70

[3.18] A draw that before the Court answered the issue,

there is a legal fact that the Indonesian House of Representatives and the President determine the term

the member who replaced the KPK Chairman who quit in his term

is to continue only the remainder of the term of the chairman of the KPK.

In determining the term of the successor, the DPR RI

based on the interpretation of Article 21 of the paragraph (5) the KPK Act determined that

The KPK leadership is working collectively collegial, so the provisions of Article 34 of the Act

KPK It is defined that the Head of the KPK is stopping simultaneously. With

as such, the replacement Leader who replaces the leadership member

quits in his term only acts as a substitute for intertime,

as it only continues the term of the replaced member of the leadership

On the other hand, the petitioners refer to Article 34 of the KPK Law stating,

" The leadership of the Corruption Eradication Commission holds four (four)

years and can be re-elected only for once. office ", which

the four-year term applicants for the leadership of the KPK, is a

term that applies either to the Chairman who is appointed

simultaneously from the start and the Chairman who replaces the Leadership

quit at the time of his term;

[3.19] Balanced That According to the Court, the House and the President can just

do the interpretation of a provision of the Act in order

implementation of the a quo Act. However, the Court is in charge

assessing the constitutionality of the interpretation of an Act norm that

is exercised by both the DPR and the President, if that interpretation

results in its threat of respect, protection, and protection of the Constitution of the Constitution. and the fulfillment of the rights-

the constitutional rights of the citizens as well as in order to guarantee it

the mandate and the norms of the constitution correctly. It does not mean that

The court has come out of its authority examining the conflict norms

The Act against the Constitution of 1945 as it is textually stated

in the Act. Under the provisions of Article 1 of the paragraph (2) of the Constitution of 1945 which

states, "Sovereignty is in the hands of the people and exercised according to

Basic Law", contained the meaning that hosting

the state government by The organs of the state must be based on the constitution.

That is the basis that the state of Indonesia is a country of the system

71

a constitutional government, which in its implementation is set up to the Court

Constitution to escort and guarantee that the constitutional system

runs. Therefore, in exercising his duties and responsibilities

as a constitutional judicial institution that is escorting the constitutional norm in order to

correctly walk in order to conform to the spirit contained in

the constitution, The Court next to reads and understands the text of the constitution, as well

is obligated to dig and find the values and philosophical fundamentals that

contained in the constitution to decide any issues that are confronted

in The Court. In this case, if the Court finds the interpretation of the norm

The Act of contradictory, deviating and/or incompatible with

the constitution and spirit of the constitution, then based on function, duty, and

its authority to escort constitution, the Court is authorized to assess

the constitutionality of the interpretation of an Act norm. Accordingly,

in assessing the applicant a quo, the Court should also assess

the interpretation of the provisions of the a quo Act at the implementation rate for

guarantees the hosting of a country based on the system The constitutional constitutional

by the Constitution of 1945;

[3.20] A draw that the Court will assess the constitutionality

interpretation of the provisions of Article 34 of the KPK Act against the norms contained

in the 1945 Constitution. The applicant postulate that the designation of the term

member of the KPK Replacement Leader who only continued the remainder of the term

members of the KPK leadership who quit before reaching the four-year period

is at odds with the the principle of fair legal certainty as

determined Article 28D paragraph (1) of the 1945 Constitution. According to the applicant's term

members of the replacement KPK leadership not only completed the remainder of the term

members were replaced, but occupied a full term of four

years.

According to the Court, the provisions of Article 34 of the KPK Act itself are very clear and

firmly that the tenure of the KPK leadership is four years, and that it is not

raises the matter of constitutionality. However, the provisions of Article 34 of the Act

The KPK is a constitutional issue when the DPR and the President

interpret that the provisions of Article 34 of the KPK Act do not apply to

all members of the KPK Leadership and only apply for the leadership of the KPK

72

was appointed simultaneously five people from the beginning of the period, while for

the leadership that replaced the member of the incumbent who quit in time

in office, only continued the remainder of the member's term.

DPR and President, basing its interpretation on the provisions of Article 21 paragraph (5)

The KPK Law that determines that the KPK leadership is collective, so that the five

members of the KPK leadership are collectively held in office. one period four <ate

Indonesia Number 4250) contrary to the Basic Law

The Republic of Indonesia in 1945 as long as it is not defined that

The leadership of the Corruption Eradication Commission is either the leadership of

which is appointed Both the following and the replacement leaders

were appointed to replace the stop leadership. in

the office holds the post for 4 (four) years, and thereafter

can be re-elected only for once in office;

ß Declared Article 34 of the Law Number 30 Year 2002 on

Commission of Eradication Criminal Corruption (Republican Gazette

Indonesia Year 2002 Number 137, Additional Republican Gazette

Indonesia Number 4250) has no binding legal force

as long as it is not defined that the chairman of the Commission Follow-up.

The corruption of the corruption of both the leadership of the leadership. nor

substitute leaders who are appointed to replace the leadership

quits in his term holding office for 4 (four)

years, and thereafter can be reelected only for once

office;

SS Ordering the loading of this termination in the News of the Republic of the Republic

Indonesia as it should be;

So it was decided in a Meeting of Judges by

nine Constitution Judges on Thursday of the sixteenth month June of the year

two thousand eleven, that is Moh. Mahfud MD., as the Chairman of the Members,

Achmad Sodiki, M. Akil Mochtar, Maria Farida Indrati, Hamdan Zoelva, Ahmad

Fadlil Sumadi, Anwar Usman, Harjono, and Muhammad Alim respectively

as Members, and spoken in The Plenary Session of the Constitutional Court

open to the public on Monday the twenty month of June of the two thousand

eleven by the nine Justices of the Constitution, namely the Moh. Mahfud MD., as Chairman

arrested Member, Achmad Sodiki, M. Akil Mochtar, Maria Farida Indrati,

Hamdan Zoelva, Ahmad Fadlil Sumadi, Anwar Usman, Harjono, and Muhammad

Alim each as Member, with accompanied by Hani Adhani

79

as the Panitera Replace, and attended by the Applicant,

The Government or that represents, without the presence of the House of Representatives or who

represents.

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

MEMBERS,

ttd. td

Achmad Sodiki

ttd.

M. Akil Mochtar

ttd.

Maria Farida Indrati

ttd.

Hamdan Zoelva

ttd.

Ahmad Fadlil Sumadi

ttd.

Anwar Usman

ttd.

Harjono

ttd.

Muhammad Alim

6. DIFFERENT OPINIONS (DISSENTING OPINION)

Against Article 34 of the KPK Law, which states " Commission leadership

Corruption Eradication holds up to 4 (four) years and can

reelected only for once. office. " Constitutional Judge M. Akil

Mochtarsubmitted dissenting opinion as follows:

I. Regarding legal status (legal standing) the applicant

That the article a quo is absolutely not related to the right

the applicant ' s constitutional. If any such article harms the right

the constitutional rights of the Indonesian national, then the loss is meant to be no

in relation to the constitutional rights loss of the applicant as

which has been postured;

80

That the applicant does not meet the qualifications as set

in Section 51 of the paragraph (1) MK Act due to the Undng Test

Invite a quo the applicant is not able to explain and prove:

1. I qualify as the applicant in the a quo;

2. The rights and/or its constitutional authority is deemed detriable

The applicant with the enactment of the a quo Act;

Furthermore if the constitutional loss of the applicant is measured by the parameter

the Makamah verdict Number 006 /PUU-III/2005 and No. 11 /PUU-V/2007, which

must meet the following sizes:

a. the rights and/or constitutional authority of the applicant granted

by UUD 1945;

b. The rights and/or constitutional authority by the applicant are considered

aggrieved by the enactment of the testing Act;

c. The constitutional loss must be specific (special) and actual

or At least some of the potential, which according to reasonable reasoning could be

is confirmed to be;

d. (causal verband) link between the intended loss

and the expiring Act (s) of the testing;

e. It is possible that with a request granted,

Constitutional losses such as those that are postured will not or are no longer

occurring;

That if the applicant is a person of the country

Indonesia and the legal entity considers aggrieved by the enactment of Article

34 KPK laws, the loss is not being specific and actual or not-

The potential for which a reasonable reasoning is confirmed will occur,

no causal link (causal verband) between losses that

postured by the applicant with the enactment of Article 34 a quo

is mohoned for testing. Furthermore, there is no guarantee that with

granted the applicant's request, the constitutional loss

as the postured will not or no longer occur. Although the

applicant postures as a taxpayer (tax payer) and concern with

the public interest and the eradication of corruption, there is no causal link

due to the constitutional loss of the applicant with the entry of Article 34 of the Law

81

KPK and there are also no specific (special) and actual

or potential losses according to reasonable reasoning that can be certain to occur. By

therefore, the right to apply to Section 34 of the KPK Act

is the current KPK Chairman who feels the constitutional right that

specifically and actual potentially losses by force.

Article 34 of the a quo Act.

Thus, I argued that the petitioners were not

having legal status (legal standing) to apply for

a quo.

II. In the Point of Request

That the KPK Act was born in the situation of the Indonesians experiencing

"emergency states" legal affirmation, especially in criminal corruption,

rising crime corruption is not offset by increased performance

the law enforcement apparatus is policing and the prosecutor. Accordingly,

the creation of a Corruption Eradication Commission which has the authority to

co-ordinate, supervision, conduct investigation, and prosecution

A criminal corruption, even in certain things may take Matter

The corruption that is being handled by both law enforcement agencies, if

has sufficient reasons as defined as Section 8,

Article 9, and Article 10 of the KPK Act. In fact,umber 49 Year 2009 on Power Of Justice (Sheet Country

Republic Of Indonesia In 2009 Number 157, Additional State Sheet Number

5076);

5. AMAR RULING

Trial,

ß Declared a grant of the Applicant for the whole;

78

ß Declared Article 34 of the Law No. 30 of 2002 on

Commission of Eradication Of Corruption (sheet Of State Of The Republic

Indonesia In 2002 Number 137, Additional Gazette Of The Republic Of St>Article 29 juncto Section 21 of the paragraph (1) letter a, and Article 33 juncto Article 29 Law

KPK. For that, the interpretation of Article 34 of the a quo should be put in place with

proportional approach using a recognized interpretation of the law

universally that is historical, systematic, and teleological (holistically);

That based on systematic interpretations, the KPK Act in particular about

the change of the KPK leadership, must be traced to the provisions of Article 30 of the KPK Act

on the KPK leadership selection procedure instead of a prospective member of the replacement

82

KPK leadership, that is to first form the selection committee,

selectest candidates twice the amount of office needed, and the House votes for five

candidates are needed. Systematically and logically, then the candidate for the KPK leadership

to be submitted by the Government is 10 (ten) people of results

selections from the KPK leadership selection committee. This is based on the historical interpretation

logical, rational consideration, as much as the KPK leadership needed

for a 4-year term because it refers to the provisions of Article 21 of the paragraph (1)

letter a law of the KPK i.e. " Commission leader Corruption Eradication consists of 5

members of the Corruption Eradication Commission ".

That the terms of the KPK leadership term in Article 34 of the KPK Act

that is 4 years, are reserved for the normal selection of the KPK leadership normally

or ordinary, in accordance with Article 21 of the paragraph (1) letter a juncto of Article 29 and not the candidate

members of the KPK leadership substitutes as defined in the provisions

Article 33 of the KPK Act, only procedures should be under Article 29, Section

30, and Section 31 of the KPK Act, which is reserved for the selection of KPK leadership

which has expired and is not for a replacement candidate because

vacancy led by KPK . That under the provisions of Article 33 of the KPK Act,

in the event of a vacancy, the President submitted a candidate for a replacement

to the DPR and required according to the Act proposing a multiple

amount of the vacancy of the KPK leadership, and The DPR is required to select the number of candidates

the mandatory replacement of the KPK leadership (such as the candidate selection process

replacement of the KPK then). As such, based on a systematic systematic interpretation,

then the KPK Leader's successor term ends together with

the end of the previous elected KPK leadership term.

That if the interpretation of Article 34 of the KPK Act follows interpretation of the Court ' s ruling

stating " contrary to the State Basic Law

The Republic of Indonesia in 1945 as long as it is not understood that the Chairman

The Commission for Eradication Corruption of the Corruption Leadership was appointed

simultaneously nor is the replacement leader raised for

replacing the leader who quit in his holding term

the post for 4 (four) years, and afterwards it can be reelected only

for once office ", instead that it will cause uncertainty

laws, conflicts of norms and disarray in the system of candidate candidates

KPK in the coming days, as in accordance with Article 21 of the paragraph (1) letter a

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The KPK Act, the KPK leadership consists of 5 (five) members of the Eradication Commission

Corruption and if the President bases it on the ruling a quo,

then the President will only file 8 (eight) candidate names The KPK leadership,

while the DPR is required to vote for 5 (five) KPK candidates in accordance with

provisions of Article 30 paragraph 10 of the KPK Law which declared the DPR RI mandatory

elect and set the 5 candidates needed. As such,

in my opinion, in the foreseeable future, there will be a KPK Command

number of 6 people, except the President is consistent against Keppres Number

129 /P of 2010 dated December 10, 2010, which in Keppres such

states that the current Chief KPK leadership term is

continuing the remainder of the 2007-2011 term or the permanent President

filing for the candidate for the KPK, twice the amount required, that is 10

persons (vide Section 30 paragraph 9 of the KPK Act).

Based on the entire description above, in my opinion,

the application for testing Section 34 of the KPK Act is not a matter of

constitutionality of a common or abstract norm (general and abstract

norms) but rather the issue of execution of the field or is

the problem of concrete norms (concrete norms), which is legal policy

of the Act makers, given the charge of the leadership and member

state agencies, each different and have characteristic

in its own, therefore already the wish of the applicant

is rejected by the Court.

PANITERA REPLACEMENT,

ttd.

Hani Adhani