Test The Material Constitutional Court Number 85/puu-Ix/2011 2011

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 85/PUU-IX/2011 Tahun 2011

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Microsoft Word-2011-PUU 85 Verdict HAD BEEN READ the VERDICT Number 85/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] who adjudicate matters the Constitution on the first and last levels, dropping the verdict in Application Testing Act No. 32 of 2004 on local governance and law No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945 , submitted by: [1.2] name: Hi. Satono, S.P., S.H. Position: Regent East Lampung (non-active) address: Jalan p. Antasari Gg Constrained I Number 51, of Cape Coral, Bandar Lampung on the basis of a special power of attorney dated November 8, 2011 authorizes Dr. a. Muhammad Asrun, S.H., M.H. and Merlina, S.H. advocate in the Office of "Dr. Muhammad Asrun (folders) and Partners Law Firm", located in the building of PGRI, Jalan Tanah Abang III Number 24, Central Jakarta , acting for and on behalf of the giver of power; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-– the applicant; [1.3] Read the petition of the applicant; Hearing a description of the applicant; Examine the evidence of the Applicant; Hearing and reading the affidavits from the Government; Hear and read the affidavits of the House of representatives; Hear expert information of the applicant; Read the written conclusions of the applicant;

2 2. SITS MATTERS [2.1] considering that the applicant had filed a petition with a letter dated November 21, 2012, which is listed on the Registrar of the Constitutional Court (hereinafter referred to as the clerk of the Court) on Wednesday, 23 November 2011 based on deed of receipt of the Application File Number 431/URPAN.MK/2011 and registered on Thursday, December 8, 2011 with registration of case Number 85/PUU-IX/2011, which has been repaired and received at the Registrar of the Court on 30 December 2011 , outlining things as follows: i. the POWERS of the CONSTITUTIONAL COURT i. 1. That Article 24C paragraph (1) of the Constitution of the Republic of Indonesia in 1945 [hereinafter the Constitution], article 10 paragraph (1) of Act No. 24 of 2003 about juncto Constitutional Court Act No. 8 of 2011 about the changes to the Act No. 24 of 2003 about the Constitutional Court [hereinafter referred to as ACT Number 24 in 2003, proof of P-4, Act No. 8 of 2011, proof of P-5] stated : "That the Constitutional Court is authorized to adjudicate on the first and last level of an award is final to examine legislation against the Constitution, severing of disputes the State agencies of its authority given by law – the Constitution, severing the dissolution of political parties and break the disputes about the results of the elections." I. 2. That on the basis of the authority of the Constitutional Court as set forth above, if any citizen who considered the right konstitusionalnya harmed as a result of the enactment of the charge material in verse, chapter, and/or parts of legislation contrary to the Constitution of the Republic of Indonesia in 1945, the Constitutional Court is authorized to declare the material charge paragraph, chapter, or part of such legislation "does not have the binding force of law" as provided for in section 57 subsection (1) of the ACT Number 24 in 2003. I.3. With regard to the jurisdiction of the Constitutional Court, then the Constitutional Court shall be entitled and authorized to perform testing testing the constitutionality of article 30, article 31 and article 33 of the Act 3 Number 32 of 2004 concerning Regional Government (law 32/2004) as well as Article 244 and section 259 of the Act No. 8 of 1981 on the law of criminal procedure (law 8/1981) against the Constitution at the Constitutional Court. II. The POSITION of the LAW and the INTERESTS of the APPLICANT II. 1. That as stated in article 51 paragraph (1) of the ACT Number 24 in 2003 that "the applicant is the party that presume that they the right and/or the obligation konstitusionalnya aggrieved with the enactment of the Act, that is: a. an individual citizen of Indonesia; 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 that is governed by law; c. a public or private legal entities; d. State institutions; That in the Description of article 51 paragraph (1) of LAW Number 24 year 2003 it is said that: "is the ' constitutional rights ' rights are regulated in the Constitution of the Republic of Indonesia in 1945." Description of the harm the applicant's constitutional rights will be further elaborated in the petition for a quo. II. 2. That the applicant is a citizen of the Republic of Indonesia which has the position of law (legal standing) as individual parties who consider the rights of the harmed by konstitusionalnya because of enforced incorrectly Article 244 and section 259 of the ACT 8/1981 which is associated with the application of article 30, article 31 and article 33 of the ACT 32/2004. Article 244 of the ACT 8/1981 stated: "towards the given criminal verdict on the last level by the Court other than the Supreme Court, the defendant or the Prosecutor may submit a request for cassation to the Supreme Court against the verdict except free." Section 259 of the ACT 8/1981 States: "(1) in the interest of the law against any verdict which has acquired permanent legal force of other courts other than the Supreme Court, may be filed once the petition for appeal by the Attorney General.


4 (2) of the legal interests of Cassation Verdict should not be detrimental to the parties concerned. " Article 30 of the ACT 32/2004 reads: (1) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the proposals of PARLIAMENT when expressed do criminal acts of evil that threatened with imprisonment the shortest 5 (five) years or more based on the Court ruling. (2) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the LEGISLATIVE proposal in a proven criminal offence referred to in subsection (1) on the basis of a court decision has acquired legal force anyway. Article 31 of the ACT 32/2004 reads: (1) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the proposals of PARLIAMENT because it claimed to do criminal acts of corruption, the crime of terrorism, treason, and/or criminal acts against State security. (2) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the LEGISLATIVE proposal because it proved to do makar and/or conduct other divisive unitary State of the Republic of Indonesia stated by court rulings that have acquired legal force anyway. Article 33 of the ACT 32/2004 reads: (1) the head of a Region and/or the Deputy Head of the County that dismissed while as stipulated in article 30 paragraph (1), article 31, paragraph (1) and section 32 subsection (5) after going through the judicial process turns out to be proven innocent based on a court decision has acquired legal force anyway, at least thirty (30) days the President has merehabilitasikan and reactivate the regional head and/or the Deputy head concerned areas until the end of his term. (2) if the head of the area and/or the area Deputy Chief dismissed while referred to in subsection (1) has ended his time in Office, the President has merehabilitasikan and do not turn it on again.

5 (3) of the Ordinance implementing the provisions referred to in article 30, article 31 and article 32 provided for in government regulations. When the Article 244 of ACT 8/1981 juncto Article 259 of LAW 8/1981 remain applied against the Court ruling which declared a regional head and/or the Deputy Head of the area by the Court declared free or proven to be innocent of the charges the Prosecutor linked article 30 and article 31, then it should be Article 33 paragraph (1) of the ACT 32/2004 may still be applied even if the public prosecutor filed an appeal against the ruling of the free. However, during this practice show that Prosecutors filed a cassation verdict non terhadp and result in the head region or Deputy Head of a non-active area may not be recoverable Office, including in the case of Mochtar Zakaria [proof of P-11.0-11a]. The fact this law clearly raises a constitutional disadvantage for the applicant, so that the Court should declare the provisions of article 244 and section 259 of the ACT 8/1981 in line with the Constitution even if the public prosecutor filed an appeal against the verdict and therefore Article 244 and section 259 of the ACT 8/1981 still have the force of law. II. 3. Associated with the terms "individual citizens of Indonesia" as set forth in article 51 paragraph (1) letter e of ACT Number 24 in 2003, then the applicant is a citizen of Indonesia who resides in Lampung Regency East Lampung [proof of P-6], where the applicant (Hi. Satono, S.P., S.H.) He was appointed as Regent of East Lampung based on the decision of the Minister of Home Affairs Number 131.18 -545 2010 dated 18 August 2010 [proof of P-7] and has been established as an elected Regent of East Lampung Period 2010-2015, based on the decision of the Electoral Commission East Lampung district number 17 in 2010 on 5 July 2010. The applicant then set deactivated as Regent of East Lampung based on the decision of the Minister of Home Affairs Number 131.18 -395 in 2011 on 26 May 2011 [proof of P-8] as presented to the District Court of Cape Coral [Number 304/PID. SUS/2011/URPN.TK, proof of P-9] and on has been terminated with amar verdict [vide Evidence P-9] as follows: JUDGE 1. Rejecting the objections of the defendant's legal advisor exception/Hi. Satono, S.H., S.P. Hi Bin. Susiswo Darmo;

6 2. Stating that the defendant Hi. Satono, S.H., S.P. Bin Hi. Susiswo Darmo, not proven lawfully and to convict guilty of committing criminal acts as didakwakan to him in the indictment or indictments, Primair Subsidair more Subsidair; 3. Free the defendant Hi. Satono, S.H., S.P. Bin Hi. Susiswo Darmo, hence the assertion of the Primair, Subsidair or more indictments Subsidair; 4. Restore the rights of the accused in the ability, position and possessions as well as her dignity; 5. Establish that evidence as the evidence in this matter and has been given a Number from 1 to the number 38 and the letter diajukian by the legal advisor are numbered 1 to Number 37 for this proceeding, wholly remain attached in berkara matter; 6. Charge the fees to the State; Though it has been non disconnected by the District Court of Cape Coral [vide Evidence P-9], Minister of the Interior remained yet can recover "the rights of the accused in the ability, position and possessions as well as her dignity" to the applicant for the restored his position as Regent of East Lampung due the public prosecutor filed an appeal against the decision of the District Court of Cape Coral a quo [proof of P-10]. The public prosecutor filed an appeal against the verdict because the applicant is free also, inter alia, in the provisions of article 244 and section 259 of the ACT 8/1981. With statements of Cassation by the public prosecutor, then Minister of the Interior has not been able to reactivate the applicant as Regent of East Lampung as referred to Article 33 paragraph (1) juncto article 30 and article 31 of the ACT 32/2004. Due to the application of Article 244 and section 259 of the ACT 8/1981 is wrong and is not based on the law, then the claimant has suffered the loss of the related constitutional terhambatnya the restoration of the position of the applicant as the Regent of East Lampung. Thus, the applicant has the legal position (legal standing) to apply for the test Act a quo. III. The REASON the FILING TEST Act III. 1. That the applicant has suffered losses since the start of the constitutional Minister suspend Applicants as Governors of Lampung


7 East after Prosecutors asked a Court docket to the Tanjung Karang [vide Evidence P-9] the background to the provision of article 31 juncto article 30 of ACT 32/2004. That the applicant rate suspension as Regent of East Lampung times as a form of punishment before the overthrow of the ruling of the Court is examining things that didakwakan to the applicant. Assessing the applicant's suspension as Regent of East Lampung bore a legal uncertainty for the Applicants as opposed to the soul and the payload Section 28D subsection (1) of the Constitution. III. 2. That the provisions of article 31 paragraph (1) of the ACT 32/2004 is punishment without going through the judicial process as set forth in Act No. 8 of 1981 on the law of criminal procedure [vide Evidence P-2], because a judicial process can only prove that someone brought to justice not proven guilty. The other argument is the existence of guarantees a person will not be convicted until a court ruling is "had a magnitude of law remains" in line with the principle of "presumption of innocence" as provided for in article 8 of Act No. 4 of 2004 concerning the powers of the Judiciary [hereinafter referred to as ACT No. 4 of 2004] and in line with the principle of "recognition, guarantees, protection and legal certainty is fair," as set forth in section 28D subsection (1) of the Constitution. III. 3. That article 31 paragraph (1) of the ACT 32/2004 is also contrary to the principle of State of law as adopted article 1 paragraph (3) of the Constitution. The provisions of article 31 paragraph (1) of the ACT 32/2004 is a form of "condemnation without going through the judicial process" which is a challenge against the spirit of the principles of State law (the rule of law or rechstaats) as contained in article 1 paragraph (3) of the Constitution, that "the State of Indonesia is a country of laws." That one of the pillars of the country's spirit of the laws is the existence of legal certainty through a judicial process that is honest, fair, and imparsial. That "punishment" that diintrodusir in article 31 paragraph (1) of the ACT 32 of 2004 certainly not born from a judicial process that is honest, fair, and imparsial. So that the provisions of article 31 paragraph (1) and the explanation of article 31 paragraph (1) of the ACT 32 of 2004 contrary to article 1 paragraph (3) of the Constitution.

8 that the suspension of the head area and/or Deputy Head of the area should be seen as a "punishment" without a court ruling, and this penalty becomes permanent later on if the head area and/or Deputy Head of the area by the Court were convicted. This assumption can also be imposed instead, i.e. how I wish a head region have been dismissed while – and clearly have suffered material and immaterial losses – and then not proven guilty, are the terms "suspension" has become a penalty before the punishment from the Court though only temporary? III. 4. That the Constitutional Court in Ruling Number 133/PUU-VII/2009 dated 25 November 2009 on the legal considerations section, stating that the application of the principles of the common law must be carried out on the principle of fairness, namely not to apply the General should be implemented on the two principles of Justice and so as not to mencinderai the community's sense of fairness i.e. power principle and the principle of legal equality practice in front of the law. That in principle a power law behavior requires that a rule of law that is enforced should be able to reach out to each and everyone, without exception, whereas equality before the law is requiring that all and every person the same berkedudukans in the presence of the judge as to apply the law and obtain equality of opportunity in the field of Government. The principle of equality before the law and Government opportunities is constitutive principles for creation of fairness in all legal systems. That the award Number 133/PUU-VII/2009, which the Constitutional Court has been granted the petition of the applicant that "the leadership of the KPK quit or was dismissed permanently after the Criminal Court's verdict was based on who has acquired the force of law. III. 5. That the applicant suffered losses again, after being temporarily – constitutional because it was allegedly doing criminal acts of corruption, which is then disconnected and not proven public prosecutor's indictment--because the Home Secretary cannot restore the applicant's position as Regent of East Lampung as referred to in article 33 paragraph (1) of the ACT 32/2004 even though the District Court of Cape Coral has been non disconnected the applicant [vide Evidence P-9] , because the public prosecutor filed an appeal against the ruling of 9 free a quo. The fact this law again should be seen as a perversion of constitutional rights of the applicant to obtain: (1) the equation in the face of legal and governance [article 27 paragraph (1) of the Constitution]; (2) recognition, guarantees, protection and legal certainty of fair and equal treatment before the law [article 28D paragraph (1)]; (3) Non discriminatory treatment on the basis of anything and is entitled to protection against discriminatory treatment that [article 28I paragraph (2)]. III. 6. That has not been associated with the applicant's position was restored as Regent of East Lampung, applicant rate has been incorrectly applied the provisions of article 244 and section 259 of the ACT 8/1981 because Prosecutors remain filed Cassation over the verdict, which indeed has been expressly prohibited in article 244 of ACT 8/1981. The attitude of the General Prosecutor has an unpleasant backlash on loads of the convicted defendants are free, giving rise to problematic law in field practice of beracara on the face of the Court. Problamatik hkum adverse, including citizens against themselves, the Applicant would continue harming the applicant's constitutional rights violations of his rights as guaranteed in the Constitution, namely: a. the "State of Indonesia is a country of laws." [Article 1 paragraph (3) of the Constitution]; b. "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya" [article 27 paragraph (1) of the Constitution]; c. "every person has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law" [article 28D paragraph (1) of the Constitution]; d. "every person has the right to be free from discriminatory treatment on the basis of anything and is entitled to protection against discriminatory treatment that" [article 28I paragraph (2) of the Constitution]. IV. PETITUM based on explanation and the reasons the law above, and supported by the tools of the evidence submitted to the Constitutional Court, with this the applicant appealed to the Constitutional Court to decide as follows: 1. The applicant's application for a Grant in their entirety;


10 2. Decide and declare that Article 244 of the Act No. 8 of 1981 on the law of criminal procedure associated with the phrase ". .. except against the verdict" does not conflict with the Constitution of the Republic of Indonesia in 1945; 3. Article 244 States that Act No. 8 of 1981 on the law of criminal procedure associated with the phrase ". .. except against the verdict," has a binding legal force; 4. Decide and declare that Section 259 of the Act No. 8 of 1981 on the law of criminal procedure associated with the phrase "... may be filed once the petition for appeal by the Attorney General" when it is not interpreted as "... may be filed once the petition for appeal by the Attorney General, except against the ruling of the free", then the Article 259 of the Act No. 8 of 1981 on the law of criminal procedure contrary to the Constitution of the Republic of Indonesia in 1945; 5. Declares that Article 259 of the Act No. 8 of 1981 on the law of criminal procedure associated with the phrase "... may be filed once the petition for appeal by the Attorney General" when it is not interpreted as "... may be filed once the petition for appeal by the Attorney General, except against the ruling of the free", then the Article 259 of the Act No. 8 of 1981 on the law of criminal procedure did not have binding legal force; 6. Decide and declare that Article 33 paragraph (1) of Act No. 32 of 2004 on local governance associated with the phrase "... based on a court decision has acquired legal force anyway, ... "when it is not interpreted as" ... based on a court decision has acquired legal force anyway, ... including free verdict ", then Article 33 paragraph (1) of Act No. 32 of 2004 on local governance is contrary to the Constitution of the Republic of Indonesia in 1945; 7. Decides that Article 33 paragraph (1) of Act No. 32 of 2004 on local governance associated with the phrase "... based on a court decision has acquired legal force anyway, ... "when it is not interpreted as" ... based on a court decision has acquired legal force anyway, ... including free verdict ", then Article 33 paragraph (1) of the 11 Number 32 of 2004 concerning Regional Government is contrary to the Constitution of the Republic of Indonesia in 1945; 8. Instruct loading of this ruling in the news of the Republic of Indonesia as it should be. Or when the Constitutional Court holds another Applicant, please seadil-fair verdict. [2.2] considering that to prove the evidence if possible, the applicant submits evidence that writing letters/marked evidence of P-1 to P-11a as follows: 1. Proof of P-1: photocopy of Act No. 32 of 2004 on local governance; 2. Proof of P-2: photocopies of Act No. 8 of 1981 on the law of criminal procedure; 3. Proof of P-3: Photocopies of the Constitution of the Republic of Indonesia in 1945; 4. Proof of P-4: photocopy of Act No. 24 of 2003 on the Constitutional Court; 5. Proof of P-5: photocopy of Act No. 8 of 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court; 6. Proof of P-6: Photocopying Card Population atasn Hi. Satono; 7. Proof of P-7: a photocopy of the decision of the Minister of Home Affairs Number 131.18 -545 in 2010, August 18, 2010; 8. Proof of P-8: a photocopy of the decision of the Minister of Home Affairs Number 131.18 -395 in 2011, May 26, 2011; 9. Proof of P-9: Photocopying Quotes the Court ruling the country of Cape Coral Number 304/PID. SUS/2011/URPN.TK, dated October 17, 2011; 10. Proof of P-9a: photocopy of the copy of the verdict of the District Court of Cape Coral Number 304/PID/SUS/2011/URPN.TK, dated October 17, 2011;

12 11. Proof of P-10: Photocopying Newspaper Lampung, edition of Wednesday, November 9, 2011 with the title "Attorney Satono-Andy Cassation"; 12. Proof of P-11: a photocopy of the copy of the verdict of the District Court of Bandung number 22/PID. SUS/TPK/2011/PN. BDG, October 11, 2011; 13. Proof of P-11a: photocopy of Certificate notice of petition for Cassation number 08/Deed. Pid/2011/PN. Bdg filed on October 21, 2011; In addition, the applicant filed two (2) people who have heard his statement in the trial Court, which explains as follows: 1. Dr. Chairul Huda, S.H., M.H. Introduction the verdict "free" ("vrijspraak), as referred to in article 1 point 11, article 191 Article 67, paragraph (1), article 244 and section 263 subsection (1) of the CODE of CRIMINAL PROCEDURE, was the verdict in criminal cases that can not be corrected with any remedy (either a regular remedy or extraordinary remedy) , for any reason (either for reasons sociological, juridical reasons, or reasons of Justice and truth), and in any way (whether through the appeal process as well as the direct efforts of Cassation and/or review), as well as on the basis of any provision in the regulations (both based on Act No. 48 in 2009 about the Power of Justice, Act No. 14 of 1985 juncto Act No. 5 of 2004 about the Supreme Court , Act No. 2 of 1986 juncto Act No. 49 of 2009 of Public Justice, nor the CODE of CRIMINAL PROCEDURE) and jurisprudence. It is based on the argument as a Philosophical Reason: berkut court rulings and the efforts of the ruling, including free verdict appeal, cassation and review, when seen as part of the criminal justice (SPP), it was not able to be released from the paradigm, of model legal substance use criminal justice system Indonesia. The paradigm of criminal justice system designed in Indonesia paradigm "modern school" and are now implemented in the paradigm of "social control school", so the remedy is limited as a tool


13 correction for the use of State power that decides someone has committed a criminal offence (ruling pemidanaan) and not vice versa. "Due Process" Model of criminal justice system embraced Indonesia puts the Court as a "place of separating people who are guilty of innocent people" so that the verdict is "the end" of the entire process. In this case, a legal substance in the form of laws-the invitation should be seen as a means of "restrictions on the authority of the State" to repressive action against society. In criminal cases, state that "powerful" will be face to face with the suspect/accused "powerless", so the substance of legislation should be seen within the framework of "negative legality". Instrument remedy (regular or extraordinary) in the CODE of CRIMINAL PROCEDURE are therefore especially provided as a means of correction for the use of the repressive nature of the authority, including the ruling pemidanaan. The verdict does not contain pemidanaan, especially free verdict therefore could not requested any remedy. Juridical reasons in terms of legislation, such as article 67 and article 244, as well as Section 263 subsection (1) of the CODE of CRIMINAL PROCEDURE, essentially "prohibits remedy against the ruling of the free". These provisions shall not be construed as "enough" interpreted from the words contained in it. Article 67 CODE of CRIMINAL PROCEDURE does not give the possibility to appeal against the verdict he did freely, but chances are he does remedy an appeal can be made against the ruling of the pemidanaan. Similarly the possibility of appeal against the verdict in part off of all the lawsuits concern less precisely the application of the law. Although in practice, Expert knowledge not found such things. The Court ruling in the event cannot be made too quick remedy of appeal. Similarly Article 244 CRIMINAL PROCEDURE CODE, which simply does not open the possibility he does remedy of Cassation against verdicts are free, without any exception. In the meantime, section 263 subsection (1) of the CODE of CRIMINAL PROCEDURE only opens the possibility of doing an extraordinary remedy against the decision of a review that contains pemidanaan. Basically any remedy provided CODE of CRIMINAL PROCEDURE, can only be made against the ruling of 14 that contains pemidanaan, either when it is done by the accused/convicted person as well as by the public prosecutor. As an additional argument concerning the "excuse" that is often used by the public prosecutor to conduct an extraordinary remedy review against the ruling of the free, is the provision of article 263 paragraph (2) letter b CODE of CRIMINAL PROCEDURE, which actually also just opened up the possibility of a review against the ruling of the pemidanaan shows that there is a contradiction between the legal considerations, but cannot be made against the ruling of the free and escape from any lawsuits. Article 263 subsection (3) of the CODE of CRIMINAL PROCEDURE have only the sense that a review can be lodged by the convicted person or his heir because the verdict contains no rehabilitation. Seen in terms of legal history PERMA in article 9 number 1 in 1980 as a forerunner of the provisions of the CODE of CRIMINAL PROCEDURE in the review beginning with the words "the Supreme Court could revisit a criminal verdict which has acquired permanent legal force containing pemidanaan, ...". Article 191 paragraph (1) of the CODE of CRIMINAL PROCEDURE specifies: "If the Court holds that the results of the examination at the hearing, the defendant's misconduct over deeds that didakwakan him not proven legally and convincingly, then the defendant terminated free". The word "mistake" multi interpretation, because it can only mean "opzet or culpa", meaning "nature can be dicelanya" delik. Considering the CRIMINAL CODE embraced the doctrine of monistis, where "opzet or culpa" can be formulated (being "bestanddeel") or not formulated (being the "elements") in a criminal offence, give rise to consequences of a different verdict. The verdict "free" just in case "or culpa opzet" became part of the core delik (bestanddeel delict) and disconnected "from all lawsuits" in terms of "culpa" opzet or become a tacit elements (elements of delict). If the "fault" means "properties can be insulted" people who commit criminal acts, so that in this case the verdict "free" was dropped because the defendant could not be accounted for in the criminal law, then these "free" verdict can only be dropped not only because it is not terbuktinya the "criminal act" but also "criminal liability". In this case the verdict "free" was dropped when the "criminal act" but proven "criminal liability" is not proven, then the award can be categorized "non pure or not" niet zuivere vrijspraak "." Not pure free "was the verdict of" escape from all lawsuits veiled "or" bedekte ontslag van rechtvervolging ".


15 Thus, "free" or "not pure niet zuivere vrijspraak" also is not a verdict that contains pemidanaan. Therefore, the inception of legal practice that distinguishes the ruling non pure and impure, not free from juridical conception that in the verdict there is confusion about the verdict should be "contains pemidanaan" but as "free is not purely". Well the verdict is free (non pure or not pure), the verdict is "not contain pemidanaan", so it can't be legal remedy of any kind. Sociological reasons Legal Practice of "admissibility" remedy against the ruling of the free shows that there is inconsistency is very far from "the ideals of law" which was originally diintrodusir as the reason for the need for this effort, referred to in the decree number M 14-PW. 1983 07.03 10 December 1983 on the implementation of the CODE of CRIMINAL PROCEDURE, an additional Pecoman that is mentioned in "the situation and condition, by-law, justice and righteousness" need it. The Supreme Court ruling is seen as a "jurisprudence", which became a source of law he does remedy of Cassation verdict is the verdict the number 275/K/Pid/1983 against defendants Sonson Natalegawa, who was in the High Court's ruling invalidates the reasoning in the case because it concerns the verdict not just "verdict which can be requested appeal". How is it possible, because the very inconsistency, the attitude of the Supreme Court which declared the High Court not authorized check, try and break things in appeal against the verdict, by referring to Article 67 CODE of CRIMINAL PROCEDURE, but the Supreme Court in the same matter, in that ruling, stating authorities inspect, judge and hang up on the level of Cassation cases by the judge has been previously disconnected non under article 244, CRIMINAL PROCEDURE CODE. Whereas both these provisions (article 67 244 and CODE of CRIMINAL PROCEDURE) contains "the same legal norms", i.e. exclude the (banned) to be doing remedy (appeal and cassation) against the verdict. The Supreme Court ruling is seen as a "jurisprudence", which became a source of law he does remedy of Cassation verdict is the verdict the number 275K/Pid/1983 against defendants Sonson Natalegawa, all Expert knowledge does not do the "formiel inspection" is the verdict of the Central Jakarta District Court 16 Number 33/1981/Ordinary Criminal 10 February 1982, which in turn requested the Cassation to the Supreme Court, was the verdict of non pure or free of impure. Similarly, the Supreme Court Verdict Number 1144KlPID/2006 which was the verdict of the appeal against the verdict which was dropped by the South Jakarta District Court Nomor2068/Pen. Pid/2005/PN. Jak. Tues, February 20, 2006, against the defendant ECW Neloe dkk, not first conducted an examination and consideration that was the verdict of the verdict was "not purely". Basically, he received the efforts of Cassation the public prosecutor against the ruling of the encyclopedia simply because "the will" of the Supreme Court to "memidana" people (not also deserve still called the defendant) that has been declared "free" by the Court. The will of memidana or punish, certainly not a legitimate motive for the power of Justice, nor the motives which basically meets the reason "the situation and condition, by-law, justice and righteousness" specified in the decree number M 14-PW. 1983 07.03 10 December 1983 Additional Guidelines about implementation of CODE of CRIMINAL PROCEDURE. On the contrary ruling of the Supreme Court "refused" the filing of Appeal against the ruling of the free, because it is based that the Prosecution could not prove that the requested verdict of Cassation that was the verdict of "not purely". The Supreme Court's ruling in the case Number 57KIPid/2004 against the defendant Bicar Sinaga, SH, which is against the ruling of the District Court's verdict Singkil number 08/Pid. B/2003/PN. SKL on 8 September 2003, thus rejecting the petition for Cassation Prosecutor because the Supreme Court looked at the Singkil district court verdict was "non pure verdict". In this case it can be summed up "the will to punish" from the Supreme Court against the Bicar Sinaga, SH does not exist, a different case and hence contrary against Sonson Natalegawa ECW Neloe and dkk. The implementation of the provisions of the legislation, which is solely based on purely "punitive kendak", is definitely an attitude contrary to the overriding high perikeadilan CODE of CRIMINAL PROCEDURE, other legislation and the law in General in Indonesia. Basically free verdict is a verdict of bukum Iangsung fixed, immediately at the time spoken. The right to receive the verdict, declared rejected the ruling by filing an appeal (and therefore also


17 cassation), as well as States think-think to learn further on the verdict, as stipulated in article 196 CODE of CRIMINAL PROCEDURE, in the period that is specified in the law, can only be made against the ruling of the pemidanaan. That is, the usual remedy, either appeal or Cassation, can not be made against the ruling of the pemidanaan verdict because it's not free. This is emphasized by the fact that Article 67 and article 244 CRIMINAL PROCEDURE CODE with the words "except". While the extraordinary remedy, such as review, against the ruling of the free, unobstructed done by the State (public prosecutor) in addition because it excluded in article 263, the CODE of CRIMINAL PROCEDURE also for the review was the right of convicted person and his heir, and not the rights of the public prosecutor. Basically, the admissibility of the practices of law enforcement with regard to ordinary legal efforts and extraordinary remedy against the decision of a free, just a very naked arbitrariness is done by the Supreme Court, against the innocent people who have been successfully separated by the trial of those guilty, which is based on by sheer instinct and judgment birani. The rehabilitation of the defendant because the verdict is free there are basically three types of verdicts in criminal cases, that is the verdict which is not principal is concerned things (charges annulled by law and cannot accept the demands of the public pentuntut), ruling of pemidanaan, and a verdicts which are not in the form penidanaan (escape from all lawsuits and non). In this case the verdict "free" was the verdict of which have the highest value, which can be equated with a verdict of "not guilty", in the tradition of the common law. In other legislation, it is formulated as "not proven guilty", as referred to in Article 33 paragraph (1) of Act No. 32 of 2004 on local governance. The defendant terminated free "entitled" get "Rehab" good name and restore his honour, in terms which are essentially being a "kewijiban" of the courts to do it by specifying it in the ruling (article 97 CODE of CRIMINAL PROCEDURE). It is increasingly strengthened, arguing that a free direct legal powers remain (in krackht vangewijsde), at that time also after. This also causes the mutatis mutandis are basically obligations to rehabilitate them, i.e. with "recover" all the rights which had reduced due judicial process 18 carried by the accused, must be made at the first opportunity after the verdict of the magnitude of the law anyway. Considering the verdict of non direct measuring bukum fixed, then any remedy against this (appeal or review), it does not eliminate the obligation of performing the rehabilitation. In this connection, it is a "legal obligation" to rehabilitate the accused who is head of the area which is declared to be "not proven guilty" or adjudged by a court to be exempt, karma is not proven to perform criminal acts. Implementation of Article 33 paragraph (1) and (2) of LAW Number 32 year 2004 which is ejawantah "rehabilitation" of the head of the defendant but found not proven guilty or acquitted that, by actions "go beyond the authority of the public prosecutor/Prosecutor", when the verdict was against the proposed petition for cassation. In this "obligation" to rehabilitate the accused obstructed by actions beyond the limits of the authority of the Prosecutor, which according to Experts, not only saving just the sheer challenge on the orders of the ruling of the judge who restored the dignity and the dignity of the accused, but neglect the fundamental rights of a person covered by article 28D Constitution. 2. Expert Syaiful Ahmad Dinar, S.H., M.H. That Article 244 CRIMINAL PROCEDURE CODE in its application by the Supreme Court since the existence of the Justice Minister's decision Letter Number M14/0703 10 December 1983 who essentially stated that for non verdict cannot appeal, but may be filed Cassation with the reason for the sake of truth and for the sake of Justice, and legal interests, as well as the truth of the verdict, based on the case pedomannya refers to the jurisprudence previously there is no jurisprudence which grant the petition for cassation; In such interpretation jurisprudence meaning against the law or the interpretation of wederrechtelijk materiele wederrechtelijk. Since 1966, the jurisprudence of the Number 42 States interpretation against the law is applied in the sense of negativity. That is, when the Act was contrary to law, but is not reprehensible, then the defendant can be delivered throughout the community interests served, the defendant could not profit, the State is not harmed, then the defendant need not be punished;


19 Supreme Court Ruling that since the Register Number 275/K/1983 on December 15, 1983 in Sonson Natalegawa, Raden, then since that's contra legem application of the law that are ablaze in violation of the act done by the Supreme Court because the Supreme Court interprets the law of tort should be interpreted not only formally, but should also be seen from the principles generally accepted according to propriety in society, namely when the community considers it reprehensible deeds , then he can be punished. From the verdict of the jurisprudence developed steadily until now; That according to experts from the practical standpoint of Cassation verdict does little of it containing the result as in the case of Tommy Suharto, at the Court of first instance she had been disconnected, but prosecutors filed a cassation and decided he was sentenced later due to the judge's verdict is killed by Tommy Suharto. Then the award Review Tommy Suharto was freed. Examples of such cases happened contra legem impact made by the Supreme Court which is no better than the goal. Similarly, the background of the decision letter of the Minister of Justice may, where the decision letter of the Minister of Justice may annul the Act? Therefore, according to the Expert, with a ruling of the Constitutional Court dated July 25, 2006, number 03/PUU-IV/2006 then the tort should be construed broadly formyl. Thus, the issue is over. Since the ruling of the Constitutional Court of the Supreme Court should not be again received the appeal from the public prosecutor. This contrasts with the interests of the law. Different legal interests with the interests of the public prosecutor to file a cassation; That in a philosophical interpretation of tort material interpreted positively by simply saying that deeds can be considered reprehensible person convicted was contrary to the principle of legality which applies universally, that is, a person can be punished when there is a rule of law that governs the first because there has never been a judge of the Tribunal who decided with a sense of propriety or the nature of the goods; That based on the experience of Experts as a practitioner, an error in judging a public encyclopedia. Criminal justice system in Indonesia, starting from investigation to pemidanaan. That often happens is the existence of collusion in the process of investigation, 20, was not in court because the Court is done in open court to which the public authorities of the Court of first instance, judex facti judge about the facts. It is not possible if the fact is proven guilty, people will be free unless there is a verdict ruling veiled as it is not open to the public, then do not know silently disconnected; That the observations of experts there is a Sass from the Supreme Court that every incoming corruptor, every defendant who went to trial, it had been deemed particularly Tipikor guilty, even though he is the victim and not the perpetrator. The judge just as tumbal because confronted to problems that actually being engineered. Therefore, Experts expect the Constitutional Court should be firmly against the ruling free don't free ruling that the appeal submitted is inkracht, there should be no other remedy again, there can be exceptional because unless the Cassation in principle free verdict (vrijspraak) stated that the defendant's misconduct is not supported by evidence, then at that time should have been inkracht. Thus, it is certainly no longer essentially to lodge Cassation; That verdict of non 244 CRIMINAL PROCEDURE CODE in article according to experts is the verdict that the deeds of the pidananya there but the defendant did not make mistakes or criminal deeds but not deeds of the civil code. In the criminal justice system in Indonesia, starting from the process of the investigation, the investigation. Party investigators learned that such a feat is the Act of civil litigation, but by investigating it can diputar-putar. But in principle based on evidence that is in the CODE of CRIMINAL PROCEDURE, civil matters may not be made to the criminal. That according to the ruling of non pure or impure just subterfuge of the Supreme Court. The verdict of non specified by law by the CODE of CRIMINAL PROCEDURE was the verdict that the defendant who faced alleged or do the crime really didn't do the crime because it is not supported by sufficient evidence; That in criminal cases the position of the defendant is confronted with the State, that the defendant's position is weak because it is starting from the process of inquiry, investigation, he has been accused or placed in the position of people who've definitely guilty, and even detention has done. The case weighs faced by the accused, the public prosecutor is given the opportunity to test the claim, and then it turns out the judges break the defendant not guilty, 21 are needed again for the public prosecutor to mangajukan of Cassation in this regard. Unlike the Sengkon and Karta, because they sentenced guilty then there is a remedy of appeal and cassation; That according to experts, the discovery of the law in connection with article 244 CRIMINAL PROCEDURE CODE can only be done but must not exist party sacrificed; [2.3] considering that the applicant's plea, the Government's response to convey information that is conveyed in the trial on 7 February 2012, as follows: i. REASONS PETITION refers to the application of the applicant, in essence stated that the implementation of the provisions of article 244 and section 259 CRIMINAL PROCEDURE CODE associated with the application of article 30, article 31 and article 33, Law Number 32 of 2004 concerning Regional Government (Law Number 32 Year 2004) contrary to the Constitution of the Republic of Indonesia in 1945 (UUD 1945) with reason : 1. According to the applicant, even if the applicant had decided freely by the State Court of Cape Coral with the verdict because charges were not free from proven legally and convincingly do criminal acts of corruption, the Interior Minister still has not been able to recover "the rights of the appellant in abilities, status and dignity as well as his dignity" as the East Lampung Regent due to the public prosecutor filed an Appeal based on the provisions of article 244 and 259 Article CODE of CRIMINAL PROCEDURE. Hence under article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004 Minister of internal affairs can not re-enable any applicant. The applicant considers "due to the application of the provisions of article 244 259 CRIMINAL PROCEDURE CODE and article is wrong and is not based on the law, then the claimant has suffered the loss of related terhambatnya Office of recovery of unconstitutional applicant as Regent of East Lampung" (vide Plea the applicant points II. 3 page 6 and 7) so that it is contrary to article 1 paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution (vide Plea the applicant page 10);


22 2. According to the applicant's article 31 paragraph (1) of LAW Number 32 Year 2004 "is a form of" condemnation without going through the judicial process "which is a challenge against the spirit of the principle of State of law ... as contained in article 1 paragraph (3) of the Constitution" (vide the applicant's Application page 8) and "the judge had incorrectly applied the provisions of article 244 and section 259 of the ACT 8 in 1981 because Prosecutors remain filed Cassation over the verdict of non true, it has been expressly prohibited in article 244 of the ACT 8 in 1981. The attitude of the General Prosecutor has an unpleasant backlash on loads of the convicted defendants are free, giving rise to problematic law in field practice of beracara on the face of the Court "(vide Plea the applicant pages 9 and 10). II. about the POSITION of the LAW (LEGAL STANDING) of the APPLICANT in accordance with the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011, stating that the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; 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. The above provision is emphasized in the explanation, that the definition of "constitutional rights" are the rights regulated in the Constitution. Thus, in order for a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the Constitution, then the first must explain and prove: a. credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as amended by Act No. 8 of 2011;

23 b. right and/or authority konstitusionalnya in the qualification which is considered to have been harmed by the enactment of the legislation being tested; c. loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. Further the Constitutional Court Verdict since the number 006/PUU-III/2005 and decision Number 011/PUU-V/2007, as well as subsequent rulings, have given the notion and restrictions cumulatively about loss of rights and/or constitutional authority that arise due to the enactment of legislation under article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as has been changed by law No. 8 year 2011 must meet the five terms i.e. : a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia in 1945; b. the applicant's constitutional rights that are considered by the applicant have been wronged by an act that was tested; c. Constitutional losses that the claimant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. Over things, then according to Government of unquestionable interest of the applicant is already right as the party considers the rights and/or authority konstitusionalnya harmed by the enactment of the provisions of article 244 and 259 Article CODE of CRIMINAL PROCEDURE and Article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004, as well as whether there is a constitutional disadvantage Applicants in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen , and whether there is a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested.

24 to the questions mentioned above, may need to take the following things: 1. That the applicant expressly acknowledged that Article 244 CRIMINAL PROCEDURE CODE does not conflict with the Constitution (vide Petitum Applicant number 2 page 10). 2. While Article 259 stated CODE of CRIMINAL PROCEDURE does not have the force of law when it is not interpreted as binding, "... may be filed once the petition for appeal by the Attorney General, except against the ruling of the free" (vide Petitum Applicant numbers 4 and 5) and; 3. Against Article 33 paragraph (1) of LAW Number 32 year 2004 be declared contrary to the Constitution when it is not interpreted as "... based on a court decision has acquired legal force anyway, ... including free verdict" (vide Petitum Applicant numbers 6 and 7). It clearly shows that there is actually no and/or not the authority of the Constitutional Court to examine the petition a court's authority because it is quo testing laws are meant to test the suitability between the content of certain laws with the contents of the basic law in accordance with article 24C Constitution which reads, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution" instead of testing one or several articles in a law or some article between some of the laws that are already in sync with the Constitution (vide article 10 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as has been changed by law No. 8 year 2011 which States, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for (a) test the law against the 1945 Constitution"); 4. That according to the Government, the petition of the applicant who confuse his desire to amend the CODE of CRIMINAL PROCEDURE and by article 259 Article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004 in accordance with the interpretation subjectively in order


25 importance solely to be reactivated as a Regent of East Lampung more concerned to issue the application of the clauses of the Act a quo, not because the articles of a quo unconstitutional or contrary to the Constitution, and thus not be the authority of the Court to judge; 5. That the authority of the Constitutional Court has actually been determined in principle and has fulfilled limitatif lex certa (principle of legal certainty) in the sense that it does not require interpretation other than what is stated in the text. Based on the arguments above, according to the Government's appeal to the Honorable Assembly of Judges of the Constitutional Court of the Republic of Indonesia are checking things a quo may give the verdict as follows: 1. Declare that the Constitutional Court is not authorized to examine the matter a quo; 2. The applicant's appeal is unacceptable (niet ontvantkelijk verklaard). However, if the Tribunal Judges the Constitution argued others, following the Government's explanation, please provide the following: III. The Government's explanation Over the testing Application of article 244 and section 259 Law – Law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) as well as Article 33 paragraph (1) of LAW Number 32 Year 2004. The petition against the provisions of article 244 and section 259 of the Act No. 8 of 1981 on the law of criminal procedure and Article 33 paragraph (1) juncto article 30 and article 31 of Act No. 32 of 2004, which States: Article 244 CRIMINAL PROCEDURE CODE which regulates that: "towards the given criminal verdict on the last level by the Court other than the Supreme Court, the defendant or the Prosecutor may submit a request to the Supreme Court of Cassation the examination except against the ruling of the free". Article 259 a CODE of CRIMINAL PROCEDURE regulates that: 26 "(1) in the interest of the public against any verdict which has gained strength from the Court fixed huum other than the Supreme Court, may be filed once the petition for appeal by the Attorney General; (2) the verdict of the Appeal for the sake of the public interest should not be detrimental to the parties concerned. " Article 30 of the LAW Number 32 year 2004 which regulates that: "(1) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the proposals of PARLIAMENT when expressed do crime crimes criminal threatened with the shortest 5 (five) years or more based on the ruling of the Court; (2) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the LEGISLATIVE proposal in a proven criminal offence referred to in subsection (1) on the basis of the Court ruling which has acquired permanent legal force ". Article 31 of LAW Number 32 year 2004 which regulates that: (1) "head area and/or regional Deputy Chief dismissed while the President without going through the proposals of PARLIAMENT because it claimed to do criminal acts of corruption, the crime of terrorism, treason, and/or criminal acts against State security; (2) the head of a Region and/or regional Deputy Chief dismissed while the President without going through the LEGISLATIVE proposal because it proved to do makar and/or conduct other divisive unitary State of the Republic of Indonesia that is declared with the Court ruling that has acquired force of law remain ". Article 33 of LAW Number 32 year 2004 which regulates that: (1) "Regional Head and/or the Deputy Head of the County that dismissed while article 30 referred to subsection (1), article 31, paragraph (1) and section 32 subsection (5) after going through the judicial process turns out to be proven innocent based on a court decision has acquired legal force anyway, at least thirty (30) days the President has merehabilitasikan and enable the 27 returned to the area and/or the Deputy head concerned areas until the end of his term; (2) if the head of the area and/or the area Deputy Chief dismissed while referred to in subsection (1) has ended his time in Office, the President has merehabilitasikan and not activate it again; (3) the procedures for the implementation of the provisions referred to in article 30, article 31 and article 32 provided for in government regulations ". The provisions of the above (except the Article 244 CRIMINAL PROCEDURE CODE) by the applicant are considered inconsistent and incompatible with article 1 paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the Constitution of the Republic of Indonesia in 1945, which States: article 1 paragraph (3) of the Constitution: "the State of Indonesia is a country of laws". Article 27 paragraph (1) of the Constitution: "all citizens simultaneously its position in law and Government". Article 28 D paragraph (1) of the Constitution: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". Article 28I paragraph (2) of the Constitution: "everyone has the right to be free from diskrimintatif treatment on the basis of any kind and is entitled to protection against discriminatory treatment". So with the introduction of Article 244 and 259 juncto Article CODE of CRIMINAL PROCEDURE Article 33 of LAW Number 32 year 2004 is considered to have been "detrimental ... the constitutionality of the applicant in the form of violation of his rights as guaranteed in the Constitution" (vide Plea the applicant page 10). Against the Applicant reason/assumptions above, Governments may provide clarification as follows: 1. That the applicant admitted in his petition and stated in petitumnya that the norm in the provisions of article 244 CRIMINAL PROCEDURE CODE is the norm of the Act that is valid and constitutional. So


28 the Government does not need to provide further clarification of the provisions against a quo; 2. That the proportional if discussed theoretically at a glance here against the kind of verdict, before the enactment of the CODE of CRIMINAL PROCEDURE court practices developed which divided the ruling free into two categories namely the verdict of non pure (zuiver vrijspraak) and a verdicts not pure (verkapte vrijspraak), Dr. Mudzakkir in conveying his plea in the trial testing Article 244 CRIMINAL PROCEDURE CODE (register 17/PUU-VIII/2010) stated that the verdict is an act of pure free didakwakan not proven legally and convincingly , meaning that there is no evidence supporting the charges against filed by prosecutors. While this is not pure free verdict occurred due to three indications are (1) the difference in doing the interpretation of law, (2) differences regarding the assessment of the evidence submitted in the proceedings, (3) there is a possibility there are differences of interpretation concerning the assessment of the application of the law against the evidence submitted in the trial so that it is reasonable and feasible if such differences should be resolved by the Supreme Court. Therefore, the existence of Cassation against verdicts which are not pure, that the Supreme Court can provide the streamlining, or attitude towards the interpretation of, attitude toward the assessment of the evidence about the tools and the attitude towards the application of the law against such evidence in court; Examination of the verdict not purely by the Supreme Court exercised having regard to the provisions of article 253 paragraph (1) of the CODE of CRIMINAL PROCEDURE States, "in the level of Examination carried out by the Supreme Court of Cassation on the request of the parties, as referred to by article 244 Article 249 and in order to determine: a. whether a rule of law is not applied or not applied as mustinya; b. is the right way to judge not implemented according to the provisions of the law; c. whether the Court has exceeded the limits of his authority.

29 so that the real non ruling material is not pure as has been described previously is the qualification examination as the Supreme Court of Cassation referred to Article 253 paragraph (1) of the CODE of CRIMINAL PROCEDURE. that the Government citing Legal Consideration the ruling of the Constitutional Court in its ruling of the number 41/PHPU. D-VI/2008 which confirmed that "the judiciary according to the Constitution must adhere to the principle of Justice, the principle of legal certainty and the principle of benefits so that the Court could not be dipasung only by sound legislation but must also dig the sense of justice by sticking to the substantive meaning of the law itself" thus Article 244 CRIMINAL PROCEDURE CODE which also poured in a decision of the Minister of Justice Number M 2 PW. 07.03 1983 Additional Guidelines about implementation of CODE of CRIMINAL PROCEDURE , can provide assurance of protection and legal certainty, because if the wrong verdict still could file a remedy of Cassation as in the Supreme Court's verdict on December 15, 1983 Register Number 275/Pid/1983. The verdict is not pure free not to do remedy of Cassation can clog the aspirations of Justice for victims of crime who have suffered due to criminal acts of crime and also a sense of Justice in society. This will endanger law enforcement practices in the future. It is feared the community especially the victim will no longer believe in the institution of law enforcement. The verdict is not pure free not to do remedy of Cassation does not correspond to the spirit of the rule of law, justice, and legal certainty. 3. That Article 244 CRIMINAL PROCEDURE CODE in its implementation be strengthened also by the presence of Yuriprudensi through a Supreme Court decision Number 287/K/Pid/1983 remains a breakthrough or a springboard for progressive thinkers of the law given the circumstances and conditions at a vulnerable moment will change, represented by the Minister of Justice's thinking (Ali Said): "against the ruling of the appeal requested can not be free, but based on the situation and conditions 30, for the sake of law, justice and truth, against the ruling of the encyclopedia can be requested of Cassation. This will be based on the jurisprudence ". The statement that needs to be underlined here is "for the sake of law, justice and righteousness", given the nature of human rights is not out of negligence, the judge, who is also a human being is not perfect. May also be intended as a correction and/or refinement to the existing legal system. 4. the CODE of CRIMINAL PROCEDURE Article 259 against That is just applicable to the broader public interest nature, and remember this was the mandate of the Act that gives privileges to the Attorney General, then the desire of the applicant to declare the Article 259 CODE of CRIMINAL PROCEDURE was contrary to the Constitution except added the phrase "except against the ruling of the free", it becomes irrelevant and thus render unconstitutional article a quo; 5. That against the provisions of article 33 paragraph (1) of LAW Number 32 year 2004 cannot be interpreted unilaterally and definitely is not a form of "punishment without judicial process" (vide the applicant's application page 8) so that it is contrary to article 1 paragraph (3) of the Constitution, because the clear intent of article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004 is to streamline the process of examination of the head area and/or Deputy Head of a region is suspected of committing a criminal offence under threat the punishment of imprisonment most short 5 (five) years, or because it was allegedly doing criminal acts of corruption, terrorism, treason and/or criminal acts against State security, where these are in accordance with the principle of Justice is fast, cheap, and simple as well as head of the county or his Deputy will only be rehabilitated if after going through the judicial process turns out to be proven innocent based on a court decision has acquired legal force remain (in kracht van gewijsde). Of course in the process reached the verdict that had the force of law still requires a long time because of his legal efforts at every level (including in this case the remedy of Cassation and/or Review). In the case of the applicant experienced by the public prosecutor filed an Appeal against the ruling of the


31 free, then by the applicant's appropriate because that's the norm of article 33 paragraph (1) of LAW Number 32 year 2004 of course can not be turned back on and/or rehabilitated by the Home Secretary because the claimant has not been found not guilty on the basis of a court decision has acquired legal force anyway. 6. In addition to the explanation of the norm in terms of a quo was also formulated in order to assist the regional head and Deputy Head of the area being affected become defendants in criminal cases, in order to concentrate the face legal proceedings that are being suffered (in this case the cassation) without being disturbed obligations charged by statute with quo in execution of tasks and functions; IV. CONCLUSION based on the above arguments and explanations, the Government appealed to the Chairman of the Constitutional Court Judges Assembly/who adjudicate the application for testing the provisions of article 244 and section 259 Law – Law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) as well as Article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004 can give a verdict as follows: 1. to declare that the applicant has no legal position (legal standing); 2. Rejects the application for testing the appellant entirely or Sha-whether appeal Applicant testing is unacceptable (niet onvankelijk verklaard); 3. Accept the Description of the Government as a whole; 4. Declaring the provisions of article 244 and section 259 Law – Law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) as well as Article 33 paragraph (1) juncto article 30 and article 31 of LAW Number 32 year 2004 does not conflict with the provisions of the Constitution of the Republic of Indonesia in 1945. [2.4] considering that the petition against the applicant, the House of representatives delivered a written description that is read out in the trial on 7 February 2012, as follows: 32 against the propositions of the applicant as set forth in the petition for a quo, the HOUSE of REPRESENTATIVES in the delivery of its views in advance outlining the legal position concerning (legal standing) can be explained as follows: 1. The position of the law (Legal Standing) Applicant qualifications that must be met by the applicant as a party have been arranged in the provisions of article 51 paragraph (1) of LAW Number 24 year 2003 on the Constitutional Court (hereinafter abbreviated The ACT of the CONSTITUTIONAL COURT), which stated that "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; 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 institutions of State. " Rights and/or constitutional authority in question the provisions of article 51 paragraph (1), reaffirmed in the explanation, that "the definition of" constitutional rights "are the rights set forth in the Constitution of the Republic of Indonesia in 1945." Provision of an explanation of article 51 paragraph (1) confirms this, that only the rights explicitly regulated in the Constitution only includes "constitutional rights". Therefore, according to the ACT on the Constitutional Court, in order that a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the Constitution, then the first must explain and prove: a. Credentials as the applicant in the application for a quo as stipulated in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; b. rights and/or authority referred to in konstitusionalnya "explanation of article 51 paragraph (1)" is considered to have been harmed by the enactment of the legislation. Regarding the constitutional parameters of loss, the Constitutional Court has given understanding and limitation of losses arising from the constitutional enactment of legislation should meet the 5 (five) 33 terms (vide the verdict Matter Number 006/PUU-III/2005 and Number 011/PUU-V/2007) is as follows: a. the existence of rights and/or constitutional authority the applicant granted by the CONSTITUTION of the Republic of Indonesia in 1945; b. that rights and/or constitutional authority the Applicant is deemed by the applicant have been wronged by an act that was tested; c. that the loss of rights and/or constitutional authority the applicant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then loss and/or constitutional authority who postulated it will not or no longer occur. In the fifth such terms are not met by the applicant in the case of testing the law with quo, then the applicant has no legal position qualification (legal standing) as a party to the applicant. Responding to the plea of the petitioner a quo, the HOUSE of REPRESENTATIVES holds that the applicant must be able to prove first whether the applicant as a party which considers the right and/or authority konstitusionalnya harmed over the enactment of provisions that petitioned to be tested, especially in the presence of reconstruct the loss against the right and/or authority to konstitusionalnya as the impact of the passage of provisions that petitioned to be tested. Against the position of the law (legal standing), the HOUSE of REPRESENTATIVES handed over entirely to the Assembly of the Judges of the Constitutional Court to consider and assess whether the applicant has the legal position (legal standing) or not, as regulated by article 51 paragraph (1) of the ACT on the Constitutional Court and on the basis of the ruling of the Constitutional Court Docket Number 006/PUU-III/2005 and Number 011/PUU-V/2007. 2. Testing the applicant's local government ACT in the petition for a quo, assumes that konstitusionalnya rights have been harmed by the enactment of provisions suspension without a court ruling that a law is related to the application of


34 "the principle of presumption of innocence" and not in keeping with the soul and spirit of the Constitution. Against the views of the Applicant, REPRESENTATIVES testified as follows: 1) That is based on article 1 paragraph (3) of the Constitution which mandated State Indonesia is a country of law, then in the country and the Government certainly has to be in line with the principles of the legal State, namely one of which should be based on laws-an invitation as a positive law. Based on the provisions of article 1 paragraph (3) of the Constitution, then in local governance should be constitutionally based on article 18 of the CONSTITUTION of 1945. 2) that the holding of local governance is set out in CHAPTER VI, article 18 paragraph (1) of the Constitution which States that "the State Union of Republic of Indonesia was divided into areas of the province and the province was divided into regencies and cities, which each province, County/City had local governance that is governed by law," selanjuthya provisions on the head area is regulated in article 18 paragraph (4) of the Constitution which States "the Governor the Mayor, Governor, and each head of the regional Government of the province, district, and city of democratically elected ". The provisions about the Organization of local governance are set Iebih further with legislation as mandated by article 18 paragraph (7) of the Constitution, which reads "the order and procedures for the Organization of local governance are regulated by law" 3) That the provisions of article 1 paragraph (2) and paragraph (3) and article 18 of the Constitution is the cornerstone of the constitutional organization of local governance to form Act No. 32 of 2004 on local governance as amended by law number 12 of the year 2008 , which regulate the conditions concerning the dismissal of the head of the region a darn Deputy head area. That on the basis of the constitutional foundation, the HOUSE held the provisions of the Act a quo associated with conditions of the suspension against the head region/Deputy Head of a region caught a criminal offence as provided for in article 30, paragraph (1) of article 31 paragraph (1) and section 33 of the ACT Government is organized in the frame of the 35 local governance in accordance with the principle of State of law embraced the Constitution Constitution and the principles of good and clean governance in governant countries. 4) That are associated with the test article a quo of the Act Government, need to understand the background in Public Explanations of the Act local governance that explains that "in order to optimize the function of guidance and supervision, the Government can apply sanctions to the organizers of regional government in drift and found a violation by the organizers of local governance. The sanctions referred to among others may include realignment of an autonomous region, the cancellation of the appointment of officials, the postponement and cancellation of the enactment of a policy area, whether unaccompanied local regulations, the decision of the head of the region, and the other provisions set out the area and can provide criminal sanctions that are processed in accordance with the laws and regulations ". 5) That on the basis of that provision, then it is right if the regional head/Deputy Head of the region who allegedly caught a criminal offence may be laid off temporarily, because on the one hand with the dismissed while the performance of the Government of the region are not bothered with the status of the head of the area as a suspect or defendant, and on the other hand of course right from the head area over the basis of the pre-guess not guilty remain assured in the legal process going. It is not at all contrary to the rights of any person over the legal position of the equation "," fair "legal certainty, since the provisions of article governing suspension of the head area and/or Deputy Head of the region as provided for in article 30, paragraph (1) of article 31 paragraph (1) and section 33 of the ACT Will apply to all the regional head/Deputy Head of the area including the applicant itself. Suspension provisions not only apply on the regional head/Deputy Head of the region, but applies also to any State officials/public officials subject to the legislation of the respective State agencies. 6) That therefore the HOUSE looked at conditions of suspension for any State officials/public official was an appropriate and proportionate arrangement, to maintain a positive image to the public office or institution, so that kiherja institutions concerned do not interfere with the status of 36 suspects a regional head/Deputy Head of the region. 7) that the suspension provisions against the head area and/or representative to the region, the Constitutional Court in its ruling of the matter Number 024/PUU-III/2005 page 39 page 40, and has argued that the suspension as set forth in article 31 paragraph (1) of the ACT is local government is the realization of the principle equation or kesederajatan before the law as intended by article 27 paragraph (1) and section 28D subsection (1) of the 1945 CONSTITUTION. The following is an excerpt from the opinion of the Constitutional Court referred to: "that the suspension action against public officials, in particular the officials of the State, which was allegedly doing criminal acts is important to support the works of the due process of law in order to prevent the concerned officials through his Office influenced proceedings or lawsuits that didakwakan him. Or vice versa, preventing law enforcement affected by the defendant's position as head of the region, in a culture that is ewuh legal pakewuh thus, the suspension thus realize the principle equation or kesederajatan before the law as intended by article 27 paragraph (1) or Article 28D paragraph (1) of the Constitution. Because, with the suspension of a head of a region and/or Deputy Head of a region of charged crimes, as provided for in article 31 paragraph (1) of the local government ACT, any person can directly see that anyone who commits a criminal offence or a crime then it will apply the same legal process, in the sense that the position held by a person must not obstruct or impede the person's criminal liability proceedings when he was allegedly doing a criminal offence. Due to the specific position held by a person who claimed to do a criminal act, according to a reasonable reasoning, can hamper the operations of the criminal justice process against the person concerned – known as obstruction of justice – by tegaknya the principle equation in advance the law (equality before the law) must have legal measures to abolish these obstacles.


37 in relation to the application for a quo, the administrative action in the form of suspension of a regional head and/or the Deputy Head of the area claimed to perform a criminal act as set forth in article 31 paragraph (1) of the ACT is thus the regional legal measures to negate the potential obstruction of justice "; 8) That are related to the provisions regarding the "suspension" of the Constitutional Court have also argued the suspension is an action which is quite fair and proportional. It clarified and elaborated in the Constitutional Court Verdict Number 133/PUU-VII/2009, that in consideration of the law mentions "That Article 32 paragraph (2) Letter c of ACT 30/2002, i.e. in terms of the leadership of the KPK became the defendant in the criminal offence of crimes be removed from Office, is a form of punishment or sanctions, but the giving and the overthrow of sanction or punishment must advance through a verdict of criminal justice in the case of didakwakan , so that the constitutional rights of the Applicant remains respected, protected and fulfilled from possible arbitrary actions of the State authorities, such as police, prosecutors, judges, and other government officials as well as the community. Thus the suspension against the leadership of the KPK is fair enough and action is proportional to the leadership of the KPK is set as suspect in order to provide a balance between keeping the smooth execution of the tasks and authorities of the KPK and the protection of the rights of citizens who became Chairman of KPK ... (vide the Constitutional Court Verdict Number 133/PUU-VII/2009 dated November 25, 2009, the letter e, pp. 69-70) 9) that for persandingan against the suspension of the provisions set forth in article 30 paragraph (1) and article 31 paragraph (1) of the Act a quo of the HOUSE looked at the need to elaborate on the provisions governing the suspension for State officials/public officials such as: a. Article 24 paragraph (1) and Article 25 paragraph (1) and paragraph (2) of LAW Number 24 year 2003 on the Constitutional Court , which reads: article 24 paragraph (1) "Constitution before Judge dismissed with disrespect, was dismissed from his post by decision while the President 38 at the request of the Chairman of the Constitutional Court, unless the reason for dismissal as referred to in article 11 paragraph (2) letter a". Article 25 paragraph (1) and paragraph (2) (1) If a judge against the Constitution there is a restraining order, the judge concerned the Constitution laid off temporarily from Office. (2) the constitutional Judges dismissed from his post when prosecuted while in advance of the courts in criminal cases as referred to in article 9 paragraph (4) of law No. 8 of 1981 on the law of criminal procedure even though it is not withheld. b. Article 13 paragraph (1) of ACT No. 5 of 2004 about the changes to the ACT No. 14 of 1985 on the Supreme Court, which stated that "the Chairman, Vice Chairman, Chairman young, and members of the Supreme Court Justices before it laid off not respectfully referred to in article 12 paragraph (1) may be dismissed from Office by the President while over the proposal of the Supreme Court." c. Article 34 paragraph (1) and article 35 of ACT number 22 in 2004 about the judicial Commission, which reads: article 34 paragraph (1) "the Chairman, Vice Chairman, and members of the judicial Commission before dismissed not respectfully as stipulated in article 33 paragraph (1) may be dismissed from Office by the President while, at the suggestion of the judicial Commission; Article 35 (1) In response to a Judicial Commission members there are arrests followed by incarceration, members of the Judicial Commission was dismissed from Office. (2) If a member of the Judicial Commission is required in advance of the courts in criminal cases without being held as in the law of criminal procedure, which concerned can temporarily dismissed from Office. d. Article 15 of LAW number 16 of 2004 about the Prosecutor's Office, 39 reads: (1) When there is an arrest warrant which was followed by the detention of a Prosecutor, by itself the Prosecutor concerned was dismissed from his post by the interim Attorney General. (2) in the case of the Prosecutor is required in advance of the courts in criminal cases as referred to in article 9 paragraph (4) of law No. 8 of 1981 on the law of criminal procedure without being arrested, the Prosecutor can be dismissed from Office by the Attorney General. e. Section 219 subsection (1) of the ACT Number 27 of 2009 about the people's Consultative Assembly, the House of representatives Rajkyat, regional representative Council and Regional Representatives, stating that: "members of the HOUSE of REPRESENTATIVES dismissed while because: a. be a defendant in a lawsuit follow general pidanal threatened with imprisonment 5 (five) years or Iebih; or b. be a defendant in the case of the special criminal act. f. Article 24 paragraph (3) of LAW Number 39 in 2008 of the Ministry of State, stated that "the President suspend Ministers who claimed to do criminal acts which were threatened with imprisonment 5 (five) years or more." That on the basis of the description, the HOUSE of REPRESENTATIVES holds that there is no contradiction between article 30 paragraph (1), article 31 paragraph (1) and section 33 of the ACT will, with article 1 paragraph (2) and paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1) and section 281 para (2) of the Constitution. 10) that in addition to view constitutionally, theoretical, juridical and as outlined above, related to the testing of the material conditions of the suspension, viewed the need to look at the background of the formulation of the clauses governing the dismissal while in a discussion meeting of the BILL a treatise quo cited most and more will be delivered later through the clerk of the Constitutional Court. As for the partial quote treatise discussion of Regional Head suspension and/or Represented in the meeting Area Head Panja July 25, 2004 as follows: Government: the next mechanism stops either temporary or permanent in nature, this if in law number 22 does not


40 simply arranged, necessitating a refinement-refinement in terms of dismissal or stop. Well this is where the significance of changes in Act No. 22 of it, these are things that are of this kind. Well if from law enforcement agencies that has set the legal status of the head of a region and Deputy Head of the area as a defendant, that's where he can be dismissed in the meantime. Thus the Government has argued in order for the dismissal of the head of the Regional settings and the Deputy Head of the region given the policy between the stop and the dismissed include the mechanism stops. So what is presupposed by the earlier dear Mr. Chairman it in dictum-dictum of the proposals presented by the Government was terakomodasikan, then what do we say this formulation proposed by the Council or by the Government later nature complement each other and also co-exist, because in essence it provides settings against dismissal or stopping of the head or Deputy Head of the Regional area. So Mr. Chairman we respect, mother and father of all, thank you. Chairman of the Panja I think we wouldn't mind if during that process is underway it laid off temporarily, so long as the process Yes sepatutnyalah laid off temporarily for not possible surely will bother so if its position were not dismissed a temporary nature. But if indeed it turns out that she is not guilty of an award in a formulation that yes he direhabilisir, but if it turns out to be an award he is guilty huh Iangsung dismissed. F.PG (N Deputy Mochtar, Sh., MH.) It stops anyone dismissed outright, there are laid off temporarily. For example if the proposed suspension of the PARLIAMENT when she was subjected to a process of law up to the criminal verdict was fixed. That there is indeed some discute there, examples such as the head of the Region dismissed from Office temporarily until the Court ruling is fixed. It means starting from the process of investigation to the legal nature of the remains, the fixed temporarily. After the final 41 then fixed it so, but the Government was not so diusulan, for example for example Article 59 paragraph (1) and section 60 paragraph (1) there are 2 (two) terminology criminal acts there without going through the process can be dismissed by the Central Government without going through the process that is to say, the process is the proposal of PARLIAMENT but he suspected, well this is also something I think needs to be a position that really we need to pay attention to. From her screenplay, of some action that if implemented it due to the ruling. The PARLIAMENT was dismissed while when he had legal proceedings formally until the magnitude of the law anyway. The Government does not berhentikan a while, if she is suspected of committing a criminal offence under threat of 5 (five) years and treason. Then the suspension by the President was that the portion of the HOUSE he had to go through a process of Supreme Court first. If the Government does not, she is purely through the HOUSE but turned over to law enforcement. Well there are a few things that I think back and forth but the plot that doesn't fit. F.PG (DRS. Ferry Mursydan Baldan) that I want to convey is I guess the meaning of the election directly to the suspension. The first is a party which has keberhakan suspension, while he is elected directly by the people, so also do we interpret this wrongly. The second is the question of suspension of this I do not see that passion for the suspension of regular Iuar there's even mentioned a few things then do not need LEGISLATIVE approval, but there is no formula that says where he could return to his post. But in my opinion the principle that is there is a process of balancing between the trouble to become the head of the region with ease was revealed. Well I guess we have to combine the parties which had keberhakan, we will not likely hold a referendum for it, but I think for example the HOUSE of REPRESENTATIVES in what position? I think its legal status and 1 (one) the important thing is the value of this mechanism which I guess has also become an important mechanism of non-active Returns or stop a while, well when he's done how returns 42 ininya? That means affirming the parties or institutions which could be stated on one mechanism like what can be stated he could stop a while, the mechanism was also soon restore him in his position. F. DESIGN (The Word Java Daely, SH.) Well the second one also so, last question kan suspension, whereas our approach with 52 apersi of the House. Any threat of pidananya origin is already disidik, claimed later in court that want samalah Yes 2 (two) years of his threat to 1 (one) year should therefore not only efficiency and Government accredited approach but that the bersangkutankah problem. The name was problematic means kan will have to be dismissed in the meantime. Well based on the 2 (two) also without going through 5 years it was exactly the same. Well then who follows well this does have the force of law that remain the 3 (three) had said exactly the same. The question of who exactly the same it is also treason that the head Area is indeed still are perceived to be an Indonesian Government! area, so without going through any LEGISLATIVE process that also has to do that our proposal before the Chairman brought in this Synchronization is no good Team we elaborsi first, we exploration first because this light is the basic principle of herus have implications against the initial material that we had persandingkan and discussed together, thank you Mr. Chairman. URF.PPP (H.m. Thahir Saimima, SH.) Therefore according to our efficient, suspension like this don't need to we set in this Act. Perhaps we are following a pattern like the one in the presidential elections Act. Why I say so that there is a political process, there is a legal process. The legal process that is short, clear, fast and responsive politically. So if someone's Head Area has been doubted or suspected by the PARLIAMENT or by the people in his area that he had committed an act of law. Chairman of the Panja Then the 2 (two) also concerns the problem of the parties


43 involved in the process of dismissal, well this there must be a 1 (one) agreement amongst us whom of course if in our opinion we'll still rests upon the legislation already Iebih there used to be. One of them concerns the issue of the role of PARLIAMENT was in the Act of Susduk the proposed appointment and dismissal of the head of the region, meaning that it may be in the process of pengusulannya it can be done by PARLIAMENT because the Susduk has given the assignment to it. Then maybe the parties become parties dismiss this who ya might momentarily the parties certainly raised it anyway. But in that context the assertion that in principle should be distinguished which is qualified that stops that are temporary or permanent in nature. The HOUSE in the draftnya it Iebih on the process of dismissal is a suspension that is just special to the Iingkup space that concerns criminal problem Sir. Government: (Prof. Dr. Abdul Gani Abdullah, sh., LLM,/Dirjen law and legislation Ministry of Justice and human rights) See this then operational implementation in this article there is called the penalty of at least 5 (five) years, treason and so on. Then there is the relationship with the suspension however if the investigation against the punishment threatened at lack of 5 (five) years he could be put on hold until court proceedings lasting hold. Now, if he can be rightfully detained teken letters and all sorts of he cannot run the task. That's the reason why the Government suggested there is instrument suspension. Then last said what if continuously? If it turns out the suspension until the time of his devotion Yes he just dismissed it simply logic. Politically it might be interpreted that crippled or in the saw. So the logic was used so that the outline of the case. Well, the question of the Organization of the judiciary who long for example it should not be construed as an obstacle to doing stops temporarily. When it's held down continuously until the court proceedings extended. However 44 organization of local governments will experience obstacles and there the necessity of the existence of the suspension. Chairman of the Panja either so that the bottom line to the overall substance of it seems we all have 1 (one) deal, it started off I said jumper ranging from causes a lunch, for treatment of the cause of dismissal was different, one example above already mentioned by Mr. Farhan there should be just as concerned the issue of prohibitions, sanctions against, in the reasons for the program there is a course of treatment-treatment it will be different both in our time to formulate the process as well as his actions , the extent to which action is temporary, until discharged and others. 3. Testing Article 244 and 259 Article CODE of CRIMINAL PROCEDURE related to the testing of article 244 and 259 Article CODE of CRIMINAL PROCEDURE, the HOUSE argues that it is not a question of the constitutionality of norms but rather a question of the application of norms by law enforcement authorities, as has been said by the applicant in the application for a quo on page 6 and 9. In Figure 2 a petitum permohoan quo also stated that the provisions of article 244 CRIMINAL PROCEDURE CODE does not conflict with the CONSTITUTION of 1945. Therefore PARLIAMENT will not provide responses related to Article 244 CRIMINAL PROCEDURE CODE. Section 259 is the CODE of CRIMINAL PROCEDURE is one of the exceptional remedy of Cassation submission form for the sake of the public interest against a court decision which has acquired the force of law. This means that while there may be appeal from the public prosecutor, but still does not hinder the execution of the verdict which had the force of law. Thus the Court's verdict against free already have permanent legal force, then although there are tremendous remedy of Cassation of the Prosecutor under article 259 CODE of CRIMINAL PROCEDURE, it does not preclude the right of a person to acquire all its rights including rights as regulated in article 33 paragraph (1) of the ACT Government.

45 thus PARLIAMENT may invoke the Tribunal Judges gave amar verdict as follows: 1. the appeal a quo refused to entirely or Sha-whether or not appeal a quo is unacceptable; 2. Declare the HOUSE accepted description for entirely; 3. Declaring the provisions of article 30, paragraph (1) of article 31 paragraph (1) and article 33 Law Number 32 of 2004 concerning Regional Government does not conflict with article 1 paragraph (2) and paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the CONSTITUTION of the Republic of Indonesia in 1945; 4. Declaring the provisions of article 30, paragraph (1) of article 31 paragraph (1) and article 33 Law Number 32 of 2004 concerning Regional Government still have the force of law. 5. Declares Article 244 and section 259 of the Act No. 8 of 1981 on CRIMINAL PROCEDURE CODE does not conflict with article 1 paragraph (2) and paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1) and article 28I paragraph (2) of the CONSTITUTION of the Republic of Indonesia in 1945; 6. Declares Article 244 and section 259 of the Act No. 8 of 1981 on the fixed CODE of CRIMINAL PROCEDURE have the force of law. [2.5] considering that the appellant delivered the written conclusions are received at the Registrar of the Court on February 16, 2012 which substantially remained with its founding; [2.6] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the news events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the principal applicant's application is the problem so that the Constitutional Court (hereinafter the Court) stated the phrase "... except against the verdict" in article 244 of the Act No. 8 of 1981 on the law of criminal procedure (State Gazette Republic Indonesia


46 in 1981 the number 76, additional sheets of the Republic of Indonesia Number 3209, hereinafter the CODE of CRIMINAL PROCEDURE) is not contrary to the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution), as well as having the force of law as binding. In addition the applicant pleading for testing the constitutionality of article 259 CODE of CRIMINAL PROCEDURE and article 33 paragraph (1) of Act No. 32 of 2004 on local governance as amended by law number 12 of 2008 about the second amendment in the Law Number 32 of 2004 concerning Regional Government (State Gazette of the Republic of Indonesia Number 59 in 2008, an additional Sheet of the Republic of Indonesia Number 4844, hereinafter the ACT 32/2004 12/2008 LAW juncto) against article 1 paragraph (3) Article 27, paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the CONSTITUTION of 1945; [3.2] considering that before considering the subject matter of the petition, the Court shall first consider: a. the authority of the Court to adjudicate a petition for quo; b. the position of the law (legal standing) Applicant; The authority of the Court [3.3] considering that Article 24C paragraph (1) of the Constitution states one authority the Court is adjudicating on the first and last level that an award is final to examine legislation against the CONSTITUTION of 1945; [3.3.1] considering that the applicant's plea against petitum so that the Court declares the phrase "... except against the verdict of non 244 Article" in the CODE of CRIMINAL PROCEDURE, it is not contrary to the Constitution and has the force of law as binding, the Court Verdict in consideration as Number 56/PUU-IX/2011 March 15, 2012 considering, among others, the Court held that, "the provisions of article 24C, paragraph (1) should the Constitution meant that the test object can be to the Court is payload material verses , article, and/or section in the legislation contrary to the Constitution. It is further elaborated by the provisions of the Act that the applicant clearly outlines the mandatory, "the charge material in verse, chapter, and/or parts of the act considered contrary to 47 of the Constitution of the Republic of Indonesia in 1945" [vide Article 51 paragraph (3) the letter b of LAW COURT]. Against the charge of matter paragraph, chapter, and/or parts of laws already enacted voluntarily by the applicant and in accordance with the 1945 CONSTITUTION postulated is not a test is the object of the Act. All the laws that have been enacted by the authorities legally must be considered in accordance with the Constitution until repealed by the framer of laws or declared unconstitutional by court ruling based on the evidence filed with the application for that provision is contrary to the Constitution ". All considerations and amar Court ruling regarding testing the constitutionality of article 244 CRIMINAL PROCEDURE CODE the award Number 56/PUU-IX/2011 March 15, 2012 mutatis mutandis into consideration in ruling a quo, so that the Court is not authorized to adjudicate a petition for quo; [3.3.2] considering that about testing the constitutionality of article 259 CODE of CRIMINAL PROCEDURE and article 33 paragraph (1) of the ACT 32/2004, because the applicant is petitioned by testing legislation against the Constitution and the clauses had never petitioned testing konstitusionalitasnya then the court authorities put on trial; The position of the law (Legal Standing) the applicant [3.4] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who consider the rights and/or konstitusionalnya the authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the 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: 48 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 constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.5] considering that the Supreme Constitutional Court ruling since the number 006/PUU-III/2005, dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007, dated September 20, 2007, and subsequent rulings, held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five criteria, 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 losses must be the specific constitutional (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 losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.6] considering that the applicant argued that as a citizen of Indonesia has the constitutional rights set forth in article 1 paragraph (3), article 27 paragraph (1) of article 28D, paragraph (1), and article 28I paragraph (2) of the Constitution which States: article 1: (3) Country Indonesia is a country of law; Article 27: (1) All citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya;


49 Article 28D: (1) everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law; Article 28I: (2) every person has the right to be free from discriminatory treatment on the basis of anything and is entitled to protection against discriminatory treatment; According to the applicant the right of these konstitusionalnya have been harmed due to the enactment of Section 259 CODE of CRIMINAL PROCEDURE which States: (1) in the interest of the law against any verdict which has acquired permanent legal force of other courts other than the Supreme Court, may be filed once the petition for appeal by the Attorney General. (2) the verdict of the appeal in the interest of the law should not be detrimental to the parties concerned; and article 33 paragraph (1) of the ACT 32/2004 12/2008 LAW juncto which States, "the regional Head and/or the Deputy Head of the County that dismissed while as stipulated in article 30 paragraph (1), article 31, paragraph (1) and section 32 subsection (5) after going through the judicial process turns out to be proven innocent based on a court decision has acquired legal force anyway, at least thirty (30) days the President has merehabilitasikan and reactivate the regional head and/or the Deputy head concerned areas up to the end of his term. " [3.7] considering that the Court needs to be clarified that the legal interests of Cassation petition, by forming the legislation placed on Chapter XVIII of the EXTRAORDINARY REMEDY, is considered Part of the examination of the legal interests of Cassation Level. Thus, the petition for cassation in the interest of the law, not ordinary remedy. Because that can be appealed in the interest of the law are merely the Cassation's verdict which has acquired permanent legal force which means it's been executed then it will not be detrimental to the parties concerned. It is also 50 asserted in article 259 paragraph (2) of the CODE of CRIMINAL PROCEDURE. A ruling by the Court of first instance or appellate level of the judiciary or the first level or the level of judicial appeal from the military who have already acquired the force of law that's still can appeal in the interest of the law appealed by the Attorney General; The meaning of Cassation in the interest of the law is the existence of the possibility of a verdict at the first instance or appellate remedies are not done by the public prosecutor or by the defendant, making an award obtain permanent legal force, even though the ruling contains errors or errors of law that cannot be repaired. To correct such a verdict can only be reached through a petition for appeal in the interest of the law. In contrast to the decision of the State administration that in it there is a clause, "If there is confusion later in this decision, the repair will be done properly", so as to enable the concerned State administration officials refine his decision; [3.7.1] considering that according to the Court, the provisions of article 259 CODE of CRIMINAL PROCEDURE does not harm the constitutional rights of the applicant with regard to article 1 paragraph (3) of the Constitution which States, "the State of Indonesia is a country of laws". Thus with the provisions of article 259 CODE of CRIMINAL PROCEDURE that allows the existence of confusion or error corrections applied the law, means became a means of control over the application of the law. Moreover, according to the provisions of article 259 paragraph (2) of the CODE of CRIMINAL PROCEDURE of Cassation verdict in the interest of the law required should not be detrimental to the interested parties; [3.7.2] considering that the equation of the position before the law and the Government, according to the Court, no one was harmed by the enactment of Section 259 CRIMINAL PROCEDURE CODE since it is addressed to "all" the verdict of the criminal who has acquired the force of law, which has been terminated by a court other than the Supreme Court; [3.7.3] considering that similarly about legal certainty and fair treatment of the diskrimatif, already expressly mentioned in article 259 CRIMINAL PROCEDURE CODE that toward the criminal verdict which has acquired permanent legal force which were severed by the courts other than the Supreme Court can be petitioned Cassation in the interest of the law by the Attorney General, and even then only once and apply 51 to everyone without distinction of any kind. Thus, according to the Court there is no element of legal uncertainty as well as discriminatory elements in article a quo; [3.8] considering that about testing the constitutionality of article 33 paragraph (1) of the ACT 32/2004 juncto ACT 12/2008, which according to the applicant the phrase "... based on a court decision has acquired legal force anyway ..." which, according to the applicant is contrary to the Constitution if not coupled with the phrase "including the verdict". According to the Court, a verdict which has acquired permanent legal force, should be implemented. As for the question of which is the verdict that the law still gaining strength and should be implemented or executed, whether the verdict is already no more remedy which is, or includes, the verdict or a verdict that although there is still a remedy, but the remedy is incredible, it can be executed, or are all waiting for the new review's verdict is executed, it is a matter of the application of the law the constitutionality issue, not the norm. Although Article 268 subsection (1) of the CODE of CRIMINAL PROCEDURE States, "Request a review of an award shall not suspend or stop the execution of the verdict", but in its application, execute the verdict prior to the decision of a review and some were executed after the verdict the verdict review. Similarly, the provisions of article 244 CRIMINAL PROCEDURE CODE which was also appealed by the claimant to be declared in accordance with the Constitution, but in its application against the decision of a freely also exists that petitioned the examination of Cassation. Thus, the applicant's plea that begged the addition of the phrase, "including free verdict" in article 33 paragraph (1) of the ACT 32/2004 juncto ACT 12/2008 is not an issue of constitutionality of norms, but rather the problem of application of the law; [3.9] considering that, because of the applicant's plea relating to Article 244 CRIMINAL PROCEDURE CODE and article 33 paragraph (1) of the ACT 32/2004 juncto ACT 12/2008 the Court not authorized put on trial, and testing Article 259 CODE of CRIMINAL PROCEDURE the applicant has no legal position (legal standing), then the subject matter of the petition of the applicant are not considered;


52 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 adjudicate the petition Article 259 CODE of CRIMINAL PROCEDURE and is not authorized to judge the Article 244 CRIMINAL PROCEDURE CODE and article 33 paragraph (1) of the ACT 32/2004 juncto ACT 12/2008; [2.6] the applicant has no legal position (legal standing) in order to apply the test of article 259 CODE of CRIMINAL PROCEDURE; [4.3] the subject matter of the petition is not considered. Based on the Constitution of the Republic of Indonesia in 1945 and considering Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia number 70 in 2011, an additional Sheet of the Republic of Indonesia Number 5226) and Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157 Additional Sheets, the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, stating the applicant's plea is not acceptable to all. The case was decided in the meeting of the provisional Judges, attended by the nine Judges of the Constitution that is, Moh. Mahfud M.D. as Chairman and Member, Achmad Sodiki, Muhammad Alim, m. N Deputy Mochtar, Ahmad Fadlil Sumadi, Anwar Hamdan Zoelva, Usman, Harjono, and Maria Farida Indrati, each as a member, on Wednesday, the fourteenth, the month of March, year two thousand twelve, and is spoken in the plenary session of the Constitutional Court 53 open to the public on Tuesday, the date of the twenty-seventh of March year two thousand twelve, by eight Judges of the Constitution that is, Moh. Mahfud M.D. as Chairman and Member, Achmad Sodiki, Muhammad Alim, m. N Deputy Mochtar Fadlil, Ahmad Usman Anwar, Sumadi, Hamdan Zoelva, and Maria Farida Indrati, each as a member, with accompanied by Cholidin Nasir as a substitute Clerk, and attended by the applicant/power, Government or representing, as well as the House of representatives or representing. Chairman, ttd. MOH. Mahfud Md. Members, ttd. Achmad Sodiki ttd. Muhammad Alim ttd. M. N Deputy Mochtar ttd. Ahmad Fadlil Sumadi ttd. Usman Anwar ttd. Hamdan Zoelva ttd. Maria Farida Indrati CLERK of the surrogate, ttd. Cholidin Nasir

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