Test The Material Constitutional Court No. 5/puu-Ix/2011 2011

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 5/PUU-IX/2011 Tahun 2011

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Microsoft Word-5 VERDICT PUU KPK HAS URBACA.doc todung RULING number 5/PUU-IX/2011 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and disconnected things of the Constitution on the first and last levels, dropping a verdict in the case of application for Testing Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission against the Constitution of the Republic of Indonesia in 1945 , submitted by: [1.2] 1. Name: Ferry Amsari, S.H., M.H.; Occupation: Lecturer At The University Of Andalas Padang; Address: Street Campus Sweet Limes, The Faculty Of Law Of The University Of Andalas, Padang, West Sumatra; 2. Name: Ardisal, SH.; Occupation: Deputy Director Of LBH Padang; Address: Jalan Kampung Tanjung Simpang Kuranji, Padang, West Sumatra; 3. Name: Drs. Teten;; Occupation: Private; Address: Jalan Borneo II/8 RT. 007/RW 006 Gedong, Pasar Rebo, East Jakarta; 4. Name: Zainal Arifin Mochtar Husein; Occupation: Lecturer In The Law Faculty Of The UNIVERSITY; Address: Perum Dayu Permai b. 99 RT/RW 40 10, Sinduhardjo, Ngaklik, Sleman, Yogyakarta; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT I;

2 Indonesia Corruption Watch (ICW), in this case represented by Danang Widoyoko as coordinator of the ICW, constitute legal entities engaged in the Indonesia corruption eradication; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-APPELLANT II; On the basis of a special power of attorney dated December 6, 2010, authorizes Abdul Azis, S.H., Abdul Kadir Wokanubun, S.H., Abdul Muttalib, S.H., Ahmad Irwandi Lubis, S.H., Alvon gift of Palma, S.H., Dasmy, S.H., Donald Delda Pradana, S.H., Martha S Carolina, S.H., Chairuddin, S.H., the Era of full moon Saris, S.H., Erna Ratnaningsih, S.H., LL. M., Eti Gustina, S.H., M.H., Febri Diansyah, S.H., Hospinovizal Sabri, S.H., Indra Firsada, S.H., Ershad Tamrin, S.H., M.H., M. Saiful Aris, S.H., M.H., M. Farid, S.H., The Empress Caroline, S.H., Mercy Herman Umboh, Sh., Muslim Muis, S.H., Ni Luh Gede Yastini, S.H., Nuriono, S.H., Nurkholis Hidayat, S.H. Poniman, s., Hi., Roni S, S.H., Siti Rahma Mary, S.H., m. Si., Surya Adinata, sh., Suryadi, S.H., Syamsul Munir, s. Hi., Syahrijal Munthe, sh., Tandio bawor purbaya, S.H., Vino oktavia, S.H., Veri Thys Michels, S.H., Yurika N, sh., Zulkifli Hasanuddin, S.H., Wahrul Fauzi Silalahi, S.H., all Advocates and Legal Assistance-servants, who are members of a team of Advocacy ACT KPK , choose a domicile law at Jalan Diponegoro, Central Jakarta Number 74, either singly or together to act 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; Hear and read the affidavits of the Government read the affidavits of the House of representatives; Examine the evidence from the Applicant; Hear experts from the description of the Applicant; Read the written conclusions of the Applicant; 2. SIT the MATTER [2.1] considering that the applicant had filed a petition with the application letter dated December 20, 2010, and received 3 that are listed in the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) on Tuesday, January 4, 2011 by registration of case No. 5/PUU-IX/2011, which has been repaired and received at the Registrar of the Court on January 31, 2011 and February 21, 2011 , outlining the following matters: a. The AUTHORITY of the CONSTITUTIONAL COURT 1. That Article 24 paragraph (2) of the third Change Constitution states: "the power of justice done by a Supreme Court and the judiciary under it and by a Constitutional Court"; 2. That Furthermore Section 24C subsection (1) changes the third Constitution states: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the CONSTITUTION, severing of disputes the State agencies the Authority those powers granted by the CONSTITUTION, severing the dissolution of political parties and break the disputes about Election results"; 3. That on the basis of the foregoing, the Constitutional Court has the right to conduct its test or Act (the ACT) against the CONSTITUTION is also based on article 10 paragraph (1) of the ACT Number 24 in 2003 about the Constitutional Court which declared: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final as to: (a) test the law against the Constitution of the Republic of Indonesia in 1945"; 4. The Constitutional Court was established as the protective institutions of the Constitution (the guardian of constitutison). If there are laws that contain or are formed contrary to the Constitution (inconstitutional), then the COURT can cancel with menganulirnya the existence of the legislation as a whole or per chapter; 5. That as protector of the Constitution, the Constitutional Court also has the right to give an interpretation of a provision of the articles of the Act in order that accords with the values of the Constitution. The interpretation of the Constitutional Court against the constitutionality of article-article legislation is only the tafsir (the sole interpreters of the constitution) which has the force of law. So it is against articles that have meaning 4 ambiguous, unclear, and/or multi tafsir can also requested its interpretation to the Constitutional Court; 6. That on the basis of the above, then obviously the Constitutional Court is authorized to investigate and adjudicate a petition for this testing. That by the application object because this is a test Article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission (hereinafter referred to as the ACT of KPK) against Article 28D paragraph (1) of the Constitution. Then based on that, the Constitutional Court is authorized to investigate and adjudicate a petition for quo; B. the position of the law (legal standing) 2726 Preamble Applicants stated that the goal of the Republic of Indonesia is to protect all the Nations and all the spilled blood of Indonesia and to promote the general welfare, the intellectual life of the nation, and the world order carry out based on independence, the immortal perdamainan and social justice. In General – regardless of the ideology that embraced-every country is obliged to convene the minimum functionality that is an absolute must have. Like implementing the reform (law and order) to achieve a common goal and prevent clashes-clashes in society as a stabilizer, lobbies for the welfare and prosperity of its people. Because tegaknya necessary to ensure State sovereignty and anticipate the possibility of an attack that could threaten the survival of the nation, uphold justice through the judiciary. The fulfilment of economic, social and cultural (Ekosob) is a form of State obligation to realize prosperity and social justice. Nowadays many once the fulfillment for the rights over land, housing, education and health are delayed due to the fulfillment Fund corruption. Very precisely when corruption is a serious threat or can be categorized as (extra ordinary crime) that destroy joints and country life. Corruption has caused the economic crisis and millions of residents chained poverty, damaging the legal system and hindering the operations of the system of Government that is clean and democratic so that by itself has hampered the country's goal to satisfy social welfare. In line with the objectives of the State in order to realize a just, prosperous society, and prosperous based on Pancasila and the 1945 CONSTITUTION. The Government has


5 is committed to enhance the professionalism, effectiveness and efficiency of the eradication of criminal acts of corruption by establishing institutions of the corruption eradication Commission. Even Indonesia has also ratified the international treaty the eradication of criminal acts of corruption (UNCAC-United Nation Convention on Corruption;) by Act No. 7 of 2006 on UNCAC Ratification. In order to realize it, Indonesia has established the Countries institutions superbody which can perform duties outside the customary legal apparatus namely former KPK (corruption eradication Commission). The establishment of institutional aims to eradicate the crime of corruption that threaten and impede the achievement of the ideals of the nation i.e. the welfare of the people. The applicant is an individual citizens and legal entities concerned Indonesia against the eradication of corruption. Article 34 of the ACT test submissions KPK to the Constitutional Court is an attempt a citizen or legal entity, whether singly or collectively to build community, the nation and the country. In addition, it also aims to maintain the commitment of Indonesia to realize the corruption eradication of corruption towards the attainment of the objectives of the clean country Indonesia i.e. increase social welfare and social justice. Article 51 paragraph (1) of Act No. 24 of 2003 about the Constitutional Court declared, "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: (a) individual INDONESIAN CITIZEN, (b) law of indigenous communities throughout the Union is still alive and in accordance with the development of society and the principle of the unitary State of INDONESIA regulated in laws, (c) public and private legal entities, or (d) the institutions of the State". Applicant I, which consists of four people: Ferry Amsari, S.H., m. h., Ardisal, S.H., Drs. Teten;, and Zainal Arifin Jonathan Husein, S.H., LL. M, is a citizen of Indonesia as evidenced from the population of the Republic of Indonesia Sign Card (proof of P-1). Whereas the applicant II is the legal entity which is evidenced by the bevy of shaped articles of a bevy of ICW (proof of P-3). Thus the provisions as regulated in Article 51 paragraph (1), subparagraph (a) and (c) Act No. 24 of 2003 about the Constitutional Court already fulfilled.

6 However, the applicant realized to prove legal standing should be explained the relationship of causality (causal verband) and potential loss due to the existence of a real constitutional or the enactment of a piece of legislation, namely Article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission against Article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945. Referring to the ruling of the Constitutional Court the number 006/PUU-III/2005 Docket number 11/PUU-V/2007, the applicant must qualify as follows: a. the existence of the applicant's constitutional rights provided by the Constitution of the Republic of Indonesia, 1945; b. that the constitutional rights of those applicants deemed by the Applicant have been wronged by an act that was tested; c. Constitutional losses that the Claimant in question are special or specific and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship between the harm 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. Five terms as mentioned above is explained more by the Constitutional Court through the ruling of the Number 27/PUU-VII/2009 in testing formyl second amendment Supreme Court Act, which speaks as follows: "From the practice of the Court (2003-2009), private CITIZENS, especially tax-payer (tax payer; vide Verdict Number 003/PUU-I/2003) a variety of associations and NGOS/NGO which concern against the legislation in the interest of the public, legal entities, local governments, State agencies, and others, by the Court is considered to have legal standing to apply for testing, both the formyl or materially, the legislation against the Constitution (see also Lee Bridges, et al. In "Judicial Review in Perspective, 1995). (page 59). One applicant as an individual citizen of Indonesia are the taxpayers (tax payer). In addition, the applicant also I concern with advocating the eradication of corruption in Indonesia, consisting of: 1. The ferry Amsari, S.H., M.H. is a citizen of Indonesia who work as teachers in 7 faculties of law of the University of Andalas, a field study of the law of State administration. In addition to the profession as a science professor in law, the applicant also advocates the eradication of corruption, in particular the strengthening of the corruption eradication Commission in collaboration with Indonesia Corruption Watch about strengthening the KPK, writing articles in the mass media, and activities as a member of the Center for Constitutional Studies (EPISODE) which also concern with issues of constitutionalism and the eradication of corruption. (Proof of P-11); 2. Ardisal, S.H., is a citizen of Indonesia which have activity at the legal aid Institute (LBH) field, the everyday care of the public interest, including the eradication of corruption. In addition, the applicant also noted cooperation in some programs together with Indonesia Corruption Wacth, such as: monitoring the performance of law enforcement, advocates strengthening the KPK, and eradication of corruption in General; 3. Drs. Teten;, is a citizen of Indonesia who currently play in the Transparency International Indonesia (TII) as Secretary General. ITS RESOLUTION is that the focus in the prevention of corruption, and has a network at the international level for corruption eradication issues. In addition, the applicant also had been a founder of the Indonesia Corruption Watch and served as coordinator of the working body from 1998 until 2009. The applicant is very concern with the public interest and the eradication of corruption in Indonesia. The applicant has also ever get awards from Magsasay Award for his devotion towards the eradication of corruption and clean government. In advocating the strengthening of the corruption eradication Commission, the role of the applicant are very significant; Zainal Arifin Mochtar 4. Husein, S.H., l. LM, is a citizen of Indonesia who is now a lecturer at the Faculty of law, University of Gadjah Mada, the concentration of Legal Administration of the country. In addition to teachers, the applicant is Director of the Center for the study of Anti-corruption (TRAWL) the Law Faculty of the University. Most of the time the applicant used to defend the public interest and the eradication of corruption in Indonesia. This can be evidenced by the statements of the applicant related issues of corruption eradication, strengthening of the KPK and other legal science that supports the eradication of corruption;

8 based on the description above, it is evident that the applicant I concern with the public interest and the eradication of corruption, in order to achieve the goals of the nation and improve the general welfare especially things related to strengthening of the corruption eradication Commission and Act No. 30 of 2002 about the KPK law is the basis of the institution of the country. In addition, the applicant I is also a tax payer (tax payer) as evidenced by photocopies of Staple Number Taxpayers (NPWP) (proof of P-2). That the applicant I as a tax payer declares interest konstitusionalnya has been broken by the existing legal uncertainty in the interpretation of Article 34 of the ACT is related to the term of the KPK leader replacement KPK was elected. Thus the terms of legal standing as mentioned in the ruling of the Constitutional Court of the number 27/PUU-VIII/2009 are met. Whereas, the applicant is a legal entity the II-shaped Assembly of Indonesia, which was called a bevy of Indonesia Corruption Watch. In accordance with the articles of ICW, ICW's vision is: "the rise of people's bargaining position to control the country and participate in the decision to realize a democratic governance, free of corruption, economic, social, justice and gender", and the Mission of the ICW is empowering people in: 1. In pursuit of the realization of the political system, legal, economic and clean bureaucracy from corruption and based on social justice and gender; 2. Strengthening popular participation in the process of retrieval and monitoring public policies; The vision and the mission proved that indeed institutional in ICW was formed specifically to advocate the interests of the public and the eradication of corruption. Likewise, if seen from the activities of the ICW, that since the ICW was founded on 21 June 1998 until today is still one of the institutions of civil society that focus in the field of the eradication of corruption. The work includes the control of corruption eradication and strengthening of institutions, such as the KPK: reporting cases of corruption to the KPK, research cooperation with the KPK, advocating the strengthening of KPK when the criminalization and legal engineering against two KPK Chairman, and other activities related to the eradication of corruption. The applicant II assess the interpretation and implementation of the provisions as referred to in article 34 of the Act Number 30 years


9 2002 about KPK (proof of P-4) can weaken the institution of the KPK and the eradication of corruption. Thus the applicant II eligible referred to the ruling of the Constitutional Court of the number 27/PUU-VIII/2009, namely: as a body of law that concern public interest in defense and corruption eradication efforts, in particular the strengthening of the institution of the KPK. With the interpretation of the DPR-RI against Article 34 Act No. 30 of 2002 about corruption eradication Commission raises a constitutional disadvantage applicants II be terhambatnya advocacy work conducted by the applicant II, due to the lack of legal certainty about the term of chairmanship of replacement KPK was elected. Furthermore, the claimant I and II Applicants want to explain about the loss or potential loss of constitutional constitutional due to the enforcement and interpretation of Article 34 Act No. 30 of 2002 about the KPK. As citizens and legal entities which Indonesia love towards the motherland and care about the fate of a nation has a constitutional right to get the right recognition, guarantees, protection and legal certainty of fair and equal treatment before the law as set forth in section 28D subsection (1) of the Constitution. In view of the Applicant, the interpretation of the term of the replacement Chairman for one year will inhibit optimization and effectiveness of the eradication of criminal acts of corruption and the raises uncertainty the law against replacement KPK Chairman's term. This will result in:-Not optimal the work direction of replacement KPK in the eradication of criminal acts of corruption. This would deny the very essence of the formation of the KPK as contained in the preamble whereas the letter a and letter b of ACT CCA; -Raises legal uncertainty with regard to the term of the Chairman of the House of REPRESENTATIVES when doing Remote KPK reshuffle Chair KPK as set forth in article 32 paragraph (1) of the ACT CCA; Claimant I and II Applicants as long as it held that the KPK is a very reliable partner for the work of the eradication of criminal acts of corruption. The uncertainty of the law, cause ineffectiveness corruption eradication work conducted by the KPK, as well as weaken the functioning of prevention (preventative) and Penindakan (repressive) performed by the institutions 10. Terhambatnya KPK's work raises the consequences go directly towards corruption eradication advocacy carried out by the applicant the applicant I and II. The assessment of the effective term of the chairmanship is not a replacement for the remainder of the term of Office 2007-2011 period or about one year since selected advanced by Applicant I. (proof P. 10); Based on the above description, it is clear the applicant has legal position (legal standing) as the applicant testing Act No. 30 of 2002 about the KPK and the relationship of laws (causal verband) towards the implementation of Article 34 of LAW number 30 of 2002 about KPK dikaitakan with article 28D paragraph (1) of the CONSTITUTION of 1945; Obviously, the interpretation of this has been detrimental to the applicant's rights as a citizen to obtain legal certainty with regard to term of chairmanship of replacement KPK. The legal term of uncertainty hampers the work of advocating the eradication of criminal acts of corruption committed by the applicant the applicant I and II. C. reasons for the PETITION Preamble whereas a LAW number 30 of 2002 about the criminal acts of Corruption eradication Commission stated that in order to realize a just, prosperous society, and prosperous based on Pancasila and the Constitution of the Republic of Indonesia in 1945. This indicates that the community already systemic disease even widespread Corruption, i.e. impeding attainment of a just society, affluent and prosperous because of the Fund's financing for prosperity, and prosperity has vanished is robbed by the corruptor; Dishonorable actions as mentioned above must be eradicated by law enforcement agencies such as the police, Prosecutors and judges. This apparatus must uphold the law to the people's money no longer easily taken by the corruptor, whoever he was. If he were State officials, or simply "parakai" only; The eradication of criminal acts of corruption that occurred until now can not be implemented optimally. Therefore, the eradication of criminal acts of corruption needs to be improved in a professional manner, intensive, and continuous due to corruption has been detrimental to the finances of the State, the economy of the country, and hinder national development. That government agencies that handle the matter a criminal offence of corruption has yet to function effectively and efficiently in 11 combat criminal acts of corruption. for that, the criminal offence of corruption eradication Commission (KPK) were present to cover the weaknesses of the conventional law enforcement agencies; KPK as superbody and super expected due to the extent of those powers in the eradication of criminal acts of corruption and toughness against corruption do not desire to become leading guard the eradication of criminal acts of corruption. Because of its inherent words within this institution, it's only natural when people who became Chairman of KPK must be qualified in accordance with the standard expectations of society, which is honest, brave and a little "crazy"; On December 23, 2003, the leadership of the KPK was sworn, and the first volume on December 5, 2007, the DPR-RI chose five KPK Chairman Vol II. In his travels, head of KPK in the test with a variety of seasonal storms to weaken even paralyze kedigdayaan penitentiary. Many of the corruptor fight back carried out by parties who are not happy with the work of KPK. Starting from mengotak its doctored to sow nail pengembosan against people that are in the CCA, including its Presidents. Is Antasari Azhar, Chairman of KPK Period II of the affected nail institutional penggembosan KPK. Trapping penggembosan this led to a domino effect to the institutional KPK. Its individual commandments themselves entangled criminalization against him. Although then the fact stated that truth exists; In accordance with the ACT on KPK, head of KPK numbered 5 people and running time of jabatanya for four years. But the emerging issues. When Antasari Azhar was dismissed as one of the KPK Chairman by the President. The next question is, who instead and how long the period of his/her term associated with article 33 paragraph (1), subsection (2) and section 34 of the ACT CCA; To choose the leadership selection Committee Chair Marchesa MARCHESA has done the selection on 25 May to 27 August 2010 in order to find the selected name 2. Is Busyro Muqoddas and Bambang Widjojanto was selected as candidate for the leadership of the Chair. Before the second name was submitted to the DPR-RI, Pansel KPK Chair Leadership election. Pansel through one Todung Mulya Lubis, the members, States that the term of chairmanship of Replacement KPK is four years. Meanwhile, the HOUSE of REPRESENTATIVES Commission III stated that it was contrary to 12 behind, that the leadership of the Chair's term KPK is one year. Although there is one Faction in the HOUSE of REPRESENTATIVES Commission III i.e. PPP initially stated that the leadership of replacement KPK for four years, then the party's "lackluster" due to the pressure of the majority of votes and claimed leadership of the KPK's term for one year. DPR-RI resting interpretation of term of chairmanship of replacement KPK based on Article 21 subsection (5) in which the leadership of the KPK collegial working collectively. So that the provisions of article 34, the Chairman meant replacement KPK expire simultaneously. Therefore, a replacement for the leadership of the KPK was elected just continue the remainder of the term of Office, i.e. one year; Based on that, the Applicant submits an application to a judge of the Constitution to give clarity to the interpretation of the term of the replacement KPK leader linked to the application of Article 34 of the ACT KPK. Because, against misinterpretation of article 34 would be or at least potentially contrary to Article 28D paragraph (1) of the Constitution which says "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; The interpretation of the members of Parliament-RI against Article 34 of the ACT which caused the KPK leader replacement KPK (Busyro Muqoddas), only served for one year. The uncertainty has led to laws against replacement KPK Chairman term as elected; The term uncertainty has also impacted on the effectiveness of the work of the leadership of the KPK in the eradication of criminal acts of corruption. Even at a time of potentially debilitating corruption eradication agenda by KPK aimed at realizing a just society, affluent and prosperous based on Pancasila and the 1945 CONSTITUTION; When the State-through the Justice of the Constitution at the Constitutional Court-absent in giving assurance of the interpretation of a term/or potentially detrimental to the constitutional rights of citizens and a body of Law that has been willing to voluntarily pay any tax to the country through the Organization of the STATE BUDGET. Where the financing of leadership selection process comes from the STATE BUDGET and that is very much the number violating the principle of expediency in the Organization of the State and the use of State finance;


13 Penafisran against the leadership of the Chair's term for one year KPK conducted by DPR-RI and strengthened by Presidential Decree No. 129/Number P in 2010 about Rapture Busyro Muqoddas as leader of the Replacements and also as Chairman of the KPK was selected based upon textual norms Act CCA under normal circumstances. While the legislation does not mention in the normative term of chairmanship of replacement KPK when abnormal conditions; The term of the provisions referred to in Article 34 of the ACT is meant to be not only the KPK against the leadership of the KPK but also to the leadership of Replacement KPK. It complies with the method of systematic interpretation, logical, teleologis, and have as outlined below: 1. The interpretation of Article 34 by DPR-RI and the Government is not based on a proper interpretation of the law. C. 1.1. Interpretation of Article 34 Interpretation based on systematic/dogmatic (systematische interpretatie) term of leadership of the KPK as set forth in article 34 of the ACT, it is not associated with the KPK clause work collectively as the provisions of article 21 and paragraph (5) of the ACT the KPK is often excuse the justification of the interpretation of the House. An explanation of the provisions of article 21 and paragraph (5) of the ACT clarifies that the KPK is meant by the phrase "working collectively" is that any decision must be approved and it was decided jointly by the corruption eradication Commission. So working collectively is the mechanism of decision-making by the leadership of the KPK. Imprecise if meant that the phrase "working collectively" equal to or meaningless term of leadership of the KPK also collectively. Not a single article in the KPK LAW justify the interpretation over the post of the leadership of replacement KPK only as the remainder of the term of the KPK Leader replaced, thus opening up the possibility that the KPK LAW once will a vacancy position due to reasons that are unpredictable and beyond the substantial term as intended by article 32 paragraph (1), number 2 of the ACT and therefore CCA legislation also regulates the reshuffle replacement KPK in the event of a vacancy the position where everything associated with the election process 14 equated the leadership of the KPK so that Section 34 is also to be seen are the same for the term of the Chairman for a replacement. In the ACT does not differentiate at all CCA term of leadership of the KPK were selected in advance by the KPK Chairman's term was replaced, i.e. equally has a term of four years. The things which can be seen in article 34 of the ACT pronounces the KPK, "the leadership of the corruption eradication Commission hold office for four (4) years and can be". It also affirmed the interpretation of the selection Committee Chairman for the KPK in essence interpret systematically over the Article 34 of the ACT on the Office of the KPK Chairman KPK for 4 years. Interpretation of systematically against: a. Article 21 and article 34 of the ACT means the KPK Chairman KPK consists of 5 members who have a term of 4 years or each direction of KPK had a 4 year term; b. Article 34 of ACT KPK which means the candidate proposed by the KPK Leader President to PARLIAMENT-RI hold office for 4 years. C. 1.2. Interpretation of Article 34 based on Logical Interpretation (Logische Interpretatie) term of leadership of the KPK were not collectively and should not be appointed and stop simultaneously. In this case Article 9 paragraph (5) of the ACT the KPK is often excuse the justification of the interpretation of the leadership of the KPK served collectively is definitely the definition of misrepresentation, where Article 21 paragraph (5) of the ACT reads, EXTREMLY "corruption eradication Commission Chairman referred to in subsection (2) to work collectively." Clearly and unequivocally in the explanation as a unity that can not be separated from the legislation itself explains that what is meant by the phrase "working collectively" is that any decision must be approved and it was decided jointly by the corruption eradication Commission. So working collectively is the mechanism of decision-making by the leadership of the KPK. Imprecise if meant that the phrase "working collectively" equal to or meaningless term of leadership of the KPK also collectively. Under normal conditions, the selection of the leadership of the KPK must be carried out under article 29, article 30, article 31, article 33, Article 34 of the ACT and the KPK. But when the leadership of the KPK to resign or be dismissed, then the election is carried out as provided for in article 33 paragraph (2) of the ACT KPK. With regard to the term of the replacement KPK Chairman, should be linked to article 29, Article 15, article 30 and article 31, 34. Thus, the definition of the term of leadership of the KPK in the KPK LAW is four years. All of the article is clearly about the requirements set Chairman, election, void of leadership, and a term of leadership of the KPK for four years. Thus, there is no single norm article, explanation of even room the interpretation about the term of chairmanship of replacement KPK proceed period are replaced; C. 1.3. Interpretation of Article 34 Interpretation based on Teleologis (Teleologische Interpretatie) according to Prof. Dr. Jimly Asshiddiqie, the interpretation of teleologis is focused on unravelling or the formulation of legal norms according to purpose and scope (vide Jimly Asshiddiqie, 2006. Introduction to legal science State administration Vol 1. Jakarta: the Constitutional Court of the Republic of Indonesia. 278.) Were with the opinion, j. a. Pontier said that use of tafsir teleologis emphasized on the fact that legal norms have a purpose or principle of informing and that such purpose or principle of determining for interpretation. In other words, the rule of law holds certain functions or intended to protect certain interests so that on the application of the rule that must also be met. The interpretation of the law by using teleologis interpretation is done within the framework of the purposes and functions of the rule formulated in it taking into account the context of the reality of society (vide j. a. Pontier, 2008. Discovery Law. Translated by Prof. Dr. b. Arief Sidharta, Bandung: the Windows of sh. Mas Pustaka_Anggota IKAPI, thing. 45). Basing the definition above, the provisions of article 33 paragraph (1) which reads, "in the event of a vacancy the leadership of the corruption eradication Commission, the President of the Republic of Indonesia filed a candidate Member of the successor to the DPR-RI" juncto Article 34 which States, "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office" is meant should be in accordance with the objectives and functions (range of) him in answering the needs of the community over the eradication of criminal acts of corruption. Therefore, the basically replacement KPK Chairman in the event of a vacancy the leadership [article 33 paragraph (1)] aimed at the optimization and effectiveness of eradication is not criminal corruption. Replacement of the leadership expected 16 can strengthen institutional KPK as agencies that have the authority in the eradication of criminal acts of corruption. Related to the term of leadership of the KPK's replacement, the provisions of article 34 is not explicitly the underlying disease. Nevertheless, the term of leadership of the KPK's replacement should be based on the purpose of the replacement itself, namely the optimization and the effectiveness of the eradication of criminal acts of corruption as well as strengthen institutional KPK. This is important given the KPK Middle tested with various corruption eradication emasculation. Corruptor fight back by certain groups reflects the motion of the Middle step of the KPK. Based on these arguments, then the provisions of term of leadership of the KPK as set forth in article 34 also apply to leadership of the KPK's replacement. Limitation of time for replacement KPK Leader all the time the rest of the KPK replaces will only cause ineffectiveness corruption eradication because the leadership of the surrogate did not have enough time to realize its vision and mission in the eradication of corruption. Fulfillment is so important to do given the institutional leadership of the KPK that require high integrity and track record is good then the KPK Chairman's term of four years. If following the narrow interpretation of IE only one year at a time, then the presence of the leadership of the KPK will only be able to meet the formalities of charging terms. Whereas the meaning of replacement KPK Leader was more devoted to the effectiveness of the eradication of corruption and strengthen institutional KPK so it can encourage corruption eradication and law enforcement itself. C. 1.4. Interpretation of Article 34 based on interpretation of Tafseer Have members of Parliament-RI of Replacement KPK Chairman's term for one year is contrary to the interpretation of the common analogy is used. Tafsir analogy resting on article 21 paragraph (5) of the ACT KPK and grounding of thought likens Replacement KPK Chairman's term with the term acquired a replacement for a member of Parliament in the intertemporal substitution mechanism (PAW) is a mistaken interpretation. It is because the process of changing of the House members through PAW shows the occurrence of a different selection process among House members who enter the legislature based on the mechanism of PAW with a member of Parliament who was replaced through the process


17 direct elections on the basis of Act No. 27 of 2009 about the MD3 (proof of P-5). Moreover, the institution of the HOUSE of REPRESENTATIVES should be seen as a political institution so that the turn of House members through the mechanism of PAW served to continue the political goals of the party member of Parliament who was replaced. So turn the term of members of the House that went through another mechanism PAW just continue the remainder of the term of Office of the members of Parliament that it replaces. The interpretation of the term of chairmanship of Replacement KPK by using analogy should be compared with the provisions and regulations of proper and appropriate. The leadership of the KPK is not an institution that runs the purpose and function of institutional politics, but rather a function of very heavy, noble and should be done in a genuine law enforcement initiatives applied for and eradication of corruption. That right there is a State institution when the vacancy occurs, then the replacement should be done against the Office with the rest of the term continued being replaced, but it it is valid if it has been stated expressly in the provisions governing institutions related for example turnover according to Act No. 15 of 2006 about CPC (proof of P-6), which in its section 22 governs the : (1) when a member of the CPC dismissed, held the turn of intertemporal, and subsection (4) States "a member of the CPC continue the remainder of the term of the successor succeeds". While in the ACT of KPK as State institutions as well as the CPC no legal basis which expressly states that the term of chairmanship of Replacement KPK using intertemporal substitution mechanisms and/or live is firmly stated the leadership of replacement proceed the rest of Office are replaced, so that the interpretation of the DPR-RI's response to the Article 34 of the ACT where the leadership of the KPK's replacement just live the remainder of the term of the Chairman is replaced is the wrong interpretation of and can not be justified; When will do penganalogian then it should HOUSE-RI and the Government to trace the process and similar rules that apply and/or never performed in similar institutions or institutions carry out part of the same function. In this case the KPK as law enforcement agencies that implement part of the functions of the judiciary may be analogous to the process of the replacement of the term in the event of a vacancy in the post of 18 law enforcement agencies who also carry out the functions of the judiciary in this case the Constitutional Court; The formulation of the phrase of article 33 paragraph (1) of the ACT, "KPK in the event of a vacancy the leadership of the KPK, the President submits candidates to chair the DPR-RI" is identical with article 26 paragraph (1) of Act No. 24 of 2003 about the Constitutional Court which reads "in the event of a vacancy the judge the Constitution due to quit or be dismissed, the agency authorized to propose a replacement in the President." The phrase proposed the replacement, between the ACT number 30 in 2002, about the same as the KPK Law Number 24 year 2003 about MK (proof of P-7). The application of this article ever conducted by the Constitutional Court through the turn as judge Jimmly Assidiqie Constitution that stopped because resigned and was replaced by judge Constitution Harjono. At that time, although the Justices the Constitution replaced the Constitution of Judge Jimmly Harjono Assidiqie, a fixed tenure for 5 years as provided for in article 22 of Act No. 24 of 2003 about MK. The same application must also be made to the term of Replacement KPK Chairman during four years as provided for in article 34 of the ACT KPK. C. 2. Interpretation of Article 34 of violating the principle of expediency Substitution term of chairmanship of Replacement KPK is meant should be four (4) years. This relates to the application of the principle of expediency in the berhukum. If the leadership of Replacement KPK only served as the remainder of the term of Chairman replaces, it will be difficult to say the provisions of LAW enforcement will benefit the KPK law and the eradication of corruption, let alone the rest of his term in just a matter of months. Run the transition to democracy and the rule of law for the sake of justice it is very expensive and cannot be valued with money. However in the process of running the State and the Government must obey with the berhukum principles, such as the basic benefits. If this principle be broken in the process state and berpemerintah, then the breaching basic 56th State i.e. the CONSTITUTION of 1945. Replacement KPK Chairman selection process which lasts a long time and have been spending the financial budget of very large countries turned out to simply pick a replacement KPK Chairman for a period of rest of not quite sufficient to show the role of the leadership of Replacement KPK law enforcement efforts in the 19th and the eradication of corruption and very redundant that tends to squander the STATE BUDGET comes from the STATE BUDGET. That in the end the interpretation of the DPR-RI and the Government's response to the Article 34 of the ACT will have an impact to the KPK is not optimal for the eradication of criminal acts of corruption, so that the goal of realizing a just and prosperous society as the very essence of the establishment of destination countries and advance the KPK general well-being will be increasingly difficult to materialize is the constitutional right of every person (Claimant I and II) to obtain legal certainty with regard to term of chairmanship of Replacement KPK for community building , the nation, and the State. This right is a part which cannot be separated from the State on the purpose and/or Goals of the law of Nations in order to promote the general welfare. Due to the interpretation of HOUSE of REPRESENTATIVES and the Government's response to the Article 34 of ACT KPK negatively impact the implementation of the responsibilities of the chairmanship of the replacement and also institutional KPK in the eradication of corruption that became one of the factors the causes of poverty and the difficulty of achieving the objectives of the State in promoting the general welfare is unconstitutional primarily against Article 28D paragraph (1) UUD1945. Thus, it refers to the nature and essential to the formation of an institution called the corruption eradication Commission (KPK) for the realization of a just and prosperous society, improve professionalism, corruption eradication and effectiveness of optomalisasi, then the interpretation is right and constitutional LAW Section 34 against KPK is the interpretation which stated that "the term of the President and the leadership of replacement KPK is 4 years". Or if they contained other tafsir must specify explicitly how long term leadership of Replacement KPK. Thus to limit the weakness of the formulation of article 34 of the ACT the CCA does not mention the term leadership Chair KPK and implement Article 34 of the ACT constitutionally KPK in the frame of the democratic constitutional state of law. C. 3. Interpretation of Article 34 of violating the principle of certainty of Law interpretation of Replacement KPK Chairman's term by PARLIAMENT and the Government's response to the provisions of article 34 of the ACT has led to legal uncertainty of the KPK. The uncertainty of the law against Replacement KPK Chairman tenure occurred when the existence of one of the KPK leader quits or is laid off 20 as contained in Article 32 paragraph (1) Figure 1, Figure 4, Figure 5, and Figure 6. Where the more we read: "stop the corruption eradication Commission Chairman or dismissed because of: 1. death; 4. unable to fixed or continuously for more than 3 (three) months cannot carry out his duties; 5. resign; or 6. subject to sanctions under this Act ". So that the Constitutional Court should give a proper interpretation of the provisions of article 34 of the ACT against the KPK. So that in the future no more diverse interpretation among the parties concerned towards the conditions that lead to the absence of legal certainty. PETITUM based on reasons that have been outlined above and the evidence attached, then the Applicant pleaded to the Tribunal of judges of the Constitutional Court to check and test material is disconnected as follows: in the subject matter of case: 1. Accept and grant the entire application Testing proposed laws of the Applicant; 2. Declare that the meaning of article 34 of LAW number 30 of 2002 about the KPK conducted by HOUSE of REPRESENTATIVES and/or the Government regarding the remainder of the term of leadership of the replacement KPK is conditional constitutional (constitutional conditionally) all the following is meant: "the Chairman and/or the substitute corruption eradication Commission Chairman holds office for four (4) years and can be re-elected only once for a term of Office."; 3. Ordered the HOUSE of REPRESENTATIVES and/or the Government to carry out the interpretation of Article 34 of LAW number 30 of 2002 about the KPK as petitum number 2; 4. When the Tribunal Judges on the Constitutional Court to have the decision of the other, please seadil-fair award ex aequo et bono; [2.2] considering that to prove the evidence if possible, the Claimant has submitted evidence that writing letters/marked evidence of P-1 to P-11 Evidence, as follows:


21 No. Proof of Name Proof 1. P. 1 photocopy of the applicant's identity; 2. P. 2 NPWP petitioners; 3. P. 3 photocopies of articles of Association and Bylaws ICW; 4. P. 4 Photocopying Act No. 30 of 2002 of the Commission for the eradication of criminal acts of Corruption; 5. P. 5 Photocopying Act No. 27 of 2009 about the MD3; 6. P. 6 photocopy of Act No. 15 of 2006 about Agency Financial Examiner; 7. P. 7 photocopy of Act No. 24 of 2003 on the Constitutional Court; 8. P. 8 photocopy of Presidential Decree Number 129/P in 2010 on the appointment of Dr. Mohammad Busyro Muqoddas; 9. P. 9 Photocopying top HOUSE of REPRESENTATIVES approval of the election Busyro Muqoddas became Chairman of Replacement KPK and Chairman of KPK was elected; 10. P. 10 media Clippings related to the term Busjro which is only a year are ineffective; 11. P. 11 Writing activist Applicant I in the eradication of corruption; In addition, the applicant has also filed three experts who have heard his statement under oath in the trial date of 23 May 2011 and 31 August 2011, which explains as follows: 1. Expert Saldi Isra ß That Article 34, being the only article which talk about a term or duration of a direction of the corruption eradication Commission and in article 34 referred to, "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected for only one term"; ß that if referred to the explanation of article 34, mentioned that Article a quo quite clear, it means there is no longer another explanation that could be referenced to explain this; ß That suit the skills of expert dalami, expert-led, anyone seeing the corruption eradication Commission, then his term is 4 22 years, whether he was from the very beginning or later occurs the process of succession in the middle of the road; ß That case in corruption eradication Commission for example, happens to reshuffle the corruption eradication Commission Antasari Azhar was abandoned by the seminarians ', and then do the turn with the election of Dr. M. Busyro Muqoddas; ß that indeed there is debate, though according to the experts, the House and the Government has already issued a decision, said Busjro Muqoddas's term will end in December 2012, however this article according to experts to be explained from the perspective of the law of State administration; ß That opinionated people who experts continue or replacing the leadership of the corruption eradication Commission which stopped in the middle of the road, in the understanding of the expert, should have the same four-year tenure with the leaders of the other, in the sense of, if it was made after a normal period it is running 2 or 3 years, then must then be calculated starting from 4 years of his appointment when replacing the position; ß that for the replacement processes, actually can refer to what is done in the process of changing of the Constitutional Judges, for example, recently the constitutional Judge Arsyad Sanusi, cannot continue his tenure, later replaced by a new judge, and judge the new not proceed period work left by Arsyad Sanusi, but new Justices have a term of five years; ß That experts compare to continue existing in the term member of Parliament. Members of the HOUSE of REPRESENTATIVES, intertemporal substitution, if there is a clear concept is intertemporal substitution. So, spend the remainder of the term left by the previous replacement, so a person who succeeds to members of Parliament, members of PARLIAMENT or members of DPD is one who can voice the next. Supposedly, according to experts, when the concept was accepted to replace Chairman or Commissioner of the KPK, the new selection is not done properly, and should that be a leader is one who can voice the number no. 6 in the House; ß that according to experts, the way the turn between the HOUSE of REPRESENTATIVES with the KPK is different, because the change is no longer the guy who got the next voices when implemented fit and proper test in the House;

23 ß that according to experts, when the concrete legal events is mounted into the Legal theory of State administration, according to experts, the KPK is independent State agencies because first mentioned ekplisit in the law on the corruption eradication Commission, both the independent KPK, as it does not become part of the structure of executive agencies, when CCA became a part of the structure of executive agencies, then the KPK will be referred to as executive agencies instead of independent agencies. KPK is independent agencies in understanding expert, because he is the institution of the independent State, then later in many theories attempt to mention how charging independent State institutions. The most commonly used is the there is a pattern called the turn or cascading stages terms, and to the corruption eradication Commission, appointed simultaneously. The first period was made simultaneously, and stopped synchronously because there is no substitution occurs in the middle of the road, but the second period the Commissioner, there is a stop in the middle of the road. Expert in understanding that it is the initial step, apply cascading turnover problem; ß That charging independent institutions in many countries laboured not simultaneously each passing and not simultaneously to be filled again for the sake of continuity; ß that there are some disadvantages when carried out simultaneously because his term is four years, so that one can determine the charging process the regime's institutions including the independent KPK; ß that if there is room to begin a stage of his term, according to experts, the Constitutional Court in place strengthen the pattern such as so pergantiannya not continue the remainder of the existing term but it is a start from scratch so that later when three of the four stops or Commissioner of the people stop, there are still remnants of the old for continuity. The thing is, the first character of independent State agencies, the second character is a legal theory in the State administration, which was put forth by Asimov, that person or the leadership of the institutions of the independent State should be dismissed with reasons are obvious. Second, the outside powers, including the powers of the Executive, should not be free to decide how to process the dismissal of Commissioner-Commissioner of the State's institutions, independent 24 third is the process of filling or replacement komisoner should be done with tiered pattern, not in the framework of a single-stage; ß That is not explicitly referred to in Act No. 30 of 2002, so that the Constitutional Court, has a strong legal position to explain the question of turnover or turnover in the middle of the road Commissioner in the Commission for the eradication of criminal acts of Corruption; ß that if the pattern is followed, according to the experts, then continuity can be a serious issue, which then, efficiency in pengisiannya will also be a big entry, for example, to replace the Former to Busyro Muqoddas, Pansel worked as befits Pansel works in the initial charging, while the term was given a short period of time, according to experts, it is the country's financial pemubaziran; ß That State agencies independent, concurrent did not have to be pengisiannya although initially all at once, for example, the pattern of substitution in the American Senate, at first definitely unison but then there is set up to process the next turn is not the same with the aim at establishing continuity, so that according to experts, the theory that is used in many countries can be the pattern for the commissions independent country because when everything changed simultaneously , the harm is a particular regime could be dominant for determining process pengisiannya; ß That when setting the system's attempt to talk especially independent institutions, according to experts, it's time to start the charging process stages especially for State institutions were given the status of independent which does not become part of the executive agencies, including outside the KPK; ß That when it all changed recently, then the new person will work from zero to an independent institutions but if the previous still persist while new entry, will be easier to make adjustments, though experts don't put the Constitutional Court as the State Commission, but according to what is happening in the Constitutional Court worth imitated or serve as a system for institutions


25 independent agencies, because what happens in COURT, the process of succession in MK walk naturally; ß that according to experts, there is no handle that can be used to interpret, one of them using a systematic interpretation of, though in different areas; ß that one comparison that experts have to offer is a theory that says, "If the institutions are given the status of an independent institution that is pengisiannya or pergantiannya process is not done simultaneously."; ß realized that indeed laws in a KPK made very deliberately, with the demands of complete corruption cases in the middle of the limitations of the work of law enforcement agencies such as the police and prosecutors of the conventional, but when looking at the text, it is clear that the leadership of the KPK Office is four years, meaning that the direction of whoever and whenever appointed, have a term of four years; ß Busyro Muqoddas, related That when associated with a presidential decree, it appeared no other because the interpretation of the Government's response to the article, according to most authorities interpret is the Constitutional Court, so that should not be interpreted by parties outside the holder of the power of Justice; ß That a presidential decree on the appointment of Busyro Muqoddas was the interpretation of the Government which, according to experts, reducing the meaning of article 34 which says that the leadership of the KPK Office is 4 years old, so Busjro Muqoddas as leader of the KPK, would only have a term of less than one year and it is clearly contrary to the provisions of article 34 Act No. 30 of 2002. 2. Expert D Riyana Hardja ß Pamengkasan That deals with leadership members of the KPK Leader was elected to replace a member of the leadership who was dismissed, because according to law should be dismissed, would continue the remainder of the term of the replaced or fully served for 4 years. According to experts, a replacement must be served in full for 4 years based on the principle of merit, namely first, sustainability leadership more assured on the basis of a collective and collegial as mandated by law Number 30 years 26 2002, second, head of KPK 2007-2011 consists of all new members, although there are from internal sources, but not from the elements of the leadership, so that the principle of continuity of leadership is not reached and what happens is the dominance of the leadership of Antasari Azhar who during one of the first year was so intense it appears in the media , which should not be like that; ß that it became one of the reasons why sustainability leadership collectively not reached due to the internal source of became Chairman instead of the old leadership, but leadership of the element underneath, even the Echelon 2; ß that there might be some kind of a culture shock to become Chairman, and then not being able to balance the leadership kolektivitas leadership in togetherness, so the dominance held by one leader that did actually become Chairman, but it's not supposed to be like that; ß other reasons That are in line with the common reason put forward was the reason the costs, because the resources mobilized by the selection Committee to produce a candidate Member of the leadership of the KPK is huge, not from the side of cost Rp1,6 Billion, but the energy deployed. Focus and the deployment of resources for checking, well done by NGOS as well as by other institutions, difficult votes with money. So according to the experts, it would be used as an excuse to strengthen the leadership that anyone elected seyogianya not in the remainder of the term of Office, but during a four-year term; ß That leadership of the KPK is expected by law to have very tight control, so the dominance of one person is not possible. Therefore, for issues that are very important and very strategic, must be made and agreed by all five members of the leadership. If there is no majority, at least three leadership must be present and agreed to decide or do actions that are very strategic. Therefore, according to the experts is more on the pattern of work, not work; ß That leadership of the KPK 2007-2011 is not effective because of the dominance of a single person, in addition there are other non-technical matters, but in theory the leadership or management theory, when one dominant master a bunch of kolektivitas togetherness and then be interrupted this domination and 27 can be dangerous because the Trustee Act in order that collectivism became a tool of control, it becomes weakened; 3. Expert Todung Mulya Lubis ß that term of leadership of the KPK has become quite a long contentious issue and in this context Act No. 30 of 2002 regarding the KPK, could well give rise to interpretations that are not equal to each other, because it was not anticipated when the process of making the Act is done and we were surprised when there is a lacuna or a post-war vacuum Antashari KPK Leader Azhar empty for some time and was replaced by Brother Busyro Muqoddas , that when replacing the position as leader of the KPK, his stay another year if just looking at the interpretation seems to be acknowledged or applied during this time; ß That term is considered as a single package along the direction of the other, so inevitably the newly appointed leadership of the KPK in 2010, will end his tenure at the end of the year 2011 together with the leadership of the KPK to another, according to the leadership of the newly selected CCA which is not together in one package, will remain in Office for four years, ever since he was chosen as leader of the KPK; ß that according to experts, there are a few reasons namely experts don't see any provision that the entire leadership of the KPK should be selected at the same time and ends at the same time anyway, so there is no provision of the entire leadership of the KPK must serve for one wave of the same service. ß that because the leadership of the KPK is composed of five members of the KPK Chairman or Commissioner of the KPK and in associated with article 34, head of KPK holds a four-year term and can be re-elected for only one term; ß That leadership of the KPK is composed of five members of the KPK holds a four-year term from each of the five leadership of KPK. ß That Regent Office for four years, and not in a package along with the other leader who at the time was previously selected;

28 ß that it perhaps once was not anticipated because we thought maybe the leadership of KPK will survive forever, and in the event of a vacancy the leadership of the KPK, somewhat gelagapan, and although the legislation provides a way to fill the empty the KPK Leader because in article 33 says that in the event of a vacancy, the President of the KPK Chairman Indonesia ask prospective members of the successor to the House of representatives of the Republic of Indonesia and in associated with article 34 , Head of KPK is proposed and will be served four years; ß That experts do not see in the KPK law recognize so-called intertemporal substitution, it is not recognized in law expert interpretation, so that the KPK remains concluded that although selected in the middle term, not in one package, its interpretation is still run one full term, which means that running the term of Office for four years; ß indecision that the existence of legislation a quo raises problematic, but experts see that there is a challenge to make one interpretation, if indeed the traditional interpretation are treated as long as it is valid or invalid; ß That in terms of continuity, the continuity of the work of the institution, it would be better if the leadership of a strategic and important institutions such as the KPK is not new. This would create a continuity of employment agencies from time to time, so in terms of sustainability, the choice will be very beneficial and in terms of the effectiveness of the work of the individual leadership of the KPK, the newly appointed at the end of 2010, this option would also be much better, for when you must opt-in to expire in 2011, it is so effective is not caused by the brevity of the term, so there will be many benefits to the public , in particular for the eradication of corruption, for law enforcement jobs, even the overall selection process until his appointment was almost equal to half of the remaining term of Office; ß That in terms of cost and in terms of time, is definitely a waste, an expenditure that could not dijustifikasi, and in terms of the independence of the KPK, the choice will also be more beneficial to the future, because by looking at the experience in some other country, election


29 which is a staggered not at once one package, already used as references are everywhere, in order to safeguard the effectiveness, continuity, and the independence of the leadership, and the interpretation of experts want to wake up as a way out to ensure there is no Leader and CCA are appointed by the same one or a Council President who strengthens institutions KPK forward; ß That staggered system also began to embraced by many parties, including by non-governmental organizations, so that it becomes a trend, one interpretation is done to ensure continuity and legal certainty guaranteed by article 28D paragraph (1) of the CONSTITUTION of 1945; ß That leadership of the KPK, has the right to obtain a guarantee of legal certainty and equal opportunity, though the interpretation may not have been fully accepted in Community law, but experts see in the perspective of the State administration in Indonesia is one of the challenges and also can refer to the experience in other countries; ß That experts do not see any contradiction LAW KPK itself nor the Constitution, especially Section 28D subsection (1), therefore, to interpret it is returned to the Constitutional Court as the sole interpreter of the Constitution of 1945, Yes, as the guardian of the constitution and according to the experts if only viewed in terms of the benefits in the context of the effectiveness, continuity, and independence, there is logic and basic constitutional law to interpret it; ß That experts on understanding the meaning of the members concerned, whether the surrogate was unable to remain or are already a convicted person in this case is to replace the void of leadership of the KPK replaces the one void in relation to Article 34 that the Commission Chairman, is Chairman of KPK Deputy Chairman or KPK, hold office for four years and against a replacement should also be granted the same rights, in Office for four years; ß is not that it is in the context of intertemporal substitution as happened in the House, continued the remainder of the term of Office; ß that if only see Article 33, would be fooled with the interpretation that the prospective Member's replacement is the successor who continued the rest of the term, but in the context of the interpretation of a more holistic and systematic, 30 according to the experts, regardless of who was appointed to fill a vacancy, shall have the same rights to proceed, to undergo a single term, as written in article 34 that is for four years; ß That it is groundbreaking interpretation that is the authority of the Constitutional Court and therefore experts hand over everything to the wisdom and the wisdom of the Assembly of the Judges of the Constitutional Court; ß substitute nominee that the phrase can give rise to one interpretation which does not entirely fit in some ways and experts try to use or take a holistic approach to combine all of the approaches put forward, namely the systematic interpretation, or benefits, as well as legal certainty to see in one context is more intact that reimbursement for one term of which happens to be a vacuum, associated with article 34 about the term and associated also with the benefit , may provide justification for reimbursement that is not proceeding with the remainder of the term left, but also carry out a full term; ß That Section 28D subsection (1) is given as to the constitutional rights of every citizen, and experts using a staggered approach to the replacement happened on various commissions or institutions; ß that maybe used to be never unimaginable when a leader of the Commission such as the Judicial Commission or KPK assumed, interpreted, chosen collectively would be collectively and when suddenly the new leadership that have nothing to do at all with the leaders who have been replaced by different his philosophy, his approach is different, different paradigm; ß the staggered approach That does not replace all at once, giving continuity to the corruption eradication continuity into the main agenda of the Government and KPK; ß that it, being a legal open policy, because it can not imagine the fate of institutions such as the KPK when suddenly five members chosen paradigm not the same at all, so the justification for choosing the staggered approach is to try connecting the red thread corruption eradication from one period to another period. somewhat ill-fitting;

31 ß That compare the President with a term of leadership of the KPK, is two things that are not apple to apple to want to compare; ß the functional term That is not a term that is based on a basic representation itself, so on that basis justified and run full term not in a context like how when the President died or was unable to stay and he was replaced by Vice President and should continue the remainder of his term, even though the rationale or logic of continuity of the term can also be found on the DPD or Congress in America , which also was never selected at once on a single election because there are known by election; the constitutional issue that the ß with associate with article 28D paragraph (1) of the Constitution because of its functional position should be distinguished with the title of representation, which has the right to guarantee legal certainty and justice; [2.3] considering that the petition against the applicant, the Government has provided a description of the Council dated 28 April 2011 and gave a written description of the clerk of the Court accepted on May 18, 2012, as follows: the SUBJECT MATTER of the PETITION of the APPLICANT 1. According to the applicant, that the House of representatives (DPR-RI) resting the interpretation of a term of leadership of the replacement for the corruption eradication Commission (KPK) according to Article 21 subsection (5) of the ACT, where the leadership of the KPK KPK collegial working collectively. So that the provisions of article 34 of the ACT meant that the KPK Leader Replacement KPK ended simultaneously. To that end, the elected leadership of the KPK's replacement just continue the remainder of the term of Office, i.e. the remainder of the term of Office 2007-2011 or a little over a year; 2. That, according to The Applicant, there is misinterpretation over the provisions of article 34 of the ACT the KPK. So, it may cause the loss of rights and/or constitutional authority the Applicant or at least potentially contrary to the provisions of article 28D paragraph (1) of the Constitution states, "every person has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law";

32 3. That according to the Applicant, due to a mistaken interpretation by the DPR-RI against the provisions of article 34 of the ACT KPK has led replacement KPK leader was elected, namely Dr. Busyro Muqoddas, SH, MH only served for one year. Such uncertainty has led to the emergence of the law against Replacement KPK Chairman term as elected; 4. That according to the Applicant, the term uncertainty has also impacted on the effectiveness of the work of the leadership of the KPK in the eradication of criminal acts of corruption, even at the same time potentially debilitating corruption eradication by KPK agenda that aims to bring about a just, prosperous society, and prosperous based on Pancasila and the 1945 CONSTITUTION; 5. According to the applicant, so that the provision of Replacement KPK Chairman's term as stipulated in article 34 of the ACT should be EXTREMLY meant not only against the leadership of the KPK but also to the leadership of Replacement KPK. It complies with the method of systematic interpretation, logical, teleologis, and have or at least the interpretation of the provisions of article 34 of the ACT against the KPK had violated the principle of expediency or the principle of legal certainty; Against the above mentioned reasons, the Applicant pleaded petitumnya in May the Constitutional Court stated that the provisions of article 34 of the ACT is the conditional constitutional KPK (conditionally constitutional) all the following is meant: "the Chairman and/or the substitute corruption eradication Commission Chairman holds office for four (4) years and can be re-elected only once for a term of Office". ABOUT the POSITION of the LAW (LEGAL STANDING) the APPLICANT'S legal position with regard to (legal standing) the Applicants and having regard to the explanation of the legal position of the description of the Applicant in the application for testing the laws that will be decided in conjunction with the subject matter of the petition of the Applicant, the legal position is related to the Applicant, the Government handed over entirely to the Assembly of the Judges of the Constitutional Court to consider and judge whether the applicant has the legal position (legal standing) or not upon the enactment of the provisions of article 34 of the ACT the KPK , as specified in article 51


33 subsection (1) of the ACT the COURT and based on the rulings of the Constitutional Court earlier; (vide verdict Number 006/PUU-III/2005 and decision number 11/PUU-V/2007); The provisions of article 34 of the ACT against the KPK, which States: "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office". The above provision by the Applicant are considered potentially contrary to the provisions of article 28D paragraph (1) of the CONSTITUTION of 1945, which States: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". Or at least stated that the provisions of article 34 of the ACT is the conditional constitutional KPK (conditionally constitutional) all the following is meant: "the Chairman and/or the substitute corruption eradication Commission Chairman holds office for four (4) years and can be re-elected only once for a term of Office". Against the above problems, the Government can deliver things as follows: 1. Is it true that the provisions of article 34 of the ACT is deemed contrary to the provisions of the CCA Section 28D subsection (1) of the Constitution?; The presumption against the Applicant, the Government argued that the presumption that applicants are not right and wrong, because as usual test material charge in verse, chapter, and/or parts of legislation against the Constitution then The applicant is obliged to elaborate clearly in their petition about the existence of the right and/or authority konstitusionalnya that harmed [vide Article 51 paragraph (2) and paragraph (3) the letter b of the ACT the COURT]; 2. Description of the entire plea the Applicant, did not explain expressly that the material charge provisions that appealed to those tested have negated the recognition, guarantees, protection and legal certainty and equal treatment before the law referred to in the provisions of article 28D paragraph (1) of the CONSTITUTION of 1945. The Government argued that the Applicant was not in a position/circumstances, because basically the 34 applicants, if desired, can be a surrogate candidate selection Chairman of KPK at the time. Also according to the Government, if any presumption that applicants actually is, according to the Government which should apply the test of the Statute a quo is the parties who have elected to become a replacement for the leadership of the corruption eradication Commission. Based on the description above, the Government argued that the presumption of the Applicant stating that with the enactment of the provisions of article 34 of the ACT has led to the loss of rights KPK and/or constitutional authority the Applicant and therefore also considered contrary to the provisions of article 28D paragraph (1) the Constitution is imprecise and vague (obscuur libel). Thus, according to the Government, with the publication of a Presidential Decree Number 129/P in 2010, which sets Dr. Mohammad Busyro Muqoddas, SH, m. Hum as the Chairman and members of the corruption eradication Commission in the remainder of the term of Office 2007-2011, has been realizing the existence of legal certainty (rechtszekerheid) against the term of the President and members of the KPK; 3. do the provisions of article 34 of the ACT needs to be reinterpreted or KPK is meant as a conditional constitutional (constitutional conditionally) meant ", namely the Chairman and/or the substitute Leader............., as petitioned by the Applicant? Against the law as expressed in the petition of the Applicant, the Government can deliver things as follows: That interpretation meant back, conditional, or conditional constitutional (constitutional conditionally) of a norm in verse, chapter, and/or parts of the Act lends itself greatly and in practice such things has been shown in some of the earlier Constitutional Court Ruling, provided that the material charge against the norm in verse , article, and/or parts of the law that such testing can be appealed or have led to the loss of a constitutional, both against individual citizens of Indonesia, a private/public legal entities, community customary law 35, as well as State institutions. And against the norms of the charge material there are no constitutional or legal doors at least deadlocked (deadlock) in the implementation. To that end, be it reasonable if the terms norm in verse, chapter, and/or parts of the appealed Act interpretation back meant or conditional or provisional constitutional (constitutional conditionally). According to the Government the provision of article 34 of the ACT which States: KPK "corruption eradication Commission Chairman holds office for four (4) years and can be re-elected only once for a term of Office" in the implementation of the Article do not cause confusion, confusion, and harm to anyone. Even the leadership of Replacement KPK elected that his tenure continued leadership of former KPK's work remains given the right to run for Office and can be re-elected for one term. Presidential Decree Number 129/P in 2010 on the appointment of Dr. Busyro Muqoddas Mumammad sh., m. Hum as the Chairman and members of the KPK in the remainder of the term of Office 2007-2011 (attached) is to prove that the provision of article 34 of the ACT does not give rise to confusion but KPK thus provide legal certainty. Following the ruling of the Constitutional Court delivered a few based on the conditional constitutional footing (conditionally constitutional or unconstitutional conditionally) as follows: No REGISTERS SUMMARY VERDICT RULING 1. 058,059,060,063/PUU-II/2004 Act No. 7 of 2004 about water resources • Refused applicants petition the constitutionality of article 98 of the rules of passage of LAW number 7 of 2004 Article 98 statute a quo determines that "the permissions associated with the management of water resources has been published prior to the establishment of this Act is declared to remain valid until the validity period expires". 2 4/PUU-VII/2009 Act No. 10 of 2008 about the applicant's petition was granted by States • for most; That legal norms which reads "never convicted to imprisonment based on 36 general elections members of the House of representatives, the regional representative Council, and the Regional Representatives and Act No. 12 of 2008 about the second amendment in the Law Number 32 of 2004 concerning Regional Government • Stated the letter g of article 12 and article 50 paragraph (1) the letter g of Act No. 10 of 2008 general election of members of House of representatives , Regional representative Council, and the regional House of representatives (State Gazette of the Republic of Indonesia Number 51 in 2008, an additional Sheet of the Republic of Indonesia Number 4836) as well as Article 58 letter f law No. 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) is contrary to the Constitution of the Republic of Indonesia in 1945 conditional (conditionally unconstitutional); • Declare the letter g of article 12 and article 50 paragraph (1) the letter g of Act No. 10 of 2008 general election of members of the House of representatives, the regional representative Council, and the regional House of representatives (State Gazette of the Republic of Indonesia Year 2008 Number 51, Supplement State Gazette Indonesia court rulings which have the force of law remains for committing criminal acts which threatened imprisonment 5 (five) years or more "listed in the letter g of article 12 and article 50 paragraph (1) the letter g ACT 10/2008 as well as Article 58 letter f of ACT 12/2008 legal norm is unconstitutional is conditional (conditionally unconstitutional). The legal norm is unconstitutional when not fulfilled the conditions as follows: 1. Apply instead for a public appointments selected (elected officials) all did not results in additional criminal form of revocation of voting rights by a court decision that has the force of law; 2. Apply is limited to a period of 5 (five) years after the ex-convict finished undergoing imprisonment based on court rulings that have the force of law; 3. Honesty or openness about the background of his true identity as an ex-convict; 4. Not as perpetrators of the crime over and over again;


37 Number 4836) as well as Article 58 letter f law No. 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) do not have the force of law binds all unqualified terms: (i) does not apply to public office are chosen (elected officials); (ii) apply limited time only during the period of 5 (five) years since the convicted person finished undergoing punishment; (iii) exempt for former convict who openly and honestly expressed publicly that concerned the former convict; (iv) not as a perpetrator of crimes over and over; • Declare the applicant's application to reject the addition and the rest. 3 54/PUU-VII/2008 Act No. 39 of 2007 about the change in the law number 11 year 1995 concerning Customs • Stated grant application the applicant for most; • Declare Section 66A paragraph (1) of Act No. 39 of 2007 about the change in the law number 11 year 1995 concerning Tax Republic of Indonesia Country Gazette (2007 a. that the allocation results of the tobacco tax to fund the improvement of the quality of raw materials, as provided for in article 66A paragraph (1), must be interpreted to fund activities at the level of tobacco-producing farmers who need coaching and 38 Number 105 Additional Sheets, the Republic of Indonesia Number 4755) opposed conditional with the Constitution of the Republic of Indonesia in 1945; • Declare Section 66A paragraph (1) of Act No. 39 of 2007 about the change in the law number 11 year 1995 concerning Customs (Gazette of the Republic of Indonesia Number 105 in 2007, an additional Sheet of the Republic of Indonesia Number 4755), does not have binding legal force throughout all the provinces of the tobacco-producing provinces are not included as eligible tax allocation results of tobacco; • Setting so that the allocation results of the tobacco tax to the tobacco-producing provinces met the slowest start to the fiscal year 2010; • Reject the application for the rest; farmer's guidance, technology transfer, and the control technology at the level of farmers in order to produce the expected raw materials. What's more, Government policy in the field of health and the environment will affect the imposition of excise tax tobacco results and result in significantly reduced for the production and consumption of tobacco, tobacco farmers should be prepared so as to do a conversion from tobacco plants to other agricultural cultivation in the future; b. that the economic democracy with the principle of mutuality, efficiency of Justice, the balance of advances, and the unity of the national economy as set forth in article 33 paragraph (4) of the Constitution, according to the Court, although that provision may be interpreted differently in different contexts, but fundamentally, the tobacco excise funds yield of 2% (two perseratus) charged under section 66A paragraph (1) of the Act a quo held tobacco-producing provinces do not cover is not in keeping with the purpose of , spirit, and 39 goals contained in article 33 paragraph (4) of the Constitution, so therefore the Court held that Article 66A paragraph (1) of such unconstitutional or contrary to the Constitution, all interpreted and implemented without tobacco-producing provinces include to participate in receiving the tax funds allocation results of the tobacco; c. that the testing is precisely intended to guarantee and protect the rights and fundamental freedoms in a fair manner in the management of the State, whether in relationship to its citizens as well as between the Centre and the regions. In relation thereto in order to realize the relationship in question in a fair and successful, the Court will conduct a law smoothing (rechtsverfijning) against Article 56 paragraph (2) and paragraph (3) and Section 57 subsection (1) of the ACT the COURT, as already applied in previous Court rulings. In the use of the clause conditional constitutional (constitutional conditionally), a tested article is considered constitutional all implemented and applied in accordance with the opinion of the Court 40. When in implementation and its application turns out to be different from the opinion of the Court of Justice article and part of tested laws being contrary to the Constitution (unconstitutional); d. that the position of the article a quo at the moment now is unconstitutional and would be constitutional if the terms as outlined above are met. The constitutionality of article a quo will result in STATE BUDGET allocations directly against, for the fulfillment of the terms as set forth by the Court should be allocated in the STATE BUDGET. However, due to the STATE BUDGET in 2009 is running and when it goes into effect immediately would cause legal uncertainty, then the Court is set so that the allocation results of the tobacco tax to the tobacco-producing provinces in the STATE BUDGET met the slowest start to the fiscal year 2010. 4 102/PUU-VII/2009 Act No. 42 of 2008 Election of President and Vice President • Stated Article 28 and article 111 Act No. 42 of 2008 about elections of President and Vice President were declared a conditional That the constitutional rights of citizens as described above as a human rights and constitutional rights of citizens (the constitutional rights of the citizen), so that the rights of 41 (conditionally constitutional) all did not remove the voting rights of citizens who are not registered in the DPT and vice presidential election The President, or be defined include citizens who are not registered in the DPT on the condition and the following way: 1. Indonesia citizens registered in the DPT, citizens of Indonesia who have not registered in the DPT can use rights pilihnya by showing the card in the population (ID CARD) or valid passport for citizens of Indonesia who are abroad. 2. A citizen of Indonesia who used ID CARD must be equipped with family card (KK) or the like. 3. The use of voting rights for citizens of Indonesia who use Government-issued ID can only be used at the polling station (TPS) on RT/RW or the like in accordance with the address listed in his ID CARD. 4. Citizens of Indonesia as mentioned in number 3 above, the constitutional reform should not be inhibited or constrained by various provisions of the administrative procedure and anything that undermines citizens ' rights to use pilihnya.

42 before using the right pilihnya, first register with local KPPS. 5. Citizens of Indonesia which will use the right pilihnya with ID CARDS or Passports done on one (1) hour prior to the completion of voting in the POLLING STATION or the POLLING STATIONS Abroad. • The verdict is self executing that can directly be applied by ELECTION COMMISSION without the need for government regulation of a replacement law (PERPU) in order to protect, insure, and meet the constitutional rights of citizens to use the right pilihnya. 5,112,113/110,111 PUU-VII/2009 Act No. 10 of 2008 about the Election of members of the people's DewanPerwakilan, regional representative Council and the regional House of representatives • grant the petition of the Applicant for most; • Declare Article 205 paragraph (4) of Act No. 10 of 2008 is the conditional constitutional (constitutional conditionally). That is, it is meant that all constitutional enumeration of the second stage for the determination of the HOUSE of REPRESENTATIVES for the seat of the Centre gain participants Elections carried out in the following way: 1. Determine the equivalence of 50% (fifty perseratus) legitimate voice of the PANTHERS, that in the verdict of a Court or judge no quo test both the ruling of the Supreme Court or Electoral Commission Rules. The Supreme Court had done the testing against the Electoral Commission Regulation No. 15 of 2009 was action according to those powers; so did the Electoral Commission has done its according to regulation. However, because of article 205 paragraph (4), article 211 paragraph (3), and article 212 paragraph (3) of LAW 10/2008 has been rated 43 namely 50% (fifty-perseratus) of the PANTHERS in every electoral area members of Parliament; 2. Distribute the remaining seats at each election area House members to political party members of Parliament Election participants, provided: a. If the vote is legitimate or the rest of votes a political party member of Parliament Election participants reached at lack of 50% (fifty-perseratus) of the PANTHERS, then the political party gained one seat. b. If the vote is legitimate or the rest of the sound political parties Election participant members of Parliament did not reach at the lack of 50% (fifty-perseratus) of the PANTHERS and there is still the rest of the seats, then: 1) Sound legitimate political parties concerned are categorized as the rest of the votes are taken into account in the calculation of the third stage of the Chair; and 2) the remaining votes of political parties by the Constitutional Court as conditional (conditionally constitutional), then automatically all the contents of the regulation or court ruling which is not in accordance with this ruling becomes not applicable due to the loss of basic pijakannya.


44 concerned taken into account in the calculation of the third stage of the Chair. • Declare Article 211 paragraph (3) of Act No. 10 of 2008 is the conditional constitutional (constitutional conditionally). That is, all implemented with constitutional way as follows: 1. Determine the number of remaining seats not yet divided, namely by way of reducing the amount of the allocation of seats in the Provincial election of members area with the number of seats that have been divided on the basis of the calculation of the first stage. 2. Determine the number of remaining votes legitimate political parties election participant the Provincial Members, by means of: a. For a political party to win seats in the first stage of the counting, the number of valid votes the political parties is reduced by the number of seats the multiplication results obtained in the first stage of the political party with the PANTHERS. b. For political parties which do not have 45 seats in the first stage of the counting of the votes invalid, obtained the political parties categorized as the rest of the vote. 3. Set the gain seats political parties election participant members of Provincial, by way of share the remainder of seats to political parties the election members of Provincial participants one by one successive consecutive until all remaining seats are divided based on the rest of the depleted majority owned by political parties. • Declare Article 212 paragraph (3) of Act No. 10 of 2008 is the conditional constitutional (constitutional conditionally). That is, all implemented with constitutional way as follows: 1. Determine the number of remaining seats not yet divided, namely by way of reducing the amount of the allocation of seats in the LEGISLATIVE election of members area of Kabupaten/Kota with the number of seats that have been divided on the basis of the calculation of the first stage. 2. Determine the number of remaining votes legitimate political parties election participants 46 members of the DPRD district/city, by means of: a. For a political party to win seats in the first stage of the counting, the number of valid votes the political parties is reduced by the number of seats the multiplication results obtained in the first stage of the political party with the PANTHERS. b. For political parties that did not receive a seat on the first stage of the counting, the votes obtained by legitimate political parties categorized as the rest of the vote. 3. Set the gain seats political parties election participant Members of LEGISLATIVE district/Kotaden gan allot the remaining seats to political parties Election participant Members of LEGISLATIVE Districts/cities one by one in a row until all the rest of the seats are divided based on the rest of the depleted majority owned by 47 political parties. • Order the Electoral Commission carry out counting gains seats of the PARLIAMENT, Provincial, and SUB-PROVINCIAL PARLIAMENTS Kabupaten/Kota is the second phase of the 2009 election results based on the ruling of this Court; • Order the loading of this ruling in the news of the Republic of Indonesia as it should be; • Reject the application for the applicant to besides and the rest. 6 1/PUU-VIII/2010 Act No. 3 of 1997 concerning juvenile court Granted the petition of the Applicant • for most; • Stating the phrase, "... 8 (eight) years..., "in article 1 point 1, article 4 paragraph (1), and article 5 paragraph (1) of Act No. 3 of 1997 concerning juvenile court (State Gazette of the Republic of Indonesia number 3 in 1997, an additional Sheet of the Republic of Indonesia Number 3668), along with an explanation of the laws specifically related to the phrase" ... 8 (eight) years... "is contrary to the Constitution of the Republic of Indonesia in 1945 conditional (conditionally unconstitutional), meaning that it is unconstitutional, unless it is meant" ... 12 (twelve) years... "; • Stating the phrase, "... 8 (eight) years..., "in article 1 point 1, that the fixing of a minimum age of 12 (twelve) years as a threshold age for legal liability has been accepted in the practice of some countries, as also recommended by the UN Committee on the rights of the child in its General Comment, February 10, 2007. With the limitations of the age of 12 (twelve) years then were in accordance with the provisions of the criminal can be dropped to the child in article 26 paragraph (3) and paragraph (4) of the ACT the Court Children 48 article 4 paragraph (1), and article 5 paragraph (1) of Act No. 3 of 1997 concerning juvenile court (State Gazette of the Republic of Indonesia number 3 in 1997, an additional Sheet of the Republic of Indonesia Number 3668) along with an explanation of the laws specifically related to the phrase "... 8 (eight) years ... "does not have the force of law binding conditional (conditionally unconstitutional), meaning that it is unconstitutional, unless it is meant" ... 12 (twelve) years... "; • Reject the application for the Applicant in addition to the remaining 7 and 49/PUU-VIII/2010 Act No. 16 of 2004 about the Attorney-Grant application the applicant for most; -Declare Article 10 paragraph (1) letter d Act No. 16 of 2004 about the Prosecutor's Office of the Republic of Indonesia (the State Gazette RepubIik Indonesia in 2004, the number 67, State Gazette Supplementary RepubIik Indonesia Number 4401) is in accordance with the Constitution of the Republic of Indonesia in 1945 conditional (conditionally constitutional), which meant "all the constitutional term of the Attorney General that ended with the expiration of the term of Office of the President of the Republic of Indonesia in one period of tenure together Cabinet members-that the laws on the limitation of the term of the Attorney General not or not yet set up such things, then the appointment and term of Office for the State Attorney General now in progress cannot be said to be illegal, for example on the grounds, as opposed to that view. The reason, at the time of setting the position of the Attorney General is now indeed there is no provision in the Act which require that the President chose the alternative, so there is no problem of validity, whether the constitutionality or legality. -that because of the legal uncertainty has occurred from section 22 paragraph 49 or dismissed by the President in Office in the period concerned "; -Declare Article 10 paragraph (1) letter d Act No. 16 of 2004 about the Prosecutor's Office of the Republic of Indonesia (the State Gazette RepubIik Indonesia in 2004, the number 67, State Gazette Supplementary RepubIik Indonesia Number 4401) do not have the force of law binds all not meant "that the Attorney General's term ended with the expiration of the term of Office of the President of the Republic of Indonesia in one period of tenure together Cabinet members or dismissed by the President in Office in the period concerned"; -Order the loading of this ruling in the news of the Republic of Indonesia as it should be-Refused the applicant's application for the addition and the rest. (1) the letter d LAW 4/2004, then since he says this ruling the court give a definite interpretation of regarding the term of Attorney General until he had done legislative review by the framer of laws that will konstitusionalitasnya the terms defined in the amar this ruling; -that at the lack of there are four alternatives for determining when to start the stopping time is lifted and State officials occupied his Office in casu the Attorney General, namely, first, based on periodization Cabinet and/or periods of tenure of the President who picked it up; Second, based on the period (the time period certain) that fixed without being associated with a political position in the Cabinet; third, based on the age or the age of retirement and; Fourth, based on diskresi President/officer picked it up; -that because of the uncertainty of the law goes against the Constitution should then constituent act immediately do a legislative review to give certainty by choosing one of the alternatives. Based on the description above, according to the Government there are obvious reasons, when a charge material norms in legislation must be meant


50 as the constitutionality conditional. To that end, against the provisions of article 34 of the ACT need not be Government according to KPK is meant as a conditional constitutionality. Based on the explanation and the above mentioned argumentation, the Government appealed to the Constitutional Court Judges Assembly checking, disconnect, and prosecute the application for testing Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission against the Constitution of the Republic of Indonesia in 1945, can give a verdict as follows: 1. Refuse the application for testing the Appellant entirely or Sha-whether appeal testing applicants is unacceptable (niet ontvankelijk verklaard). 2. Accept the Description of the Government as a whole. 3. Declaring the provisions of article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission does not conflict with the provisions of article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945. However, if his Excellency the Chairman of the Constitutional Court Judges Assembly/argues another, please wise Ruling and seadil-fair (ex aequo et bono). [2.4] considering that the petition against the applicant, Representatives have given affidavits are received at the Registrar of the Court on 9 June 2011, outlining the following things: Against the evidence 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) The applicant's Qualifications to be met by the applicant as a Party have been regulated in the provisions of article 51 paragraph (1) of the ACT the COURT , which States, "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;

51 b. customary law community unity along is 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) of the ACT, the COURT emphasized 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 the legal position of the Applicants who have (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 the ACT the 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 a law must meet the five 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; b. that rights and/or constitutional authority the Applicant is considered to 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;

52. 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 legislation a quo, the Applicant does not have the legal standing of the qualification (legal standing) as party petitioners. 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 holds that the Applicants have no legal position (legal standing) as required by the provisions of article 51 paragraph (1) of the law on the Constitutional Court and on the basis of the ruling of the Constitutional Court the number 006/PUU-III/2005 and no. 011/PUU-V/2007. Based on this view, the HOUSE of REPRESENTATIVES please to the Tribunal of judges of the Constitutional Court, to declare that the Applicant has no legal position (legal standing), so that the application for the Applicant already duly declared unacceptable (niet ontvantkelijke verklaard). But if the Tribunal of judges of the Constitutional Court holds another HOUSE, further conveying the Information upon the subject matter of case material testing legislation Commission for the eradication of criminal acts of corruption. 3. Testing Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission Petitioners in the petition for a quo held that rights of konstitusionalnya have been harmed or potentially cause any harm by the enactment of the provisions of article 34 of the ACT KPK.

53 Against the proposition that the applicants put forward, the HOUSE held by giving the description/explanation is as follows: 1. That, PARLIAMENT assumes the application for the Applicant no right and wrong, for testing the charge material in verse, chapter, and/or parts of legislation against the Constitution, then the applicant is obliged to elaborate clearly in his petition of right and/or authority to konstitusionalnya were harmed (vide Article 51 paragraph (2) and paragraph (3) the letter b of ACT MK). In the petition for a quo the Applicant does not explain clearly and forcefully about the charge material provisions that have been tested for petitioned negated the recognition, guarantees, protection and legal certainty and equal treatment before the law. The HOUSE of REPRESENTATIVES holds that the Applicant is not domiciled in a position that is right konstitusionalnya harmed by the provisions of article 34 of the Act a quo as described the applicant. 2. That, according to the HOUSE of REPRESENTATIVES if the supposition is correct, then the applicant's REPRESENTATIVES argued that the right to apply the test of article 34 of the Act a quo was supposed to be the party that currently has elected a replacement for leadership of the corruption eradication Commission, because it has the interests of the law related to constitutional rights as the Parties elected as successor to the leadership of the KPK. 3. That the report of the Commission in accordance with the PARLIAMENT about the results of election Candidates Substitute the leadership of corruption eradication Commission Plenary meeting of the HOUSE of REPRESENTATIVES on November 30, 2010 has been reported that in the Plenary meeting of the HOUSE of REPRESENTATIVES Commission III on the Prospective Replacement KPK Chairman, Commission III after hearing the views of 9 (nine) fraction, where the 8 (eight) Faction in his view States that the term of Replacement KPK Chairman continue the remainder of the term of leadership of the KPK 2007-2011 period which will end in December 2011 While one faction of the PPP Faction namely stating that the term of Replacement KPK is four (4) years. But eventually the HOUSE Plenary meeting of the Commission decided that the related term of Replacement KPK Leader was continuing on the remaining term of leadership of the KPK period 2007-2012 which will end in December 2011.


54 4. That the House has issued the decision of the HOUSE of REPRESENTATIVES number 01/PARLIAMENT/II/2010-2011 about the approval of representatives of the Republic of Indonesia against the Would-be replacement for corruption eradication Commission Chairman who decide the approval of representatives of the Republic of Indonesia against the prospective Replacement KPK, that is the brother of Dr. Mohammed Busjro Muqqodas, SH, m. Hum, and approve a substitute term leadership of corruption eradication Commission is proceeding with the remainder of the term of leadership of the corruption eradication Commission in the 2007 – 2011 period which will end in December 2011. 5. That, the HOUSE held the provisions of article 34 the KPK law States: "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office", in the implementation, does not cause doubts, confusion, loss or in a position that cannot be implemented, it is characterized by the presence of the President of the Republic of Indonesia Decree Number 129/P in 2010, which sets Dr. Muhammad Busjro Muqqodas , SH, m. Hum as the Chairman and members of the corruption eradication Commission in the remainder of the term of Office 2007-2011, has been realizing the existence of legal certainty (rechtszekerheid) against the term of the President and members of the corruption eradication Commission. Based on the evidence, the HOUSE held that the provisions of article 34 of the Act a quo does not cause a loss or potentially eliminate the constitutional rights of the Appellant and therefore the application of the test material is against the law a quo is not justified by law. Thus, we believe that the provisions of article 34 of the Act a quo is not at all contrary to Article 28D paragraph (1) of the Constitution. That is based on the above propositions, the HOUSE may invoke the Chairman/Assembly of Judges of the Constitutional Court gives verdict amar as follows: 1. Declare the Applicant a quo has no legal position (legal standing) so that the application for a quo must be declared inadmissible; 2. Refuse the application for a quo for entirely or at least petition a quo is unacceptable;

55 3. 34 of the Act states a quo is not incompatible with article 28D paragraph (1) of the Constitution. 4. Declares Article 34 of the Act a quo has the force of law remain binding; If the Chairman of the Constitutional Court Judges Assembly/argued others, we ask that the ruling seadil-fair (ex aequo et bono). [2.5] considering that the applicant had delivered a written conclusion received at the Registrar of the Court on 7 June 2011, which substantially stated remain 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 main problems of the application of the Applicant a quo is the test of article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission (State Gazette of the Republic of Indonesia Number 137 in 2002, an additional Sheet of the Republic of Indonesia Number 4250, hereinafter referred to as the ACT of KPK) against Article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution); [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) will consider in advance the following: a. the authority of the Court to examine, judge, and break the petition a quo; b. the position of the law (legal standing) Applicant; Against both, the Court held as follows: 56 Court of Authority [3.3] considering that according to section 24C subsection (1) of the Constitution and article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316, hereinafter referred to as ACT MK) juncto Article 29 paragraph (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 number 8 Additional Sheets, the Republic of Indonesia Number 4358), the Court authorized the judge on the first level and the last award is final to examine legislation against the CONSTITUTION of 1945; [3.4] considering that the applicant's plea is to test the constitutionality of norms of article 34 of the ACT KPK against the Constitution, therefore the Court is authorized to inspect, judge, and break the petition a quo; The position of the law (legal standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT, the COURT may apply for a 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: a. position as the applicant referred to Article 51 paragraph (1) of the ACT the COURT;

57 b. There is whether the loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that Court since the ruling of the Constitutional Court the number 006/PUU-III/2005 dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007 dated 20 September 2007, as well as 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 the constitutional losses as postulated would not or no longer occur; [3.7] considering that under article 51 paragraph (1) of the ACT the COURT and terms of the loss of rights and/or constitutional authority as set forth above, then the Court will consider the position of the law (legal standing) of the Applicant in the application for a quo; [3.8] considering that the Applicant argued that as an individual citizen of Indonesia and legal entities (proof of P-1 to P-3 Evidence) that considers the rights and/or authority konstitusionalnya harmed by the enactment of Section 34 of the ACT CCA; The Applicant I postulated that the applicant as a tax payer (tax payer) and the citizen's concern with corruption eradication and public interest has to be broken with 58 konstitusionalnya interests of the existence of legal uncertainty in the interpretation of Article 34 of the ACT is related to the term of the KPK Leader replacement KPK. As for the Applicant who is a legal entity which has a vision and mission to advocate the interests of the public and the eradication of corruption judge interpretation and implementation of the provisions of article 34 of the ACT can weaken the KPK institution KPK and corruption eradication is widely; Based on the description, the Applicant argues that the interpretation of the term of the replacement KPK Chairman for 1 year will inhibit optimization and effectiveness of the eradication of criminal acts of corruption and the raises legal uncertainty against the term of chairmanship of Replacement KPK, which result in: ß Not optimal the work direction of replacement KPK in the eradication of criminal acts of corruption. It is denying the fact of establishment of the KPK as contained in the preamble whereas the letter a and letter b of ACT CCA; ß Raises legal uncertainty with regard to the term of the Chairman of the House of REPRESENTATIVES when KPK replacements do reshuffle replacement KPK as set forth in article 32 paragraph (1) of the ACT CCA; The Applicant argues that the KPK is a very reliable partner for the work of the eradication of criminal acts of corruption. The uncertainty of the law, cause ineffectiveness corruption eradication work done by KPK while weakening the functions of prevention and penindakan done KPK terhambatnya work, thus causing the KPK resulting directly against corruption eradication advocacy carried out by the applicant. Based on the description, the Applicant argues that Article 34 of the ACT is contrary to the CCA Article 28D paragraph (1) of the CONSTITUTION of 1945; On the other side of the House and the Government argued that the Applicants did not have the position of the law (legal standing) to apply for a quo on the grounds that the applicant is not in a position or not in the circumstances postulated by the Applicant as such because it is essentially the Applicant if desired or if desired, at the time, can follow the selection or the selection of prospective substitute Chairman of the KPK already finished it. According to the Government and the HOUSE of REPRESENTATIVES if any presumption of the Applicant


59 the applicants right or right is, according to the Government, should that apply this testing or norm that is considered contrary to the Constitution, such as described above is the parties who have elected to become a replacement for the leadership of the KPK. Based on the above considerations, the Applicant has no legal position (legal standing) and Permohoan the Applicant no precise and vague (obscuur libel); [3.9] considering that the Appellate Court ruling refers to Number 27/PUU-VII/2009 dated 16 June 2010 outlining the legal position concerning (legal standing) for an individual and NGO/NGO in applying testing legislation as follows, "from the practice of the Court (2003-2009), private CITIZENS especially taxpayers (tax payer, vide Verdict Number 003/PUU-I/2003) a variety of associations and NGOS/NGO which concern against the legislation in the interest of the public , legal entities, local governments, State agencies, and others by the Court is considered to have legal standing to apply for testing, both the formyl or materially, the legislation against the Constitution "; [3.10] considering that on the basis of the considerations in paragraphs [3.7], paragraphs [2.4], paragraphs [2.4] above, and linked with the propositions of constitutional losses stated by Applicant I as an individual citizen of Indonesia and the applicant II as a legal entity of public and/or private matter (concern) towards the eradication of corruption, so that according to the Court the applicant has the legal position in applying for a quo; [3.11] considering that because the court authorities and the applicant has the legal position (legal standing) then the Court will take into consideration regarding the subject matter of the petition; The subject matter of the petition [3.12] considering that the Applicant in their petition on constitutionality test Article is anyway the 34 ACT KPK, stating "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office";

60 [3.13] considering that the Applicant argued that Section 34 of the ACT is contrary to the CCA Article 28D paragraph (1) of the Constitution with the principal reasons as follows: ß in accordance with the ACT on KPK, head of KPK numbered 5 people and running time of jabatanya for 4 years, but problems arise when Antasari Azhar was dismissed as one of the KPK Chairman by the President. The next question is, who is to replace and how long the period of his/her term associated with article 33 paragraph (1), subsection (2), and article 34 of ACT CCA; ß That to choose a replacement KPK Chairman, selection Committee KPK has done the selection on the 25th May 2010 until 27 August 2010 in order to find the selected name 2. Is Busyro Muqoddas and Bambang Widjojanto was selected as candidate for the leadership of the replacement. Before the second name was submitted to the DPR-RI, the selection Committee the selection of the leadership of replacement KPK through one of its members i.e., Todung Mulya Lubis, stating that the term of chairmanship of replacement KPK is 4 years. Meanwhile, the HOUSE of REPRESENTATIVES Commission III declared the opposite, that the term of chairmanship of replacement KPK is 1 year; ß the DPR-RI resting interpretation of term of chairmanship of replacement KPK based on Article 21 subsection (5) in which the leadership of the KPK collegial working collectively. So that the provisions of article 34 of the ACT meant, head of KPK replacement KPK ended simultaneously. Therefore, a replacement for the leadership of the KPK was elected just continue the remainder of the term of Office, i.e. one year; ß That interpretation of the members of Parliament-RI against Article 34 of the ACT which caused the KPK Leader replacement KPK selected i.e. Busyro Muqoddas, only served for one year, so that has resulted in uncertainties of the law against replacement KPK Chairman's term was selected. The term uncertainty has also impacted on the effectiveness of the work of the leadership of the KPK in the eradication of criminal acts of corruption, even at the same time potentially debilitating corruption eradication by KPK agenda that aims to bring about a just, prosperous society, and sejehatera based on Pancasila and the 1945 CONSTITUTION; ß Interpretation against the leadership of the Chair's term for 1 year KPK conducted by DPR-RI and strengthened by Presidential Decree No. 129/P Number 61 in 2010 on the appointment of Mohammad Busyro Muqoddas Chair as leader of the KPK and simultaneously as Chairman of KPK was selected based on textual norms ACT CCA under normal circumstances. While in the Act of a quo did not mention in the normative term of chairmanship of replacement KPK when abnormal conditions. The term of the provisions referred to in Article 34 of the ACT should be EXTREMLY meant not only against the leadership of the KPK, but also to the leadership of replacement KPK. It complies with the method of systematic interpretation, logical, teleologis, and have; ß That interpretation of the term of chairmanship of replacement KPK by PARLIAMENT and the Government's response to the provisions of article 34 of the ACT KPK has raised uncertainty the law against replacement KPK Chairman's term that occurs when the presence of one of the KPK Leader quit or be dismissed as it is in article 32 paragraph (1) Figure 1, Figure 4, Figure 5, and Figure 6, so that the Constitutional Court should give a proper interpretation of the provisions of article 34 of the ACT against the KPK in the future, so that there are no more diverse interpretation among the parties concerned towards the conditions that lead to the absence of legal certainty which is contrary to Article 28D paragraph (1) of the Constitution which reads, "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law." [3.14] considering that to prove the evidence if possible, the claimant has submitted evidence of a letter/writings namely proof of P-1 to P-11 Evidence, and has proposed a three-person expert named Prof. Dr. Saldi Isra, sh., D Riyana Hardja Pamengkas, SE., and Dr. Todung Mulya Lubis, sh., LLM., who testified under oath in the trial date of 23 May 2011 and 31 May 2011 , that more information has been loaded on the Sit of the above, that substantially clarifies as follows: Expert Prof. Dr. Saldi Isra, SH. ß Article 34 of ACT KPK, according to experts to be the only article that talk about a term or duration of a leadership of the KPK and when referred to the explanation of article 34 of the ACT, the CCA mentioned that Article a quo quite clear, it means there is no longer another explanation that can be referenced for 62 explains this. Anyone the leadership of the KPK, then his term was 4 years, whether he was from the very beginning or later occurs the process of succession in the middle of the road. People who continue or replace the KPK Leader stopped in the middle of the road, should have the same 4-year tenure with the leaders of the other, in the sense of, if it is lifted after a period of normal walking 2 years or 3 years, then must then be calculated starting from 4 years of his appointment when it replaces that position. The replacement processes, may also refer to the process of changing of the Constitutional Judges a decent emulated or serve as a system for independent institutions, because what happens in COURT, the process of succession in MK walk naturally; ß Experts compare to continue existing in the term member of Parliament. Intertemporal substitution in the event, the concept is obviously is intertemporal substitution, i.e. spend the rest of the term left by previous members, so that the person who replaced for members of Parliament, members of PARLIAMENT or members of DPD is a person who can be the next most votes. Supposedly, according to experts, when the concept was accepted to replace Chairman or Commissioner of the KPK, the new selection is not done properly, and should that be a leader is one who can voice the number sixth in the House. The way the intertemporal substitution between the HOUSE of REPRESENTATIVES with the leadership of the KPK is different, because the change is no longer the person who gets the most votes when implemented next fit and proper test in the House; ß KPK is independent State agencies because first referred to in ekplisit of the ACT, the two KPK, the independent KPK for not being part of the structure of executive agencies, when CCA became a part of the structure of executive agencies then the KPK will be referred to as executive agencies instead of independent agencies. KPK is independent agencies in understanding expert, because he is the institution of the independent State, then later in many theories attempt to mention how charging independent State institutions, and the most commonly used is the there is a pattern called the turn or cascading stages terms, and for the KPK, was simultaneously. The first period was made simultaneously, and stopped synchronously because there is no substitution occurs in the middle of


63 road, but the second period the Commissioner, there is a stop in the middle of the road. Expert in understanding, that is the initial step, apply cascading turnover problem. Charging independent institutions in many countries laboured not simultaneously each passing and not simultaneously to recharge for the sake of continuity. There are a few disadvantages when carried out simultaneously because his term is four years, so that a single regime can determine the process of charging independent institutions including with the KPK. If there is room to begin his term stage, the Constitutional Court in place strengthen pattern like that so pergantiannya not proceeding with the remainder of the existing term but it is starting from scratch. In three of the four stops or Commissioner of the people stop, there are still remnants of the old for continuity. The thing is, the first character of independent State agencies, the second character is a legal theory in the State administration, which was put forth by Asimov, that person or the leadership of the institutions of the independent State should be dismissed with the obvious reasons, outside powers, including the powers of the Executive, should not be free to decide how to process the dismissal of Commissioner-the Commissioner of the independent State institutions, the third is the process of filling or replacement komisoner should be done with tiered pattern , not in order one stage. The filling of the post of independent State agencies, attempted not in unison although initially all at once, for example, the pattern of substitution in the American Senate, at first definitely unison but then there is set up to process the next turn is not the same with the aim at establishing continuity, so that according to experts, the theory being used dibanyak State can be a pattern for the commissions independent country because when everything changed simultaneously , the harm is a particular regime could be dominant for determining process pengisiannya; ß When setting the system's attempt to talk especially independent institutions, it was time to begin the process of filling the stages especially for State institutions were given the status of independent which does not become part of the executive agencies, including outside the KPK. When everything is replaced recently then the new person will work from zero to a 64 independent institutions but if the previous still persist while new entry, will be easier to make adjustments; ß no handle that can be used to interpret, one of them using a systematic interpretation of, though in different areas. One of the experts offer comparisons is a theory that says, "If the institutions are given the status of an independent institution that is pengisiannya or pergantiannya process is not done simultaneously." Related Busyro Muqoddas, when associated with a presidential decree, it appeared no other because the interpretation of the Government's response to the article, according to most authorities interpret is the Constitutional Court, so that should not be interpreted by the holder outside the powers of the judiciary. Experts D Riyana Hardja Pamengkas, SE. ß substitute KPK Members must be served in full for 4 years based on the principle of merit, namely first, sustainability leadership more assured on the basis of a collective and collegial as mandated by LAW, the two KPK, head of KPK 2007-2011 consists of all new members, although there are from internal sources, but not from the elements of the leadership, so that the principle of continuity of leadership is not reached and what happens is the dominance of the leadership of Antasari Azhar who during one of the first year was so intense it appears in the media , which should not be like that. It became one of the reasons why sustainability leadership collectively not reached due to the internal source of became Chairman instead of Chairman for long; ß there is such a culture shock to become Chairman, and then not being able to balance the leadership kolektivitas leadership in togetherness, so the dominance held by one leader that did actually become Chairman, but it is not supposed to be like that; ß other reasons that are in line with the common reason put forward was the reason the costs, because the resources mobilized by the selection Committee to produce a candidate Member of the leadership of the KPK is huge, not from the side of cost Rp1,6 billion, but the energy deployed. Focus and the deployment of resources for checking, well done by NGO 65 as well as by other institutions, difficult votes with money. So according to the experts, it would be used as an excuse to strengthen the leadership that anyone elected seyogianya not in the remainder of the term of Office, but during a four-year term; Expert Todung Mulya Lubis Dr., Sh., LLM. a new KPK Chairman ß selected, not all together in one package, but served for 4 years, since he was chosen as leader of the KPK. There are several reasons-that is, there is no provision that the entire leadership of the KPK should be selected at the same time and ends at the same time anyway, so there is no provision of the entire leadership of the KPK must serve for one wave of the same service. Because of the leadership of the KPK is composed of five members of the KPK Chairman or Commissioner of the KPK and in associated with article 34 of the ACT KPK, head of KPK holds a four-year term and can be re-elected for only one term, then according to the expert, head of KPK is composed of 5 members of the KPK holds the term for 4 years from each of the five the KPK Leader; ß Experts didn't see the KPK in law knows the so-called intertemporal substitution, so the interpretation of experts remains the conclusion that although selected in the middle term, not in one package, its interpretation is still run one full term, which means that running the term for four years. The existence of the poor laws a quo raises problematic, but experts see that there is a challenge to make one interpretation, if indeed the traditional interpretation are treated as long as it is valid or invalid; ß in terms of continuity, the continuity of the work of the institution, it would be better if the leadership of a strategic and important institutions such as the KPK is not new. This would create a continuity of employment agencies from time to time, so in terms of sustainability, the choice will be very beneficial and in terms of the effectiveness of the work of the individual leadership of the KPK, the newly appointed at the end of 2010, this option would also be much better, for when you must opt-in to expire in 2011, it is so effective is not caused by the brevity of the term, so there will be many benefits to the public , in particular for the eradication of corruption, for law enforcement jobs, even the overall selection process 66 until his appointment was almost equal to half of the remaining term of Office; ß in terms of cost and in terms of time, is definitely a waste, an expenditure that could not dijustifikasi, and in terms of the independence of the KPK, the choice will also be more beneficial to the future, because by looking at the experiences in other countries, which is staggered elections which did not at once one package, already used as references are everywhere, in order to maintain the effectiveness of the , continuity, and the independence of the leadership, and the interpretation of experts want to wake up as a way out to ensure there is no Leader and CCA are appointed by the same one or a Council President who strengthens institutions KPK forward; ß staggered System also began to embraced by many parties, including by non-governmental organizations, so that it becomes a trend, one interpretation is done to ensure continuity and legal certainty guaranteed by article 28D paragraph (1) of the Constitution. The leadership of the KPK, has the right to obtain a guarantee of legal certainty and equal opportunity, though the interpretation has not been fully accepted in Community law, but experts see in the perspective of the State administration in Indonesia is one of the challenges and also can refer to the experience in other countries; Experts on Understanding the meaning of ß members concerned, whether the surrogate was unable to remain or are already a convicted person in this case is to replace the void of leadership of the KPK, replacing the one void in relation to Article 34 of the ACT KPK. The leadership of the Commission, is the Chairman of KPK Deputy Chairman or KPK, hold office for four years and against a replacement should also be granted the same rights, serving for four years. It is not in the context of intertemporal substitution as happened in the House that continues the rest of the term. When just looking at Article 33 of the ACT will be fooled the KPK, with the interpretation that the prospective Member's replacement is the successor who continued the rest of the term, but in the context of the interpretation of a more holistic and systematic, according to experts, regardless of who was appointed to fill a vacancy, shall have the same rights to


67 continue, to undergo a single term, as written in article 34 of the ACT i.e. the KPK for four years; ß the breakthrough it is interpretation which is the region of the authority of the Constitutional Court and therefore experts hand over everything to the wisdom and the wisdom of the Assembly of the Judges of the Constitutional Court. Article 28D paragraph (1) of the Constitution is given as to the constitutional rights of every citizen, and experts using a staggered approach to the replacement happened on various commissions or institutions. Constitutional issues with the associate with article 28D paragraph (1) of the Constitution because of its functional position should be distinguished with the title of representation, which has the right to guarantee legal certainty and justice; [3.15] considering that the petition against the Applicants, the Government has provided a description of the Council dated 28 April 2011 and gave the affidavits are received at the Registrar of the Court on 18 May 2011, that substantially clarifies the following: ß That petitioners petition against the above mentioned, there are two issues which the Government can tell us. First, is it true that the provisions of article 34 of the ACT is deemed contrary to the provisions of the CCA Section 28D subsection (1) of the CONSTITUTION of 1945; Second, whether the provisions of article 34 of the ACT KPK needs to be reinterpreted or need to be requested of interpretation, or is meant as a conditional constitutionality or conditionally with constitutional Government is meant as already conveyed. ß after the Government carefully examined the various constitutional court ruling regarding the conditional, the Government argued that the interpretation or constitutionality meant conditional or unconditional charge of material norms in paragraph, article or a section in the legislation, if in the norms or article a quo has raised a constitutional disadvantage, either against an individual, a citizen of Indonesia, a private or public legal entities, community customary law as well as State agencies , and against the norms of the charge material, there are no constitutional or legal doors at least deadlocked or dead lock in the implementation. According to the Government, the provisions of article 34 of the ACT stating the KPK, "corruption eradication Commission Chairman 68 hold office for 4 years and can be re-elected only once for a term of Office", in the implementation, does not cause doubts, do not give rise to confusion and its implementation do not cause the things that cannot be implemented. It is proven and is characterized by the presence of Presidential Decree Number 129/P/2010. That means it would be very different if we see or notice, as the Constitutional Court has decided is related to the term of the Attorney General. There there is no existence of provisions as to when the dismissal, when the Rapture is back, but in the ACT of KPK pursuant to section 34 of the ACT the KPK has been petitioned firmly, no doubt, there is no confusion that there have been actions that are already underway to appoint and dismiss. ß the provisions of article 34 of the ACT, the KPK is meant need not constitutionality conditional or conditionally constitutional and section 34 of the ACT does not conflict with CCA Section 28D subsection (1) of the Constitution. [3.16] considering that the petition against the Applicant, Representatives have given affidavits are received at the Registrar of the Court on 9 June 2011, more information has been loaded on the Sit of the above, which is substantially as follows: ß correspond to the HOUSE of REPRESENTATIVES Commission Report regarding the results of the election of the candidate for a replacement Chairman for corruption eradication Commission Plenary meeting of the HOUSE of REPRESENTATIVES on November 30, 2010 has been reported that in the Plenary meeting of the HOUSE of REPRESENTATIVES Commission III on the Prospective Replacement KPK Chairman The III Commission, after hearing the views of 9 (nine) fraction, where the 8 (eight) faction in his view States that the term of replacement KPK Chairman continue the remainder of the term of leadership of the KPK 2007-2011 period which will end in December 2012, while one (1) fraction of the PPP Faction namely stating that the term of chairmanship of replacement KPK is four (4) years. But eventually the HOUSE Plenary meeting of the Commission decided that the related term of replacement KPK Leader was continuing on the remaining term of leadership of the KPK period 2007-2012 which will end in December 2011. The HOUSE of REPRESENTATIVES has issued Decision number 01/PARLIAMENT/II/2010-2011 about the approval of representatives of the Republic of Indonesia Against Would-be Substitute corruption eradication Commission Chairman 69 who decide the approval of representatives of the Republic of Indonesia against the prospective Replacement KPK, that is the brother of Dr. Mohammad Busyro Muqoddas, SH, m. Hum., and agree to a term of Replacement KPK Leader was continuing on the remaining term of leadership of the KPK in the 2007 – 2011 period which will end in December 2011; ß the HOUSE held the provisions of article 34 of the ACT which States: KPK "corruption eradication Commission Chairman holds office for four (4) years and can be re-elected only once for a term of Office", in the implementation, does not cause doubts, confusion, loss or in a position that cannot be implemented, it is characterized by the presence of the President of the Republic of Indonesia Decree Number 129/P in 2010, which sets Dr. Mohammad Busyro Muqoddas , SH, m. Hum., Chairman of the remaining members of the corruption eradication Commission in the remainder of the term of Office 2007-2011, has been realizing the existence of legal certainty (rechtszekerheid) against the term of the President and members of the KPK; ß is based on the proposition, PARLIAMENT argued that the provisions of article 34 of the Act a quo does not cause a loss or potentially eliminate the constitutional rights of the Appellant and therefore the application of the test material is against the law a quo is not justified by law, so that the provisions of article 34 of the Act a quo is not at all contrary to Article 28D paragraph (1) of the Constitution. The opinion of the Court [3.17] considering that after the Court examine carefully the petition of the Applicant, the evidence is a letter/writings from the Applicant, a description of the expert of the Applicant, a description of the Government, a written description of the House of representatives, as well as the written conclusions of the Applicant, the basic issue should be answered by the Court are: "what are the constitutional term of Office of members of the leadership that replaced the KPK members has ceased under section 34 of the ACT KPK just forward the Chairman's term was replaced or get a full term of four years?"

70 [3.18] considering that before the Court to answer the question, there is the legal fact that the HOUSE of REPRESENTATIVES and the President determines the term of Office of members that replace the KPK Leader stopped in his tenure was just continuing the remainder of the term of Office of the KPK Leader digantinya. In determining the term of leadership of the HOUSE of REPRESENTATIVES, substitute basing on the interpretation of article 21 paragraph (5) of the ACT specifies that the KPK Chairman KPK collegial working collectively, so that the provisions of article 34 of the ACT meant that the KPK Chairman KPK stop simultaneously. Thus, the leadership of the substitute member replaces the Chairman who quit in his tenure only to act as a substitute for intertemporal, therefore only continue the term of Office of members of the leadership that replaced it. On the other hand, the Applicants refer to Article 34 of the ACT stating the KPK, "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office," which according to the Applicant a period of four years for the leadership of the KPK, is a term that applies both to the Chairman to be appointed simultaneously since the beginning as well as the leadership that replaced the leadership of that stopped at the time of his tenure; [3.19] considering that according to the Court, the HOUSE of REPRESENTATIVES and the President can only do an interpretation of a provision of the Act in the framework of implementation of the Act a quo. However, any Court authorized to judge constitutionality interpretation of a norm of law carried out by either the PARLIAMENT or the President, if that interpretation resulted in threatening respect, protection and fulfilment of the constitutional rights of citizens and in order to guarantee the performance of the work and norms of the Constitution correctly. It does not mean that the Court has been out of test contention its norm of law against the Constitution as the textual basis is stated in the Act. Based on the provisions of article 1 paragraph (2) of the Constitution which States, "Sovereignty is in the hands of the people and is exercised according to the basic law", contained the meaning that the Organization of the Government of the State by State organs should be based on the Constitution. On the basis of that State of Indonesia is a country that has a


71 constitutional Government, which was formed in the implementation of the Constitutional Court to control and guarantee that the constitutional system is running. Therefore, in carrying out its duties and responsibilities as constitutional courts constitutional norms so that escorting run correctly to fit the spirit embodied in the Constitution, the Court in addition to read and understand the text of the Constitution, is also obliged to dig and find values and philosophical foundations implied in the Constitution to decide every issue faced in Court. In this case, if the Court finds the interpretation of norms of law to the contrary, distorted and/or does not comply with the norms and spirit of the Constitution, then based on the functions, duties, and those powers to control the Constitution, the Court is authorized to assess the constitutionality of the interpretation of a norm of law. Therefore, in assessing the application the Applicant a quo, the Court should also assess the interpretation of provisions of law a quo on the level of implementation to ensure the holding of the country's constitutional system embraced by the Constitution; [was 3.20] considering that the Court will judge the constitutionality interpretation of the provisions of article 34 of the ACT KPK against the norms contained in the Constitution. The Applicant argued that that the determination of the term of Office of members of the leadership of Replacement KPK that simply continue the term of the remaining members of the KPK Leader stops before reaching the four-year period is contrary to the principle of legal certainty is fair as specified by article 28D paragraph (1) of the Constitution. According to the applicant's term as a member of the leadership of the KPK's replacement not only completed the remainder of the term of the Member replaced, but occupied a full term of four years. According to the Court, the provisions of article 34 of the ACT KPK itself already very clear and unequivocal that the KPK Chairman's term is four years, and it does not pose the question of constitutionality. However, the provisions of article 34 of the ACT of the constitutional issues the KPK when the HOUSE of REPRESENTATIVES and President of interpreting that provision of article 34 of the ACT does not apply to the MARCHESA, all members of the leadership of the KPK and applies only to the leadership of the KPK 72 lifted simultaneously five people since the beginning of the period, while for the leadership that replaced a member of the leadership who stopped in his tenure, just continue the remainder of the term of Office of members which it replaces. The HOUSE of REPRESENTATIVES and President, basing its interpretation on the provisions of article 21 and paragraph (5) of the ACT specifies that the KPK Chairman KPK collective in nature, so that the five members of the leadership of the KPK it meant collectively served one four-year period. In this case, according to the HOUSE of REPRESENTATIVES and President, if any members of the KPK Leader stopped in Office then was replaced by substitute members who just proceed period of the remainder of the term of the Member replaced. The interpretation of the House and the President based on the provisions of article 33 paragraph (1) and paragraph (2) of the ACT in the KPK textual mention replacement KPK Chairman members to replace members who quit in his tenure. The interpretation is questioned by the Applicant, since the interpretation of such results in no details the meaning of Article 34 of the ACT so that the KPK violates the principles of the Constitution, namely, among others, the principle of legal certainty that the fair should be respected, protected and fulfilled, according to the Constitution. According to the Applicant in accordance with article 34 of the ACT members term of replacement KPK is four years, not only served the remainder of the term of the Member replaced. According to the Court, with a difference of interpretation that such raises constitutional must be judged by the Court, namely the interpretation of which is true according to the Constitution in order to respect, protect and fulfil the principle of legal certainty is fair to the public, for the country, organizers for the KPK, as well as for the KPK Leader was elected as a member of the leadership of replacement KPK has stopped. If the Court does not provide assurance against the interpretation of the term of Office of members of the leadership of the replacement KPK then issue replacement KPK Chairman who quit in his tenure will be the debate that continues will appear during the replacement of a member of the leadership of the KPK in the future are thus contrary to the principle of legal certainty guaranteed by a fair Constitution; [3.22] considering that to test the constitutionality of the correct interpretation of the above norms the provisions of article 34 of the Act a quo, the court basing on the General principles contained in the Constitution, namely the principle of legal certainty, the principle of equality and justice, the principle of expediency of 73 of the law, as well as the principle of public interest. Those principles, it is the fundamental values embodied in the Constitution and become the spirit of the existence of a State based on the constitutional system. In addition, those principles are also defined in law No. 10 of 2004 concerning the formation of Legislation (State Gazette of the Republic of Indonesia Number 53 in 2004, an additional Sheet of the Republic of Indonesia Number 4389) as the elaboration of article 22A Constitution, namely in article 6, which outlines the basis of charge material laws that should meet the principle of, among other things: fairness, equality and the rule of law in the position as well as the principle of public order and legal certainty. Likewise the principles defined in article 3 of Act No. 28 of 1999 regarding the Organization of a country that is clean and free of corruption, Collusion and Nepotism (State Gazette of the Republic of Indonesia Number 75 in 1999, an additional Sheet of the Republic of Indonesia Number 3851), the principle of legal certainty, the principle of orderly conduct of the State, the basis of the common interests, principles of openness, the principle of proportionality, the principle of professionalism, and the principle of accountability; [3.22] considering that on the basis of the provisions of article 33 paragraph (2) of the ACT of the election mechanism, the members of the KPK replacement KPK Chairman who quit in term of done the same with the mechanism of the selection and appointment of a member of the leadership who appointed simultaneously at the beginning of the period. This selection process takes a long time and costs are quite high because most do not involve the formation of the selection Committee, the registration process is done in an open and transparent process involving publication in the media, and after the specified name are candidates, the selection process is continued on the announcement to the community to get the next response delivered in the HOUSE of REPRESENTATIVES to do the selection again by PARLIAMENT through the mechanism of the fit and proper test. A rigorous selection process and the long seen the need, given the importance of the post of the leadership of the KPK, especially when associated with the urgency agenda corruption eradication in Indonesia; [3.23] considering that the selection process and selection of the leadership of such replacement KPK when viewed from the principle of fairness in governance that is justice for the community then the appointment of the members of the 74 replacement who occupied the remainder of the term of just one year is something that is felt not just for society, because the State must issue a very large costs as well as the organizer of the State which performs the selection process spent quite long just to select a replacement member who occupied the remainder of the term of Office of one year. According to the Court, the justice society is a source of the highest constitutional values should be the basis of the assessment of the Court of Justice, because the Constitution is nothing other than justice for the constituent that is justice for the people that make up and agree a Constitution. The justice society is becoming very important in upholding constitutional principles to avoid the Organization of countries that is elitist and violates democratic principles embraced by the Constitution in particular participatory democracy. According to the Court, the interpretation as well, causing injustice to a person who elected replacements struggling and spending a lot of effort, time, and cost to pass selection and was elected to the leadership of the KPK's replacement. Substitute members elected who just continue the remainder of the term of the Member replaced got different treatment by members of the leadership are elected simultaneously during the initial period of running a full four-year term, even though the replacement members undergo any process of selection and the same terms, thus violating the principle of equal treatment to each citizen before the law and the Government [vide article 27 paragraph (1) Article 28D, paragraph (1), and article 28D paragraph (3) of the Constitution]; [3.24] considering that according to the Court, if a member of the leadership of the KPK's replacement only occupied the remainder of the term of Office of the members of the leadership that it replaces, it violates the principle of expediency that became a legal destination. Law was born and held for the benefit of extended reach. Selection process a replacement KPK Chairman under article 33 paragraph (2) of the ACT is only CCA occupy the remaining term, issuing the relative costs as great as the selection process for the five-man leadership of the KPK. It really is an unnecessary extravagance and unnatural. According to the Court, if it meant that the leadership of the substitute that was just replaced and completed the remaining term of the leadership that replaced then the replacement mechanism does not have to go through the process of


a selection of 75 long and complex with a huge cost as the five members of the leadership who was appointed at the same time. The leadership of the replacement, in the event that there is a leader who quit in his tenure, just taken from the KPK Leader candidates participated in the previous selection is the next highest, such as intertemporal substitution of members of Parliament or members of DPD that according to Article 217 paragraph (3) of Act No. 27 of 2009 of the MPR, DPR and DPRD (State Gazette Republilk Indonesia in 2009 Number 123, an additional Sheet of the Republic of Indonesia Number 5043) stating , "The term of members of the House replacement intertemporal continue the remainder of the term of a member of Parliament who replaced" and section 286 paragraph (3) which States, "the term of Office of members ELECTED to the intertemporal replacement continued the rest of the term of Office of members of DPD replaces". It, more fulfilling the principle of efficiency, and the principle of reasonableness. Therefore, based on the provisions of article 33 paragraph (2) of the ACT which requires the charging-led CCA replacement is done through the same selection process with the selection process for the five members of the KPK raised simultaneously, according to the Court, the KPK Leader replacement replacement is not equal to intertemporal substitution of members of the House and the DPD. Intertemporal substitution of House members and SENATORS REPRESENTING, not through the selection process for new and already defined in legislation only proceed period the rest of the members that it replaces. The ACT confirms that the KPK Chairman KPK replacement is done through a selection process and not just a substitute leadership determined that proceeding with the remainder of the term of the leadership that it replaces. According to the Court, it shows that the term of leadership of the KPK's replacement could not be interpreted the same as intertemporal substitution for House members and DPD. Thus the term of leadership of the KPK specified in article 34 of the ACT cannot be interpreted other CCA, except for four years, both for the Chairman to be appointed simultaneously since the beginning as well as for the leadership of the replacement. Narrowing the meaning of article 34 of the ACT with the CCA did not impose for the leadership of the KPK substitute to serve for four years, is in breach of the principle of legal certainty guaranteed Constitution; [3.25] considering that in addition, according to the Court, the KPK is independent State institutions who were given special duties and authorities, among others, carry out most functions associated with the power of Justice to 76 investigations, investigation, and prosecution of and supervision over the handling of corruption cases committed by the other State institutions. To achieve the intent and purpose of the formation of the KPK as State agencies specifically eradicate corruption, then in performing tasks and authorities effectively, the KPK is required to work in a professional, independent, and continuous improvement. According to the Court, the maximum CCA will not carry out the duties and authority are professionally and continuously without the continuity of leadership of the KPK. To guarantee the continuity of the tasks of leadership of the KPK, in order that the leadership does not jointly – just start from the beginning again, then replacement of the leadership of the KPK should not be replaced at once. Therefore, it will be more proportional and guarantee the legal certainty of fair and equal treatment before the law in the event of the replacement of the intertemporal among the leadership of the KPK was appointed for a period of four years at a time [vide Article 28D paragraph (1) of the Constitution]; [3.26] considering that although according to section 47 of the ACT the COURT verdict, the COURT in effect since the (prospective), but for the sake of expediency principle which is the basis and objectives of the universal law to specific cases the Court can impose an award are receding (retroactive). It is already being stated in the jurisprudence of the Court ruling Number 110-111-112-113/PUU-VII/2009 dated August 7, 2009 that became the cornerstone of the determination of the members of the legislative period 2009-2014, especially with regard to the determination of the members of Parliament based on the calculation of phase III was originally incorrectly has been fixed by the ELECTION COMMISSION. The reasons underlying the retroactive designation specifically, among others, is the "have" and "hold" the one applying the content of the legislation based on a wrong interpretation of giving rise to legal uncertainty and loss of constitutional and should therefore be discontinued. Termination of legal uncertainty and loss of constitutional outreach must be retroactive since he set up the wrong interpretation, which began to arise of legal uncertainty and loss of constitutional litigation as seen in a quo. Therefore, in order to avoid legal uncertainty in transition as a result of this ruling, associated with the position of the leadership of the KPK's replacement (the newly elected), then this ruling applies to the leadership of the KPK already elected and occupied the chairmanship of KPK now for a term of four years since the elected;

77 [3.27] considering that the consideration based on explanation above, the Court held that Section 34 of the ACT is unconstitutional in KPK conditional, i.e. contrary to the Constitution meant that not all the leadership of the KPK both appointed leadership since the beginning of time as well as for a replacement leader who replaced Chairman who quit on his time in Office is four years and can be re-elected only once for a term of Office; [3.28] considering that based on the entire legal considerations outlined above, the Court held evidence of the petition of the applicant's reasoned according to law; 4. CONCLUSION based on the above facts and legal considerations as outlined above, the Court concluded that: [4.1] the Court is authorized to inspect, judge, and break the petition a quo; [2.6] The applicant has legal position (legal standing) to apply for a quo; [4.3] the postulates of the petition of the Applicant argued the law; Based on the Constitution of the Republic of Indonesia in 1945 and considering Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316) and Act No. 49 of 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, Supplemental Sheet country number 5076); 5. AMAR'S RULING Judge, granted the petition Declared ß applicant to entirely;

78 ß States Article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission (State Gazette of the Republic of Indonesia Number 137 in 2002, an additional Sheet of the Republic of Indonesia Number 4250) contrary to the Constitution of the Republic of Indonesia in 1945 meant that not all the leadership of the criminal offence of corruption eradication Commission both appointed leadership simultaneously as well as the leadership of the successor who was appointed to replace Chairman who quit in his tenure held positions for the last four (4) years , and afterward can be re-elected only once for a term of Office; ß Declared Article 34 Act No. 30 of 2002 about the criminal acts of Corruption eradication Commission (State Gazette of the Republic of Indonesia Number 137 in 2002, an additional Sheet of the Republic of Indonesia Number 4250) do not have the force of law binds all not meant that the leadership of the criminal offence of corruption eradication Commission both appointed leadership simultaneously as well as the leadership of the successor who was appointed to replace Chairman who quit during the jabatanya hold office for four (4) years , and afterward can be re-elected only once for a term of Office; ß ordered the loading of this ruling in the news of the Republic of Indonesia as it should be; The case was decided in the meeting of the Consultative Constitutional Judge by nine Judges on Thursday the date a sixteen month of June of the year two thousand eleven, i.e. Moh. Mahfud MD, as the Chair of the sitting member, Achmad Sodiki, m. N Deputy Maria Farida Indrati, Mochtar, Hamdan Zoelva, Ahmad Fadlil Sumadi, Anwar Harjono, and Usman, Muhammad Alim respectively as members, and is spoken in the plenary session of the Constitutional Court are open to the public on Monday the twenty last June two thousand eleven years by nine Judge Constitution, namely the Moh. Mahfud MD, as the Chair of the sitting member, Achmad Sodiki, m. N Deputy Maria Farida Indrati, Mochtar, Hamdan Zoelva, Ahmad Fadlil Sumadi, Anwar Harjono, and Usman, Muhammad Alim respectively as members, accompanied by Hani Adhani 79 as a substitute Clerk, and attended by the Applicant or his authority, Government or representing, without attended Representatives or representing. Chairman, ttd. MOH. Mahfud Md. Members, ttd. TD Achmad Sodiki ttd. M. N Deputy Mochtar ttd. Maria Farida Indrati ttd. Hamdan Zoelva ttd. Ahmad Fadlil Sumadi ttd. Usman Anwar ttd. Harjono ttd. Muhammad Alim 6. A DIFFERENT OPINION (DISSENTING OPINION) Article 34 of the ACT against the KPK, which States "the leadership of the corruption eradication Commission hold office for four (4) years and can be re-elected only once for a term of Office." Constitutional judge m. N Deputy filed a dissenting opinion Mochtar as follows: i. On the position of the law (legal standing) the Applicant that the article a quo is not at all related to the constitutional rights of the applicant. If any such article harming Indonesia citizens constitutional rights, then the loss does not have to do with the loss of constitutional rights of the Applicant as postulated;


80 the Applicant does not meet the qualifications stipulated in article 51 paragraph (1) of the ACT the COURT because in application testing laws Undng a quo of the Applicant is not able to explain and prove: 1. Credentials as the applicant in the application for a quo; 2. The rights and/or authority konstitusionalnya deemed detrimental to the applicant with the enactment of the legislation a quo; Moreover, if the applicant's constitutional losses measured by parameters Makamah verdict Number 006/PUU-III/2005 and no. 11/PUU-V/2007, which must meet the size as follows: 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 the constitutional losses as postulated would not or no longer occur; That if they the applicant as an individual citizen of Indonesia and legal entities considered impaired with the introduction of Article 34 of the ACT does not harm Marchesa is both specific and actual or potential whether Sha-according to the reasoning reasonably sure will happen, there is no causal relationship (causal verband) between losses that postulated by the Applicant with the introduction of Article 34 a quo which petitioned testing. Moreover, there is no guarantee that with dikabulkannya petition the Petitioner, constitutional, as postulated harm will not or no longer occur. Although the Applicant argued that as taxpayers (tax payer) and concern with the public interest and the eradication of corruption, there is no causal relationship a constitutional disadvantage applicants with the enactment of Section 34 of the ACT 81 KPK and also there are no losses are specific (Special) and actual or potential according to the reasoning reasonably certain will happen. Therefore, the right to apply Article 34 of the ACT against the KPK was Chairman of KPK currently feel right konstitusionalnya that is specific and actual potentially suffered losses with the enactment of Section 34 of the ACT a quo. Thus, I argue that the Applicant has no legal position (legal standing) to apply for a quo. II. Principal Plea In LAW that the KPK is born in the situation the nation Indonesia experienced a "State of emergency" law enforcement, especially in the criminal offence of corruption, rising crime corruption is not offset by the increased performance of the law enforcement officers of police and prosecutors that is. Therefore, the formation of the corruption eradication Commission which has the authority to conduct the coordination, supervision, conduct an investigation, and prosecution of the crime of corruption, even in some cases can take over the matter of corruption is being dealt with by the law enforcement agencies of both, if it has sufficient reasons as determined by article 8, article 9, article 10 of the ACT and the KPK. The real debate over the pros and cons of term of Office for the members of the leadership of replacement KPK, commenced a year ago when the selection Committee a substitute candidate recruitment Chairman KPK caused one of the KPK leader being accused for committing the crime of evil [vide Article 32 paragraph (1) of the ACT number 3 KPK]. Therefore, the Applicant was questioned by the term of the members of the leadership of replacement KPK is not a candidate for the leadership of the KPK, compare the provisions of article 29 juncto Article 9 paragraph (1) letter a, and article 33 juncto Article 29 ACT of KPK. To that end, the interpretation of Article 34 of the ACT against a quo must be laid with a proportionate approach to the interpretation of the law by using the universally acknowledged historical, i.e., systematic and teleologis (holistically); That is based on a systematic interpretation of the LAW, particularly regarding the KPK reshuffle KPK, must be traced from the provisions of article 30 of the ACT leadership selection procedures about MARCHESA MARCHESA, not members of the KPK leader 82 replacement, i.e., by first forming the selection Committee, select candidates twice the number of the position is required, and the HOUSE of REPRESENTATIVES selects the five candidates needed. In a systematic and logical, then a candidate for the leadership of the KPK should be proposed by the Government is 10 (ten) people the candidate selection result of selection committees the leadership of the KPK. It is based upon the historical interpretation of logical, rational considerations, as much as the candidate for the leadership of the KPK is needed for a term of 4 years since it refers to the provisions of article 21 and paragraph (1) letter a UU KPK's "leadership of the corruption eradication Commission consists of 5 members of the corruption eradication Commission". That the provision of term of leadership of the KPK in article 34 of the ACT i.e. CCA 4 years, are reserved for the selection of prospective leadership KPK normally or usually, according to article 9 paragraph (1) letter a juncto Article 29 members of the House and not a substitute for leadership of the KPK as specified in the provisions of article 33 of the ACT, only CCA procedures that must under article 29, article 30, article 31 of the ACT and the KPK , which are reserved for the selection of prospective leadership of the KPK has run out his term and not to substitute candidates because the void leadership of KPK. That based on the provisions of article 33 of the ACT, the KPK in terms of vacancy, the President submits candidates for members of the successor to the House and are required by law to propose multiple of the number of vacancies, and the House leadership of the KPK is obligated to choose the number of prospective replacement KPK Chairman required fields (such as the selection process a candidate the leadership of replacement KPK). Thus, based on a systematic interpretation of logical, then the term of replacement KPK Chairman ended simultaneously with the expiry of the term of leadership of the KPK were selected previously. That if the interpretation of Article 34 of the ACT follows the KPK interpretation of court ruling stating "contrary to the Constitution of the Republic of Indonesia in 1945 meant that not all the leadership of the criminal offence of corruption eradication Commission both appointed leadership simultaneously as well as the leadership of the successor who was appointed to replace Chairman who quit in his tenure held positions for the last four (4) years, and thereafter can be re-elected only once for a term of" Instead, it will give rise to legal uncertainty, conflict is the norm and the chaos in the system of recruitment of prospective leadership of the KPK in the foreseeable future, since corresponds to Article 21 subsection (1) letter a of ACT 83 KPK, head of KPK consisting of from 5 (five) members of the corruption eradication Commission and the President of the Court ruling basing on a quo, then the President will submit only 8 (eight) the name of the candidate for the leadership of the KPK While the HOUSE is obligated to choose the five nominees in accordance with the provisions of the KPK Chairman article 30 paragraph 10 the KPK LAW States the PARLIAMENT is obliged to select and assign 5 candidates needed. Thus, in my opinion, in the future, there will be the leadership of the KPK amounted to 6 people, except consistently against President Issued the number 129/P in 2010 dated December 10, 2010, which is in the Issued state that the term of Office of the current replacement KPK Leader was continuing the remainder of the term of Office 2007-2011 or fixed fielding Presidential leadership of the KPK, twice the number of required , IE 10 people (vide article 30 paragraph 9 of ACT KPK). Based on the above description of the whole, in my opinion, the test application of article 34 of the ACT, was not a question of the KPK constitutionality of norms which are general or abstract (general and abstract norms) but rather a problem of law enforcement field or is the question of norms of concrete (concrete norms), that it was a legal policy of lawmakers, considering charging President and Member State agencies, each different and has its own characteristics Therefore, should the applicant's application is already rejected by the Court. CLERK of the surrogate, ttd. Hani Adhani

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