Key Benefits:
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F
VERDICT
NUMBER 9/PUU-IX/2011
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examined, Prosecute, and severing constitutional matters at the first and last level, dropping the verdict in Test application case
Act No. 34 of 2004 on the Indonesian National Army
against the Act The Constitution of the Republic of Indonesia in 1945 which
was submitted by:
[1.2] 1. Name: Moh. Riyadi Setyarto;
Places/date born: Madiun, 14 November 1972; Job: Private, trade goods and services; Address: Haryono Street I Number 35, Market Friday,
Kelurahan Pondok Pinang, South Jakarta;
2. Name: Rasma A. W; Place/date born: Jakarta, 21 March 1963; Work: Labour;
Address: RT 02 /RW 01, Kelurahan Marunda Cilincing,
North Jakarta;
Next is called as ---------------------------------------------------------------------------------------------------------------------------------------------------------------- The applicant;
[1.3] Reading a request from the applicant;
Hearing the caption from the applicant;
Checking the petitioners written;
2. SITTING LAWSUIT
[2.1] A draw that the petitioners have applied with
the petition letter is dated December 20, 2010, which is accepted in
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The Supreme Court of the Constitutional Court (subsequently called the Constitutional Court
Constitution) on Monday 27 December 2010 and was corrected on the day
Monday 7 February 2011 registration The number 9/PUU-IX/2011, which
at the bottom of it:
The authority of the Constitutional Court
1. That under the provisions of Article 24C paragraph (1) of the Basic Law
Republic of Indonesia in 1945 (subsequently called UUD 1945) juncto Article
10 verses (1) letter a Act No. 24 of 2003 on
The Constitution (later called the MK Act) states that
one of the powers of the Constitutional Court is to conduct testing
legislation against the 1945 Constitution;
2. In Article 7 of the Law No. 10 of 2004 on
The formation of the Laws (later called the Act
10/2004) stated that the hierarchy of the Constitution of 1945 was
higher than that of legislation and if there is a provision
in legislation contrary to the 1945 Constitution then the provisions
it may be expected to be tested through an invite-
test mechanism;
3. Based on the above, the petitioners argue that
The Constitutional Court is authorized to examine and disconnect
the application for testing this legislation;
II. Legal Position (Legal Standing) The Petitioner
1. That Article 51 paragraph (1) of the Act of MK states that the applicant is a party
that considers the right and or its constitutional authority be harmed
by the enactment of the law in the letter a mention
the individual of the citizen Indonesia;
2. In an explanation of Article 51 of the paragraph (1) the Act of MK is said to mean
with the constitutional right being the rights set forth in the Constitution of 1945;
3. That in conjunction with this plea that the applicant
confirms that the applicant has constitutional rights
in the 1945 Constitution is set up:
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3.1. That our predecessors since the Independence Proclamation of August 17
1945, stated in the opening of the 1945 Constitution of paragraph 2, " ushered
the people of Indonesia to the door of the country's independence gate
Indonesia which free, united, sovereign, fair and prosperous ",
so the form of an independent, united,
sovereign, fair, and prosperous nation is our right to all as a people
Indonesia, including also the petitioners;
3.2. That the applicant has the right arising from the obligation
of the Indonesian State government as listed in the Opening of the Constitution
1945 alinea 4, " .. protect all the Indonesian nation and all
spill blood Indonesia .. ", which is to get protection in
together as one cosmological unity of all living things
and bodies dead and individually, so that objects
purbakala is also protected, let alone region, land, air, and water that
adheres to its existence with the Indonesian nation as well as what only that
is in it is required to be protected, so that the violation of the region,
theft of natural wealth or the takeover of an area of land
or water by a foreign party means to also violate the rights of the people of Indonesia;
The preamble to the opening of the 1945 Constitution also means any people
Indonesia is entitled to the protection of the State Government
Republic of Indonesia;
3.3. That the people of Indonesia, including the petitioners, have the right
sovereignty in the State of Indonesia as listed in the 1945 Constitution Article 1
paragraph (2), i.e. " Sovereignty is in the hands of the people and exercised
according to The Basic Law ", in which the territory of the State of Indonesia
is listed in Article 25A of the 1945 Constitution, that is " Republic of the Republic of the Republic
Indonesia is an archipelago-characterized island nation
with territory which The boundaries and rights are set with
legislation ". If there is any foreign parties in violation of territory
The State of the Republic of Indonesia means also violating the rights of sovereignty
the people of Indonesia in the dimension of the place;
3.4. That the applicant has such safe rights as listed in
Article 28G of the Constitution of 1945, that is, " Everyone is entitled to self-protection
personal, family, honor, dignity, and property that is below
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its power, as well as the right to feel safe and protection from
the threat of fear to do or does not do something
is a fundamental right ". If there is any smuggling or entry
illegal explosives in large quantities to the State region
Republic of Indonesia, of course this provides a security threat to the citizens
the country of Indonesia as well;
3.5. That the applicant has the right to gain passage
the prosperity of the earth, water, and natural wealth in Indonesia as
the people of Indonesia as it is written in Article 33 of the paragraph (2) of the 1945 Constitution, " Earth,
the water and the wealth of nature It is contained in it controlled by
state and used for the great prosperity of the people ".
So that if there is theft of the proceeds of the earth or fish by a foreign party
means it is to reduce the right to get A part of prosperity that
should be obtained by the petitioners. A reduction of a right to
illegal means also a violation of that right;
3.6. That the applicant has the right to be listed in Article 27 of the paragraph
(2) of the 1945 Constitution, "The individual citizens are entitled to the work and
A viable livelihood for humanity";
3.7. That the applicant has rights as listed in Article 28A
of the 1945 Constitution, "Everyone has the right to live as well as the right
retains life and life";
3.8. The applicant has the right to self-develop
through the fulfillment of its basic needs in order to improve the quality of
his life and for the welfare of the human race, in accordance with Article
28C paragraph (1) of the 1945 Constitution, " Every man entitled to develop
through its basic needs, entitled to education
and benefits from science and technology, art,
and culture, in order to improve the quality of life And for the sake of
the welfare of the human race ";
3.9. The right to obtain protection from the government that
is obligated to protect, advance, and fulfill the rights
the human as set in Article 28I paragraph (4) of the 1945 Constitution is,
"Protection, submission, enforcement, and protection of the human rights". and basic rights fulfillment
humans are the responsibility of the State especially the government ";
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Massive theft of fish or earth results which the
foreign causes the petitioners did not get sufficient results
to be able to meet its needs so that the applicant ' s right
in Article 27 of paragraph (2), Article 28A, and Article 28C paragraph (1), as well as the Article
28I paragraph (4) of the Constitution of 1945, such as that above are broken;
4. That from the explanation of the number 3 above the soot is that there are nine rights
constitutionality in the 1945 Constitution which contains constitutional rights
The applicant is broken by the passage of the provisions of a quo;
5. That under the Constitutional jurisprudence of the Constitutional Court in accordance with the Verdict
Number 006 /PUU-III/2005 and No. 11 /PUU-V/2007 about the rights loss
the constitutional must meet 5 terms, namely:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. the rights and/or of such a contittional authority by the applicant are considered
aggrieved by the enactment of the testing laws;
c. The constitutional loss must be specific (special) and actual
or At least some of the potential, which according to reasonable reasoning could be
is confirmed to be;
d. the presence of a causal link between the intended harm and the entry
legislation is motdown to test;
e. It is possible that with the request of a request,
The constitutional loss as postulate will not or may not occur
again;
From its previous explanation, the letter a and letter b are already fulfilled;
6. That a specific (special) and actual or
constitutional loss is a potential that according to reasonable reasoning can be
ascerable to the following:
6.1. In the months
February 2005, foreign military vessels entered the sea region
Republic of Indonesia in Ambalat and incident with the Indonesian Navy ship
and the arrests of employee arrest. Naval and Fisheries Service in
the marine area of the Republic of Indonesia in the Riau Islands by ship
armed foreign country in August 2010;
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6.2. That foreign country claim to Ambalat since 2005 was
until now it has not been revoked, so it is a threat
real;
6.3. That in the area of Ambalat there is a reserve of migas block Ambalat
that is worth trillions of rupiah;
6.4. That in the Riau Islands area where events
arrests the Marine Service employee and the Fisheries
there is a very large marine richness;
6.5. That event in Ambalat as well as the foreign country's claim to
now and the events in the sea of the Riau Islands caused
a loss for the petitioners:
a. The loss of not getting a united states and
sovereign, as in paragraph 2 of the opening of the 1945 Constitution,
" deliver the Indonesian people to the front of the gate
independence of the independent State of Indonesia, united,
sovereign, fair and prosper. " A fair and prosperous nation
still requires a process but a united states and
sovereign must have been realized since independence;
b. The loss of an Indonesian nation that is violated
borders or threatened its territorial integrity. The rights
that constitutional is granted by paragraph 4 Opening of the Constitution
1945, ".. an Indonesian state government protecting
all Indonesian and all Indonesian blood spills";
c. The loss of the applicant who has sovereign rights
as the Indonesian people in the State of Indonesia as listed
in Article 1 of the paragraph (2) of the 1945 Constitution, " Sovereignty is in
the hand of the people and exercised according to The Basic Law ",
where the territory of the State of Indonesia is listed in Article 25A
Constitution of 1945 i.e., " The Republic of the Republic of Indonesia is
a State of the archipelago that is characterized by the region
whose boundaries and rights are set to be invited-
invite ". If any foreign parties are in violation of territory
The Republic of Indonesia means also violating the rights
sovereignty of the Indonesian people in the dimension of the place;
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6.6. That the loss inflicted by the events in Ambalat as well as the claim
the foreign country is up to now and the events in the Riau Islands sea
as well as the violation of the accompanying region is a loss that
is specific because This is a specific type of event.
The event was not a common occurrence, ordinary, and
could be tolerated;
6.7. That event in Ambalat in 2005 and that foreign country claim
from 2005 to present and the events in the sea of the Islands
Riau in 2010, is the case since Law Number 34
2004 Year of the Army National Indonesia is in effect, and it has not been
there has been a threat to such a country's defence in
in previous years since Indonesia became independent;
6.8. Other constitutional losses were losses due to the fact of entry
ships from other countries carrying explosives
as many as 50 tons of 50,000 kg (illegal ) illegally being sent to
a city in Sulawesi, where it is used to be a third party in the United States. and the ship was caught at sea in
a voyage by customs officers in an operation, December
2010, as was reported in the mass media. This does not close
the possibility of any other explosive carriers that
escaped capture;
That the presence of a ship carrying explosives in the amount
is very large illegal of the region Other countries then entered
to the territory of Indonesia and sent to a city, causing the loss
constitutional as follows:
a. The declining sense of safety for Indonesian citizens including
The petitioners, while Article 28G of the 1945 Constitution mentions,
" Everyone is entitled to personal protection, family,
honor, dignity, and property of the object below
his power, as well as entitled to a sense of security and protection
of the threat of fear to do or do not do something
which is a birthright ". If there is smuggling or
illegal entry of explosives in large quantities to
territory of the Republic of Indonesia, it certainly provides
security threats to Indonesian citizens due to the material
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The explosive is 50 tons heavy can be detonated anywhere
up to 5,000 locations by an irresponsible person.
For example, the second explosion at JW Marriot, Kuningan, Jakarta,
is enough with 5 kg up to 10 kg of explosives. Rights
the safe sense of the applicant is clearly harmed;
b. The right to obtain protection as listed in alinea
4 Opening of the 1945 Constitution is, "a government of the State
Indonesia that protects all Indonesian nations and
all Indonesian blood spills" threatened;
6.9. That the loss inflicted by the entry of the ships
illegal explosives carriers to Indonesia was a loss
which was specific because it was a type of occurrence that
was specific. The event is not a common occurrence,
ordinary, and can be tolerated. This happens after the enactment of the Invite-
Invite Number 34 of 2004 on the Indonesian National Army
(subsequently called Act 34/2004);
6.10. That the above constitutional losses were specific and
in accordance with the Constitutional jurisprudence of the Constitutional Court in accordance with the Decree
Perkara Number 006 /PUU-III/2005 and No. 11 /PUU-V/2007 on
the loss of constitutional rights, as well as the in accordance with the Supreme Court of Justice
Constitution Number 22/PUU-VI/2008, with the Applicant Moh. Soleh
which is the loss of Moh. Soleh is also felt by citizens
other Indonesian states or caleg others, though
they do not give power to Moh. Soleh to submit
pleas to the Constitutional Court;
6.11. That the constitutional loss relates to the Act
34/2004 because of the explanation of Article 7 of the paragraph (1) the letter g is mentioned,
" security threat in the sea or air of Indonesia's national jurisdiction,
which the party does. certain, can be:
1. Piracy or piracy;
2. Smuggling of weapons, ammunition, and explosives or materials
others that could harm the nation ' s safety;
3. Illegal fishing or theft of wealth at sea. "
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6.12. In addition to the above, there are other facts supporting the filing
this material, namely a constitutional loss due to the theft of fish
in the sea by foreigners or foreign fishermen who according to Food and
Agriculture Organization, subsequently called FAO-an organization
official of United Nations or commonly called the UN, where the State
Indonesia became a member, calling it the theft of fish in
the sea of Indonesia, reaching 30 trillion a year. FAO data is published in
official magazine Capture Fisheries of the Ministry of Oceans and
Fisheries of the Republic of Indonesia, volume 1, number 4, 2010;
6.13. That the theft of fish and sea results by foreign fishermen occurred in the
large jumah of the Republic of Indonesia in the Economic Zone
Exclusive as well as within the sea boundary 12 miles from the coastline as
revealed by H. Seeds of Waluyo, Governor of Central Java, loaded in
mass media Capture Fisheries of the Ministry of Oceans and
Fisheries of the Republic of Indonesia;
6.14. That massive fish theft by a foreign fisherman was
involving the use of tiger trawls, fish bombs, as well as ships
medium-sized and medium-sized ones to be one of the causes
the decline of a percentage of fish production increases. capturing nationwide, which is
since 2005 a rise of only 1.34% compared to the previous year
2.48%. The total number of ships has been increased by 3%. The amount
Indonesia's population is up 1.5% per year;
It also makes a decrease in the revenue of each ship as well as the price
the average fish becomes a rise;
6.15. That from the above facts makes losses for fishermen, workers
fishermen, serabutan workers in the marine fisheries sector, citizens who
live in coastal areas whose economic cycle is related
with the sea yield, traders and sea results, entrepreneurs that
relate to the sea results, the businessman in touch
with the ship and its agility, as well as the fish consumer society
the sea, including the petitioners;
6.16. That the above loss is a specific loss due to the specific
action, which is the theft of an increased sea fish that
is a result of the application of the provisions of a quo, which gave
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greater opportunities and opportunities to foreigners or countries
foreign to violate the territory of the Republic of Indonesia because of the organization
the country's defense changed since 2004;
6.17. In addition to the above, there are other facts supporting the test filing
This material, which is a constitutional loss due to the theft of wood
which increases to be sent abroad across the border
in secret. nor blatant but without permission
that is done by a stranger;
6.18. That loss of wood theft and timber shipment overseas
without such permission was a lack of timber supply in the country,
not the stability of the supply and tended to descend, as well as the price of wood that
increased. This led to many merchants and businessmen
a small wooden roll mat;
6.19. That the constitutional losses due to increased timber theft
were suffered by domestic timber merchants, wood entrepreneurs
in the country, wood users for home construction purposes
or renovation, as well as owners a home or building that uses
wood, including the petitioner;
6.20. That the constitutional loss was due to sharing the theft of fish, the results
the sea, as well as the wood violates the constitutional rights it belongs to
the applicant is:
a. That the applicant has the right to gain passage
the prosperity of the earth, water, and natural wealth in Indonesia
as the Indonesian people are spurted in Article 33 of the verse (2)
Constitution of 1945, " Earth and water and the wealth of nature contained in
it was controlled by the state and used for the size of-
great prosperity of the people. " If there is theft of the outcome of the earth
or fish by a foreign party means taking down the right
get The part of prosperity that should be obtained by
the petitioner. An illegal entitlement reduction means also
a violation of that right;
b. That the applicant has the right to be listed in Article
27 paragraph (2) of the 1945 Constitution, "The citizens of the country are entitled to
the job and the livelihood that is worthy of humanity";
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c. That the applicant has the right to be listed in
Article 28A of the 1945 Constitution is, "Everyone has the right to live
and is entitled to maintain life and life";
d. That the applicant has the right to develop
self through fulfillment of its basic needs in order to improve
the quality of his life and for the welfare of the human race, accordingly
Article 28C paragraph (1) of the 1945 Constitution, " Everyone is entitled
develop yourself through the fulfillment of its basic needs,
deserves an education and benefit from science
knowledge and technology, arts and culture, for the sake of improving
quality her life and the welfare of the human race ";
e. The right to obtain protection from a government that
is obligated to protect, advance, and fulfill the rights
human rights as set forth in Article 28I paragraph (4) of the Constitution
1945 i.e., " Protection, submission, enforcement, and
The fulfillment of human rights is the responsibility of the State
especially the government ";
The theft of fish or the proceeds of the earth includes the wood in large-
the magnitude of the foreign parties caused the petitioners
not getting enough results to be able to meet
the requirement that the applicant's right in Article 27 paragraph
(2), Article 28A, and Article 28C paragraph (1), as well as Article 28I paragraph (4)
Constitution of 1945, such as it is above the breach;
7. That the facts that resulted in the constitutional loss
occurred or increased after 2004 and are closely related to
the country ' s defense aspect;
8. That clause a quo valid from October 16, 2004, causes
the obscurity of the system of state defense organizations;
9. That the vagueness of the country's defense organization system is also
as evidenced by the application of the Commander in Chief of the TNI at the time
that when the Draft Act on the Indonesian National Army this
will be passed be undang-Undang;
10. That the petitioners assumed the constitutional rights of the applicant
set in the 1945 Constitution as described above have been harmed
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with the enactment of Article 3 of the paragraph (2), Section 15 of the paragraph (7), paragraph (8), paragraph (9),
Section 66 of the paragraph (2), Section 67, and Section 68 of the paragraph (2) Act 34/2004 which
has given greater chances and opportunities to the foreign countries and
foreign nationals and/or make them more courageous to:
-breaking territory and trying to control parts of Indonesia
as well as the natural resources contained therein, in
where there is the rights of the Indonesian people including the petitioners for
gain its benefits or prosperity from him;
-violates the sovereignty of the Republic of Indonesia to steal the results
the earth includes fish in the territory of the Republic of Indonesia, where the results of the Earth
include the fish is the source of the applicant's livelihood;
- Smuggling explosives on the border in large numbers that
threatens the Indonesian citizens we don't know when and at
where it will explode;
And territorial violations, theft of natural wealth, and smuggling
The explosives clearly violated the constitutional right as a people,
citizens country, and the nation of Indonesia;
And the breach of territory and theft it is already underway and still
ongoing to date;
In addition, since the enactment of this law in 2004, there appears a threat
real military, i.e., the use of warships from other parties appears
as in Ambalat in 2005, which we equally know, as well
the use of armed vessels by foreign countries to capture officers
The Marine Service and the Fishing in Indonesian waters, in August 2010,
that clearly violates constitutional rights the people, the citizens, and the nation
Indonesia includes the Applicant;
11. That if this material test application is granted by the Court, then
the country's defense organization system will be back firmly and strong because
the Indonesian National Army organization will be directly under the President
in all things, as listed in the 1945 Constitution, and about
state defense outlined in Act Number 3 of 2002
about the State Defense, then this would lead to foreign countries and
foreign nationals are reluctant to occupying, breaking territory, stealing
the wealth of nature, and threatening the sovereignty of the Republic Indonesia;
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III. REASON FOR A. Norma-Norma Constitution 1. That Article 3 paragraph (2) of the Act 34/2004 is contrary to norms
in the provisions of the Constitution of 1945 as follows:
1. Article 10 of the Constitution of 1945 stated: "The President holds the power
the highest of the Army, Navy and Air Force";
2. Article 30 of the paragraph (2) of the Constitution of 1945 which states, " Defense efforts and
state security is exercised through the defense and security system
The universes by the Indonesian National Army and the State Police
Republic of Indonesia, as the main force, and the people, as
support powers ";
3. Article 30 of the paragraph (3) of the Constitution of 1945 which states, " National Army
Indonesia is composed of Army, Navy, and Force
The air as a State tool is in charge of maintaining, protecting, and
maintaining the integrity and sovereignty of the State ";
2. As for Article 3 of the paragraph (2) of the Act 34/2004 as follows, " In policy
and the defense strategy as well as administrative support, TNI below
Defense Department coordination;
3. That later section Description Section 3 paragraph (2) Act 34/2004
explains, " Which is under the coordination of the Department
The defense is everything related to planning
the strategic Includes aspects of state defense management, policy
budgeters, procurement, recruitment, national resource management,
and defense industry technology coaching required by the TNI and
other defense components, while coaching the forces of the TNI
relating to education, exercise, force preparation, military doctrine
resides in the Commander of the Armed Forces with the assistance of the Chief of Staff of the Force.
In order for the achievement of effectiveness and efficiency of defense management
the country, in the future the TNI institutions are within the Department
Defense ";
4. That it is thus clear that Article 3 of the paragraph (2) of Act 34/2004 a quo
is contrary to the norms of Article 10, Article 30 of the paragraph (2), and Article 30 of the paragraph
(3) of the 1945 Constitution;
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5. Even in the Description of Section 3 of the paragraph (2) Act 34/2004, paragraph 2,
states:
" In order for the achievement of the effectiveness and efficiency of defense management
the country, in the future the TNI institutions are in place. In the Department
Defense ";
Then it is further clear the disagreement of Article 3 of the paragraph (2) Act 34/2004 against
the norms in the provisions of the Constitution of 1945;
6. That Article 3 paragraph (2) of the Act of 34/2004 is contrary to the reasoning line
or analogy that puts the State Police of Indonesia
directly under the President when the Republic of the Republic of State Police
Indonesia in The Act No. 2 of 2002 took the article
equal to the position of the TNI which is from Article 30 of the 1945 Constitution and
contains a charge of equal standing in verse (1) and in
paragraph (2), and paragraph (3) contains meaning word and same sentence,
just different functions where policing in the field of security and Army
National Indonesia in defence field;
7. That then, if reviewed all state institutions, which are set in the Constitution
1945 by recalling its importance and function, nothing
the second level of the Directorate General of a department or
ministry. State Institute that is governed by its existence in the 1945 Constitution,
that is, the People's Consultative Assembly, President and Vice President, Council
People's Representative, Ministry, General Election Commission, Bank Indonesia,
The Financial Examiner Agency, Supreme Court, Constitutional Court,
Judicial Commission, and the State Police of the Republic of Indonesia;
Then it becomes a very strange thing when the Indonesian National Army
its position under a ministry or department;
So it is very clear the conflict of Article 3 of the paragraph (2) Act 34/2004 with
UUD 1945;
7. That if reviewed by the State of the Republic of Indonesia since 1945
up to 2004, there has never been a position of organization
the army is not under the President;
8. That if we review the opening of the 1945 Constitution, it is clear and clear
The importance of the Indonesian Government's duties is, "protecting all
the Indonesian nation and all of Indonesia's blood", so that it
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indicated in Article 10, Section 30 of the paragraph (2), and Article 30 of the paragraph (3) of the 1945 Constitution is
something very important and vital;
9. Even in the Pancasila which is the basis of the state and listed
in the opening of the 1945 Constitution mentions the Indonesian Union at points
third, which the Indonesian union requires defence and
security for the nation and country to remain intact and united. Padmo
Wahyono and Hamid S. Attamimi, as quoted by Prof. Dr. Jimly
Asshidiqie, S.H., MA., called Pancasila as the basis for the state to be
as the highest legal source;
10. That if reviewed from the 1998 reform spirit, the state reform
for the military has been realized by the separation of the Indonesian National Army
and the Police, for the authority in the field of defense and security, which
is confirmed. with TAP MPR VI in 2000 and TAP MPR VII in 2000,
and the existence of the Defense and Police Act
States, as well as the inclusion of the laws on human rights in the Constitution
1945, which the Constitution of 1945 is basic of any actions of the Army
National Indonesia;
11. That if reviewed on the allegations of human rights violations
(human rights), it cannot be made a reason to sacrifice
the sovereignty of the nation and state, in what is the accusation
of human rights violations. occurred prior to the start of the articles on
human rights in the 1945 Constitution and it was carried out by an ocnum;
12. That it is thus clear that Article 3 of the paragraph (2) of the Act 34/2004 is
not in accordance with the 1945 Constitution as well as the conditions of the nation and State of Indonesia,
let alone the State of the Republic of Indonesia made up of many islands,
surrounded by The oceans, with a territorial extent of over 2 million square kilometers with
its natural wealth as well as flanked by two continents and two vast oceans;
13. Thus it is clear that Article 15 of the 34/2004 Act on Duty and
Commander's Liability, which reads:
paragraph (7): " Gives consideration to the Minister of Defense in terms
The establishment of defence policy Country ";
paragraph (8): " Gives consideration to the Minister of Defense in terms
establishment of policy fulfillment policy requirements and components
other defence ";
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paragraph (9): " Provides consideration to the Minister of Defense in
compiling and executing strategic planning of the management
national resources for defence interests Country ";
is not in accordance with Article 10, Section 30 of the paragraph (2), and Article 30 of the paragraph (3)
Constitution of 1945;
14. That is thus clear, that Article 66 paragraph (2) of the Act 34/2004, that is:
"The budgeting purposes as referred to in paragraph (1) are submitted by
Department of Defense";
contrary to Article 10, Article 30 of the paragraph (2), and Article 30 paragraph (3) of the UUD
1945;
15. That Article 67 of the Act 34/2004, that is:
" (1) In terms of the fulfillment of the budget support of the TNI, the Commander submitted
to the Secretary of Defense for the full financing of the Budget
Revenue and State Shopping.
(2) In terms of the fulfillment of military operating budget support
urgent, the Commander submitted a budget to the Minister of Defense
to be financed from the conference budget Sourced from Budget
State Shopping Revenue.
(3) Support as referred to in paragraph (2) is asked for approval
by the Secretary of Defense to the House of Representatives ";
is in conflict with Article 10, Section 30 of the paragraph (2), and Article 30 of the paragraph
(3) The Constitution of 1945;
16. That is thus clear that Article 68 paragraph (2) of the Act of 34/2004, that is:
"TNI is required to account for the management of the defense budget
the country as referred to in paragraph (1) to the Secretary of Defense";
is conflicting with Article 10, Section 30 of the paragraph (2), and Article 30 of the paragraph
(3) of the 1945 Constitution;
17. That there is something to remember that the House approval for
Draft Act 34/2004 when it was done a few hours before the para
members of the 1999-2004 Period House commissioner, where much happened
the turnover of the House members and the The composition of the fraction changes totals, and is passed
by President Megawati, on Saturday 16 October 2004, and the 20th
October 2004, the new President is officially inaugurated;
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B. In such a case the Constitutional Court is obliged to run its embed duty mandated by the Constitution of 1945 that the Constitutional Court
is the guardian of constitution and the final The interpreter of the constitution.
Therefore based on the above description, the Assembly of Judges of the Constitutional Court
is expected to receive and grant the entire application of this material test;
IV. PETITUM
Based on those things above, the applicant pleads to the Assembly
The Constitutional Court of Justice to examine and break the plea
testing this as follows:
1. Accept and grant all requests for this material test;
2. Article 3 of the paragraph (2), Article 15 paragraph (7), paragraph (8), paragraph (9), Article 66
paragraph (2), Section 67, and Section 68 of the paragraph (2) Act No. 34 of the Year
2004 on the Indonesian National Armed Forces in conflict with the 1945 Constitution;
3. Declaring Section 3 (2), Section 15 of the paragraph (7), paragraph (8), paragraph (9), Article 66
paragraph (2), Section 67, and Section 68 of the paragraph (2) Act No. 34 of the Year
2004 on the Indonesian National Armed Forces has no legal force
binding;
[2.2] Draw that to prove its control, the applicant
submits a letter/writing tool that is given the proofs of the P-1 until the Proof P-14
as follows:
1. Proof of P-1: Photocopy KTP on behalf of Ir. Moh. Riyadi Setyarto;
2. Proof P-2: Photocopy of KTP in the name of Rasma;
3. Evidence P-3: Photocopy Act No. 34 of 2004 on
The Indonesian National Army;
4. Proof P-4: Photocopy of Kompas newspaper clippings, dated December 22, 2010,
titled 50 tons of Smuggled Explosives;
5. Evidence P-5: Photocopy of Kompas newspaper, dated November 25, 2010,
entitled The Fisheries Industry,
6. Evidence P-6: Photocopy of Kompas newspaper clippings, dated October 1, 2010,
entitled indonesian fish stolen Rp. 20 trillion;
18
7. Evidence P-7: Photocopied newspaper Kompas, dated 16 April 2010, titled
1,000 Foreign Ship Curi Fish;
8. Evidence P-8: Photocopies of volume data and the value of fishery production;
9. Evidence P-9: Photocopied data on the number of fishermen on board;
10. Proof P-10: Photocopy of the regulatory data definition IUU Fishing;
11. Evidence P-11: Photocopied data on www.pontianakpost.com, December 22,
2010;
12. Evidence P-12: Photocopied data on www.jpnn.com, dated 15 September 2010,
published PT. Jawa Pos National Network;
13. Evidence P-13: Photocopied data on www.jpnn.com, dated October 13, 2009,
published PT. Jawa Pos National Network;
14. Evidence P-14: Photocopy of data on www.tribunpontianak.co.id, October 12,
2010;
[2.3] A draw that in the trial of reparations from the 8th
March 2011, the applicant is not present in the trial even though it has been
Officially and the petitioners filed a sick letter and
cannot be present dated March 8, 2011 attached to the caption letter
is sick of the doctor;
[2.4] weighed that to shorten the verdict this, everything
something that happened at the trial was appointed in the News Event The trial, and
is one unbreakable unit with the ruling;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant ' s plea
is to test the constitutionality:
Article 3 of the paragraph (2) stated, " In defence policy and strategy
and Administrative support, TNI under the coordination of the Department
Defense ";
Article 15 of the 7 which stated," Provide consideration to
the Secretary of Defense in terms of the establishment of the country's defense policy ";
19
Article 15 of the figure 8 stating, "Gives consideration to
Defence minister in terms of establishing the policy fulfillment policy
and other defense components";
Article 15 of the figure 9 which states, "Provide consideration to
the Minister of Defense in compiling and executing the planning
strategic national resource management for the defense interest
country";
Article 66 of the paragraph (2) which stated, " The budget needs as
referred to a paragraph (1) is submitted by Department of Defense ";
Article 67 paragraph (1) stated," In terms of the fulfillment of support
TNI budget, the Commander submitted to the Secretary of Defense for
financed entirely from the State Budget and Shopping Budget ";
Article 67 paragraph (2) that states, " In terms of the fulfillment of support
the budget of the military operation is urgent, Commander-in-Chief submitted
budget to the Secretary of Defense for the financed of the conference budget
sourced the Country ' s Revenue and Shopping Budget ";
Article 67 paragraph (3) Stating, "Support as stated in
paragraph (2) is requested by the Secretary of Defense to the Board
People's Representative";
Article 68 paragraph (2) states, " TNI is required to be accountable
state defense budget management as referred to in paragraph
(1) to the Minister of Defense ";
Act No. 34 of 2004 on the Indonesian National Army
(State Sheet of the Republic of Indonesia in 2004) Number 127, Supplement
sheet of state of the Republic of Indonesia No. 4439) next called the Act
34/2004 against the Constitution of the Republic of Indonesia in 1945,
The next one is called UUD 1945:
Article 10 stating, " The president holds the highest power
over the Force Land, Navy and Air Force ";
Article 30 verse (2) states," The defense and security efforts of the country
are exercised through the defense and security system of the universes by
The Indonesian National Army and the State Police of the Republic of Indonesia,
as the main force, and the people, as a force supporters ";
20
Section 30 of the verse (3) states, " The Indonesian National Army is made up
Army, Navy, and Air Force as a tool of the country
in charge of maintaining, protecting, and maintaining And
state sovereignty ";
That the Petitioners are running the bill
to test it leads to the vagueness of the defense organization system
the country that the Army should be organizing National Indonesia directly
under the President;
[3.2] weighed that before consider the subject of,
The Constitutional Court (later called the Court) first will
consider the following things:
1. The Court ' s authority to examine, prosecute, and disconnect
plea a quo;
2. Legal standing (legal standing) The applicant to act as the applicant
in the plea a quo;
Against those two, the Court argued for the following:
The authority of the Court
[3.3] Considering that under Article 24C of the paragraph (1) of the Constitution of 1945 that
states, " The Constitutional Court is authorized to judge at the first level
and the last of its verdict is final to test the legislation
against the Basic Law, severing the institution ' s authority dispute
country whose authority is provided by the Basic Law, disconnect
the dissolution of the political party, and severing the dispute about the outcome of the election
general ", which is then repeated again in Article 10 of the paragraph (1) letter a Invite-
Invite Number 24 Year 2003 on Constitutional Court (State Institute
The Republic of Indonesia Year 2003 Number 98, Additional Republican Gazette
Indonesia Number 4316, subsequently called Act MK) stated,
" Constitutional Court authorized to prosecute at first and last level
whose verdict is final to: a. test of legislation against Invite-
Invite Basic State of the Republic of Indonesia Year 1945 " juncto Article 29 paragraph (1)
letter a Law Number 48 Year 2009 on the Power of Justice
21
(sheet state of the Republic of Indonesia in 2009 number 157, additional
sheet state of the Republic of Indonesia Number 5076) stated, The court
Constitution authorized to judge on first level and last
The verdict is final for: a. test of legislation against the Invite-
Invite the State of the Republic of Indonesia in 1945 ";
[3.4] Balanced that the applicant's plea is testing
the constitutionality of the norm Article 3 verse (2), Article 15 of 7, Section 15 points 8, and
Article 15 of the number 9, Section 66 of the paragraph (2), Section 67 of the paragraph (1), Section 67 of the paragraph (2), and
Section 67 of the paragraph (3), Section 68 of the paragraph (2) Act 34/2004 against Article 10, Section 30 of the paragraph
(2), and Article 30 of the paragraph (3) of the 1945 Constitution, so that Court is authorized to
check, prosecute, and disconnect a quo;
Legal Standing (Legal Standing) The applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act, which could
act as the applicant in testing an Act against
The 1945 Constitution is them that considers the right and/or authority
its constitutionality is harmed by the enactment of the required Act
testing, i.e.:
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 promulg;
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 name of the supplicant is: "
. the absence of the rights and/or its constitutional authority granted
by the 1945 Constitution resulting from the enactment of the Act
on the test of testing;
22
The petitioners in the a quo qualify themselves as
individuals of Indonesian nationals who work as private trade
goods and services as well as laborers consider the right Its constitutionality is harmed by
the enactment of Article 3 of the paragraph (2), Section 15 of 7, Section 15, Section 8, and Section 15
number 9, Article 66 of the paragraph (2), Section 67 of the paragraph (2), Section 67 of the paragraph (3),
and Article 68 of the paragraph (2) of the Act (2) 34/2004;
[3.6] It is tied that next to the applicant must meet the qualification
as called above, The applicant is also obliged to outline clearly
about his constitutional rights being harmed by the enactment of the Act
which is being honed for testing. The Court since the Decree No. 006 /PUU-IlI/2005
dated May 31, 2005 and the No. 11 /PUU-V/2007 Decree No. 20
September 2007 and subsequent rulings, the establishment that the loss
constitutional rights as referred to Section 51 of the paragraph (1) the MK bill must
meet 5 (five) terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific. (specifically) and actual or at least a potential according to
reasonable reasoning can be certain to occur;
d. (causal verband) between the rights loss and/or
the constitutional authority is referred to by the Act
which is being honed for testing;
e. It is possible that with the request of a request then
constitutional losses such as the postured will not or no longer occur;
[3.7] It is balanced that the petitioners assume the right
the constitutional one. provided by Article 10, Section 30 of the paragraph (2), and the paragraph (3) of the Constitution
1945 as quoted in paragraph [3.1] aggrieved by the enactment of Article 3 of the paragraph (2), Section 15 of the figure 7, Section 15 of the figure 8, and Section 15 of the number 9,
Section 66 of the paragraph (2), Section 67 of the paragraph (1), Section 67 of the paragraph (2), Article 67 of the paragraph (3), and
Article 68 of the paragraph (2) of the Act 34/2004;
23
[3.8] Stated that according to the applicant, the section a quo in effect
dated October 16, 2004 led to the vagueness of the organizational system
the defense of the state. With the Act 34/2004 there was a real threat
military use of warships from other parties in Ambalat in 2005, theft
fish, earth produce, including massively timber that foreign parties did,
use vessels armed by foreign countries to arrest Service officers
Oceans and Fisheries in Indonesian waters in August 2010 that
violates the constitutionality of the people, citizens and Indonesians
including the Petitioner. If a a quo is granted by the Court,
then the system of state defense organizations will be back firmly and strong because
the TNI organization will be directly under the President as set forth in
Constitution of 1945, so that foreign countries and foreign nationals are reluctant to
occupy, violate territory, steal natural wealth, and threaten
sovereignty of the Republic of Indonesia;
[3.9] Draw that against the reasons the applicant, the Court
argues that in testing the Act against the 1945 Constitution,
is required the presence of constitutional losses experienced by the applicant, whether
in actual or potential as a result of the enactment of the Act
is mohoned testing. To assess the outcome of the applicant's loss as a result of
the enactment of the Act which the test is dismounted may be measured, among other things,
if the application for testing the Act is granted, then
the constitutional loss of the applicant It won't or won't happen again. In addition,
The court in some of its disconnect as described in paragraph
[3.5] has required that the presence of a constitutional loss of the applicant by the enactment of the Act, in addition to actual or At least
a potential that according to reasonable reasoning can be determined to occur, should
also be specific as well as the cause of cause for (causal verband) between
The applicant's loss is expiring. The Act is moiled
testing. The terms of such constitutional losses must be experienced by the applicant
against the enactment of an Act a quo;
[3.10] Balanced that Article 27 paragraph (3) of the 1945 Constitution states, " Any
citizens are entitled and obliged take part in the country ' s defense efforts "; and
24
Article 30 of the paragraph (1) of the 1945 Constitution states, "All citizens are entitled and
is required to participate in the country's defense and security efforts". This means
that every citizen has a right and an obligation to defend the country
and participate in the country ' s defense and security efforts. The provisions of the
Act are motionless
governing the relationship between the TNI and the Ministry of Defense, which
The applicant does not function effectively in the defense effort. and
maintain the country, so there is a threat to the sovereignty of the region
The country and its wealth is in it which harms the applicant
as a citizen. Based on that description, the Court argued
that the petitioners are not directly harmed the rights
constitutionality as a citizen to take part in the defense efforts
the state as well as the defense and the country security, so the petitioners have
legal standing (legal standing);
Subject to
[3.11] weigh that before considering the subject
The court needs to quote Article 54 of the MK Act which states, " Court
Constitution can request a caption and/or meeting treatises with respect to the application being checked in to the Consultative Assembly
People, House, Regional Representative Council, and/or President ". Because of the section
it uses the word" can " then the Court must not hear
the Representative of the House, the DPD, and/or the President in conducting the testing of an
Act. In other words the Court may request or not request
the captions and/or meeting treatises with respect to the application
are being examined to the People's Consultative Assembly, DPR, Council
Regional Representative, and/or The president, depending on the urgency and relevance.
By due to the legal issue in the plea a quo it is clear, then
The court sees no urgency and relevance for requesting
the captions and/or treatises meeting of the People ' s Consultative Assembly, DPR,
The Regional Representative Council, and/or the President, so the Court directly
considering and then severing the a quo plea without asking
the captions of the country's institutions are referred to;
25
[3.12] A draw that the provisions are being used for testing
The applicant, at the point of regulating the organization of the Indonesian National Army
which is an open law policy (opened legal policy) of the establishment
The Act in this case is the House together with the President.
The arrangement laid down management on administration support
defence to the Ministry of Defence which is also organization unit
that directly helps the execution of tasks The President. With
as such, the applicant's control that the TNI should be directly below
the president is not correct and does not reduce the effectiveness of the role and function
the substance is only because the Ministry of Defence takes care of the questions
administration support for the TNI. As for the effectiveness of the role and
its substance function remains under the command of the President berjenjang
according to the organization's arrangement. Even the commander-in-chief in the deployment of the TNI
for direct combat operations is held by the President. More than that designation
TNI commanders must be with DPR consideration and declaration of war should
with the approval of the DPR;
[3.13] Draw that the existence of the Ministry of Defense is
the ministry that explicit mention in the 1945 Constitution [vide Article 8 paragraph
(3)] which is constitutionally related to the existence of the TNI
as set in Article 30 of the paragraph (2) of the 1945 Constitution due to both units
governing body It is equally important in the field
defence, primarily the sovereignty of the country. Therefore, the relationship arrangement
organisatoris between the two units of the government's organization is
open law policy (opened legal policy) which can be set by
Act-forming as have been considered above;
[3.14] It is balanced that the applicant postulate that it occurred
a violation of sovereignty over the territory of the Republic of Indonesia is among others,
fish theft, wood theft, theft of resources other natural, occupation
outer islands by foreign countries caused by the enactment of Article 3 of the paragraph
(2), Section 15 of 7, Article 15 of the figure 8, Article 15 of the figure 9, Article 66 of the paragraph (2),
Article 67 of the paragraph (1), Section 67 of the paragraph (2), Section 67 of the paragraph (3), and Section 68 of the paragraph (2) Act
34/2004, according to the Court, the dalil para The applicant is not appropriate because of the
26
it is not related to its quality, but it is only co-accident
only, there is no evidence, and only on the assumption of the mere applicant.
Thus then the Petitioners are therefore the sole control. It is unwarranted according to
the law;
[3.15] It is balanced that based on the above considerations,
The court argues the Propositions Of The Petitioners are unwarranted by law;
4. KONKLUSI
Based on the assessment of the facts and laws as described above, the Court concluded:
[4.1] The court is authorized to examine, prosecute, and disconnect
a plea a quo;
[4.2] The applicant has a legal standing (legal standing) for
submitting the a quo] a quo;
[4.3] Dalil-dalil the applicant in the subject of an unwarranted application
the law;
Under the Act Constitution of the Republic of Indonesia Year
1945 and Act No. 24 of 2003 about the Constitutional Court
(Sheet of State of the Republic of Indonesia 2003 No. 98, additional
sheet of state of the Republic of Indonesia Number 4316), as well as Act Number
48 Year 2009 on the Power of Justice (State Sheet) Republic
Indonesia In 2009 Number 157, Additional State Sheet
Number 5076).
5. AMAR RULING
PROSECUTING,
DECLARING denied the Applicant for the whole;
Thus decided in a Meeting of the Judges by
the nine Constitutional Judges of the Moh. Mahfud MD as the Chairman.
27
Member, Achmad Sodiki, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim, Anwar
Usman, Hamdan Zoelva, Maria Farida Indrati, and M. Akil Mochtar, respectively
as Members, on Wednesday the fourth day May of the month of May two thousand eleven
and spoken in the Plenary Session open to the public on this day as well, Wednesday
date four months May of the year two thousand eleven, by the nine Justices of the Constitution
that is Moh. Mahfud MD as Chairman of the Members, Achmad Sodiki, Ahmad
Fadlil Sumadi, Harjono, Muhammad Alim, Anwar Usman, Hamdan Zoelva, Maria
Farida Indrati, and M. Akil Mochtar, respectively as Members, with
accompanied by Ida Ria Tamate as Panitera Replacement, and was attended by
the applicant, the Government or the 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.
Anwar Usman
ttd.
Hamdan Zoelva
ttd.
Maria Farida Indrati
ttd.
M. Akil Mochtar
PANITERA REPLACEMENT, ttd.
Ida Ria Tamils