph (2), article 15 number 7, article 3 number 8, and section 15 numbers 9, article 66 paragraph (2), article 67, paragraph (1) of article 67 paragraph (2), and article 67, paragraph (3) of article 68 paragraph (2) of law 34/2004 against article 10, article 30, paragraph (2) and article 30 paragraph (3) of the Constitution , so that the Court is authorized to inspect, judge, and break the petition a quo; The position of the law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT, the COURT may act as an applicant in testing an act against the Constitution are those who assume the right and/or authority konstitusionalnya harmed by the enactment of laws that appealed the test, that is: a. an individual citizen of Indonesia (including groups of people having the same interests); b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution, should explain and prove in advance: a. position as the applicant referred to Article 51 paragraph (1) of the ACT the COURT; b. the presence of loss of rights and/or konstitusionalnya authority given by the Constitution arising from the enactment of law petitioned testing;


22 The Applicant in the application for a quo mengkualifikasi himself as an individual citizen of Indonesia who worked as private trade in goods and services as well as labour considers the rights of konstitusionalnya impaired by the introduction of article 3 paragraph (2), article 15 number 7, article 3 number 8, and section 15 numbers 9, article 66 paragraph (2) of article 67, paragraph (1), article 67, paragraph (2) of article 67 paragraph (3) and article 68, paragraph (2) of law 34/2004; [3.6] considering that in addition the applicant must meet qualifications as mentioned above, the applicant is also obliged to elaborate clearly about konstitusionalitasnya were harmed by the enactment of legislation which petitioned testing. Since the Court Verdict Number 006/PUU-IlI/2005 dated May 31, 2005 and decision number 11/PUU-V/2007 dated September 20, 2007 and subsequent rulings, held that the loss of constitutional rights referred to Article 51 paragraph (1) of the ACT the COURT must meet five conditions, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. loss of rights and/or constitutional authority must be specific in nature (a special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the loss of rights and/or constitutional authority is the enactment of law petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.7] considering that the Applicant considers to have constitutional rights provided by article 10, article 30, paragraph (2) and paragraph (3) of the Constitution, as cited in paragraph [3.1] impaired with the introduction of article 3 paragraph (2), article 15 number 7, article 3 number 8, and section 15 numbers 9, article 66 paragraph (2) of article 67, paragraph (1), article 67, paragraph (2) of article 67 paragraph (3) and article 68, paragraph (2) of law 34/2004;

23 [2.4] considering that, according to the Applicant, article a quo prevailing on 16 October 2004 led to the Organization of the State Defense system in obscurity. With the law 34/2004 appear a real threat in the military use of warships from other parties in the Ambalat in 2005, the theft of fish, produce, including massive wood conducted foreign parties, the use of foreign ships armed by the State to arrest the Clerk Office of marine and Fisheries in the waters of Indonesia in August 2010 that violates people's constitutionality, the citizen and the nation of Indonesia including the applicant. When the petition was granted by the Court a quo, then the country's defense system will come back strong and sturdy because TNI organization will be directly under the President as stated in the Constitution, so that foreign countries and foreign citizens are reluctant to occupy the area, stealing, breaking the natural resources, and threatened the sovereignty of the Republic of Indonesia; [3.9] considering that the applicants reason against, the Court held that in testing legislation against the Constitution, required the existence of a constitutional disadvantage experienced by the applicant, either actual or potential as a result of the enactment of laws that petitioned testing. To assess the existence of the applicant's losses due to the enactment of laws that appealed the test can be measured, among other things, if the application for testing the Act granted, then the Applicant would not be constitutional harm or is no longer the case. In addition, the Court in some award as described in paragraph [2.2] have the constitutional requirement that the existence of the losses of the applicant by the enactment of such laws, in addition to actual or potential at least according to a reasonable reasoning can certainly be the case, should also be specific as well as the existence of a causal relationship (causal verband) between the applicant's losses with the enactment of law petitioned testing. The constitutional terms of losses to be experienced by the applicant against the enactment of legislation a quo; [3.10] considering that article 27 paragraph (3) of the Constitution states, "every citizen is entitled and obliged to participate in the efforts of the defence of the country"; 24 and article 30 paragraph (1) of the Constitution states, "every citizen is entitled and obliged to participate in the efforts of the defense and security of the country". This means that every citizen has the right and duty to defend the country and participate in the country's defense and security efforts. Clauses in the legislation that a test by the Applicant appealed on the point set reserved the relationship between the Indonesian armed forces and the Defense Ministry, according to the Applicant is not functioning effectively in an attempt to defend and maintain state, so the threat to the sovereignty of the country and the wealth that is in it to the detriment of the applicant as a citizen. Based on the description, the Court held that the Applicant could potentially indirectly harmed konstitusionalnya's rights as a citizen to participate in the efforts of the defence of the country as well as the defense and security of the State, so that the applicant has the legal position (legal standing); The subject matter of the petition [3.11] considering that before considering the subject matter of the petition of the Court need to cite the Article 54 of the ACT the COURT stating, "the Constitutional Court may request information and/or a treatise of the meeting concerning the petition is being reviewed to the people's Consultative Assembly, the HOUSE of REPRESENTATIVES, the regional representative Council, and/or the President." Since the article uses the word "may" then the Court should not hear the HOUSE description, DPD, and/or the President in conducting the testing of an act. In other words, the Court can ask or not ask for information and/or a treatise of the meeting concerning the petition is being reviewed to the people's Consultative Assembly, the HOUSE of REPRESENTATIVES, the regional representative Council, and/or the President, depending on the urgency and relevance. Because of legal issues in the petition for a quo was clear, then the Court viewed the no urgency and relevance to request information and/or a treatise of the meeting of the people's Consultative Assembly, the HOUSE of REPRESENTATIVES, the regional representative Council, and/or the President, so the direct Court consider and then disconnect the petition a quo without requesting information from the institutions of the State in question;


25 [3.12] considering that the articles that are appealed by the Applicant testing, substantially set up tata Indonesia national armed forces organization which is the policy of the law open (opened legal policy) of the creation of the legislation in this case is the HOUSE together with the President. The arrangements put the management of defence administration support to the Ministry of defence which is also the organizational units that directly help the implementation of the duties of the President. Thus, the evidence of the Applicants that the TNI should be directly under the President is not right nor reduce the effectiveness of the role and function of its substance simply because the Defense Ministry to take care of problems such as administrative support against the TNI. As for the role and function of the effectiveness regarding its substance remains under the command of the President of the hierarchical order of the organization. Even the Supreme Commander in the AIR FORCE deployment to combat operations directly held by the President. More than that TNI Commander assignment must be a consideration of PARLIAMENT and Declaration of war should be with the approval of PARLIAMENT; [3.13] considering that the existence of the Defense Ministry is the Ministry that is explicitly mentioned in the Constitution [vide article 8 paragraph (3)] the constitutionally has to do with the existence of the AIR FORCE as set forth in article 30 paragraph (2) of the Constitution because the two organizational units the Government equally has the basic tasks in the field of defence, especially the sovereignty of the country. Therefore, the settings of the organisatoris relationship between the two organizational units of government legal policy is open (opened legal policy) that can be set by the founding legislation as has been envisaged above; [3.14] considering that the Applicant postulated that violations of sovereignty over the territory of the Republic of Indonesia in the form of, among other things, theft of fish, timber theft, theft of other natural resources, the outermost islands occupation by foreign countries is caused by the introduction of article 3 paragraph (2), article 15 number 7, article 3 number 8, article 15 number 9, article 66 paragraph (2), article 67, paragraph (1) of article 67 paragraph (2) Article 67, paragraph (3), and article 68 paragraph (2) of law 34/2004, according to the Court, the evidence for the applicants is not appropriate because the 26 no kausalitasnya, but only the relations are co-accident only, there is no evidence, and based solely on the assumption the Applicant. Thus the evidence for these applicants is unwarranted under the law; [3.15] considering that on the basis of the above considerations, the Court held evidence-evidence the Applicant is not justified in law; 4. CONCLUSION based on the above assessment of the facts and the law as outlined above, the Court concluded that: [4.1] the Court is authorized to inspect, judge, and break the petition a quo; [2.6] The applicant has legal position (legal standing) to propose a quo pemohonan; [4.3] the postulates of the Applicant in the subject matter of the petition is unwarranted; Based on the Constitution of the Republic of Indonesia in 1945 and Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316), as well as Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, additional Sheets Sheet country number 5076). 5. AMAR'S RULING Judge, stating the applicant's application to reject in their entirety; The case was decided in the meeting of the provisional Judges by nine Justices the Constitution namely the Moh. Mahfud M.D. as Chairman and interim 27 Member, Achmad Sodiki, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim, Usman Anwar, Hamdan Zoelva, Maria Farida Indrati, and m. N Deputy Mochtar, each as a member, on Wednesday the date four months of may of the year two thousand and eleven spoken in plenary session open to the public on this day also, the Wednesday date four months of may of the year two thousand and eleven , by nine Judge Constitution i.e. Moh. Mahfud M.D. as Chairman and Member, Achmad Sodiki, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim, Usman Anwar, Hamdan Zoelva, Maria Farida Indrati, and m. N Deputy Mochtar, each as a member, accompanied by Ida Ria Tambunan as Substitute Clerk, and attended by the Applicant, the Government or representing, as well as the House of representatives or representing. Chairman, ttd. MOH. Mahfud Md. Members, ttd. Achmad Sodiki ttd. Ahmad Fadlil Sumadi ttd. Harjono ttd. Muhammad Alim ttd. Usman Anwar ttd. Hamdan Zoelva ttd. Maria Farida Indrati ttd. M. N Deputy CLERK of the surrogate, Mochtar ttd. Ida Ria Tambunan  

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