Advanced Search

Test The Material Constitutional Court Number 75/puu-Ix/2011 2011

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 75/PUU-IX/2011 Tahun 2011

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
logy that responsive to market and industrial needs by keeping existing system integrity ";

increased synergy and integration of network infrastructure towards next generation

network; increased knowledge and community understanding of

the potential for telematics utilization as well as utilization and development

technology-based applications of information and communication; industrial development

within the country; and the content industry as an effort creation of added value of

information.

That the applicant as the Chairperson of the NGO's Consumer Society

Telecommunications Indonesia feels aggrieved over the existence of " Attachment

Act No. 17 of 2007 on the Development Plan

Long Term 2005-2025 in Appendix D on "Sarana and

Prasarana which Adai and Forward" at 31 pages 55 and pages

56 on the subject matter reads, " the application of the concept of technology

5

neutral responsiveness to market and industrial needs with a fixed

keeping of the existing system's integrity ".

6. That in "Annex Act No. 17 of 2007 on

The Long Term Development Plan of 2005-2025 in the Attachment

D on" Sarana and Prasarana which Adai And Forwards " at the number 31

page 55 and page 56 which on the subject matter reads

"application of neutral technology concepts responsive to market needs

and industry by keeping existing system integrity" does not exist

definition of the sentence in Post-Articles of Law Number 17

Year 2007 on the Term Development Plan Length 2005-

2025 (2007 State Sheet Number 33) set to date 5

February 2007 as well as in explanation of Law Number 17

Year 2007 on the Long Term Development Plan of 2005-

2025 (State Sheet Number 4700); that in the Act

Number 36 of 1999 on Telecommunication in Section 32 paragraph paragraph (1)

and paragraph (2), Article 33 of the paragraph (1), paragraph (2), paragraph (3), and paragraph (4), Section 34 of the paragraph

(1), verse (2), and paragraph (4) that is the lex specialist Act

derogate generalis in the field of telecommunications governing the existence of requirements

and/or restrictions on the use of technology.

7. That with the "Attachment Act No. 17 Year 2007

on the Long Term Development Plan 2005-2025 in

Attachment D on" Sarana and Prasarana which Adai and Forward " at

the 31-page figure 55 and the page 56 which on the subject matter

reads "application of the concept of neutral technology responsive to

the needs of the market and industry by keeping the system integrity

there has been", has led to an interpretation that different from the government side

with LSM-KTI in the application and the guideline in society

Telecommunication users and if this is left to be potentially

large against the public in particular the country's loss in the Acceptance

The State is Not Tax (PNBP); whereas in Act Number 20

The year 1997 on the State Reception Not the Tax Article 9 clause (1) and

paragraph (2) that is the lex specialist derogate generalis

in the

field of PNBP set the number of state receipts instead of the owed tax

defined by way: specified by the Government Instancy or calculated

6

alone by Wajib Pay. Remember the country's acceptance system

not tax has its own characteristics and patterns and in this case it already exists

setting the types and tariffs on types that apply to the PNBP Department

Communications and Informatics, then The application "application of the technology concept

is responsive to market and industrial needs with fixed

keeping the existing system" will be potentially great against

the public as well as the country's losses in the State acceptance is not tax;

8. That in "Annex Act No. 17 of 2007 on

The Long Term Development Plan of 2005-2025 in the Attachment

D on" Sarana and Prasarana that Adai and Forward " at the number 31

page 55 and pages 56 which on the subject matter reads

"application of the concept of neutral technology responsive to market needs

and Industry by keeping the existing system integrity", not

alluded to at all in passage of Law Number 17

Year 2007 on the Term Development Plan Length 2005-

2025 (2007 State Sheet Number 33) set to date 5

February 2007 as well as in Explanation of Law Number 17

Year 2007 on the Long Term Development Plan of 2005-

2025 (State Sheet Number 4700); whereas in the Act

Number 36 of 1999 on Telecommunication in Section 7 of the paragraph (2) and

explanation that is the lex specialist derogate

generalist in the field of telecommunications technology already discussed that in

hosting Telecommunications, aware of things as follows

anticipates the development of global technologies and demands; so all

technology must be anticipated and not to be selected free and

to be used free-free in the legal area of the Republic of Indonesia.

9. That in "Annex Act No. 17 of 2007 on

The Long Term Development Plan of 2005-2025 in the Attachment

D on" Sarana and Prasarana that Adai and Forward " at the number 31

page 55 and pages 56 which on the subject matter reads

"application of the concept of neutral technology responsive to market needs

and industry by keeping the existing system integrity", not

mentioned at all in passage of Law Number 17

Year 2007 on the Term Development Plan Length Of 2005-

7

2025 (2007 State Sheet Number 33) set to date 5

February 2007 as well as in explanation of Law Number 17

2007 on the Long Term Development Plan 2005-

2025 (State Sheet Number 4700); whereas in the Act

No. 8 of 1998 on Consumer Protection that is

Lex specialis derogate generalis in the field of technology

consumer protection is already weighing about " technology content that

can improve well-being the community a lot and at once

get certainty over the goods and/or services acquired and

trade without resulting in consumer losses "; so all

technology must be anticipated and not to be selected Free-free and

for free use in the legal region of the Republic of Indonesia.

III. PETITUM Based on the items described above, the applicant with this

implores the Assembly of Justice of the Constitutional Court as a bodyguard and

the supreme interpreter of the constitution, please check, prosecute, and

<55 and the page 56 which reads, " Post construction and

telematics directed to drive the creation of the society based

information (knowledge-based society) through the creation of the competition foundation

long term of the event post and telematics in the Neighborhood

multioperator; antisipasian implications of telecommunication convergence,

information technology, and broadcasting, both regarding institutional and

regulations including those related to security issues, privacy, privacy,

and information integrity; application rights intellectual property; improvement

the legality that could eventually result in market and industrial convergence;

optimizing of construction and utilization of post and telematics infrastructure

and nontelecom infrastructure in the hosting telematics;

" application of the concept of neutral technop>severing the application with an amused verdict as follows:

IV. IN PROVISI 1. Ordered Cq Government Minister of State Planning

National Development/Development Planning Board

National (Bappenas) and Ministry of Communications and Informatics

making adjustments resulting from the changes to the changes to the Invite-

Invite Number 17 Year 2007, in particular in Annex Act

Number 17 of 2007 on the Long Term Development Plan

Year 2005-2025 in the Attachment D on " Sarana and Prasarana

Tads and forwards " at 31 pages 55 and page 56,

in particular on the phrase "The application of the concept of responsive neutral technology

to market and industrial needs by keeping the integrity

system already exists".

IN THE SUBJECT MATTER 1. Accept and grant the applicant's request entirely.

2. Corroborates the provision ruling that the applicant represents

Attachment Act No. 17 of 2007 on Plan

Long Term Development of 2005-2025 in Appendix D

8

on "Sarana and Prasarana that Adai and Forward" at the number 31

page 55 and page 56, in particular the phrase " concept application

responsive neutral technology to market and industrial needs

by keeping the existing system integrity ", contradictory

with Article 18A paragraph (2), Article 18B paragraph (1) and paragraph (2), Article 33 of the paragraph

(1), paragraph (2), and paragraph (3) of the 1945 Constitution.

3. States Act No. 17 of 2007 on

The Long Term Development Plan 2005-2025 in

Attachment D on "Sarana and Prasarana which Adai and Forward" at

number 31 page 55 and page 56, particularly in the phrase "" application

the concept of neutral technology that is responsive to market needs and

industry by keeping the existing system integrity ", not

has a legal force binding on the Act Number

17 Years 2007 on the Long Term Development Plan of the Year

2005-2025.

4. States Act No. 17 of 2007 on

The Long Term Development Plan 2005-2025 in

Attachment D on "Sarana and Prasarana which Adai and Forward" at

number 31 page 55 and page 56, especially on the phrase "application

the concept of neutral technology that is responsive to market needs and

the industry by keeping the existing system integrity",

contrary to the articles as well as the explanation of the Act

Number 17 of the Year of 2007 on the Long Term Development Plan

Year 2005-2025.

5. Stated Appendix No. 17 of 2007 on

The 2005-2025 Long Term Development Plan

Attachment D on "Sarana and Prasarana which Adai and Forward" at

the 31-page figure of 55 and page 56, especially on the application phrase

the concept of neutral technology that is responsive to market needs and

industry by keeping the existing system integrity ", not

has a legal force binding with all consequences The law.

6. Ordering the loading of this verdict in Country News as

should be.

9

OR

If the Assembly of Justice of the Court argues another, please the judgment be fair-

he is fair (ex aequo et bono).

[2.2] weighed that in order to prove its control, the applicant has

submitted a letter/writing tool given the proofs of the P-1 proof up to

The evidence of P-6 as follows:

1. Evidence P-1: Photocopy of the Basic Budget Society Swadaya Society

Consumer Telecommunications Indonesia;

2. Evidence P-2: Photocopy of the State Basic Law of the Republic of Indonesia

Year 1945;

3. Evidence P-3: Photocopy Act No. 17 of 2007

on the Long Term Development Plan of 2005-

2025;

4. Evidence P-4: Photocopy Act No. 17 of 2007 on

The Long Term Development Plan of 2005-2025;

5. Evidence P-5: Photocopy Act No. 36 of 1999 on

Telecommunications;

6. Evidence P-6: Photocopy Act No. 20 of 1997 on

The Acceptance of State Not Tax (PNBP);

[2.3] weighed that to shorten the description in this ruling,

everything that happened in the trial was quite appointed in news of the event

the trial, which is one unbreakable unity with

this verdict;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the legal issue of the applicant ' s plea

is to test Attachment D on "Sarana and Prasarana Adai and

Forward" at 31 page 55 and page 56, Act Number 17

Year 2007 on the Long Term Development Plan 2005-2025

(New Republic of Indonesia Gazette 2007 number 33, additional

sheet of state of the Republic of Indonesia Number 4700) was subsequently called the Act

10

17/2007 against the Basic Law of the Republic of Indonesia in 1945

(subsequently called UUD 1945);

[3.2] weighed that before considering the subject's subject,

The Constitutional Court (later called the Court) in advance would

consider:

a. The Court's authority to prosecute a quo; and

b. Legal standing (legal standing) applicant;

Constitutional authority

[3.3] weighing that under Article 24C paragraph (1) Constitution of 1945, Article 10

paragraph (1) letter a Law Number 24 of 2003 on the Court

The Constitution as amended by Act Number 8 of the Year

2011 on Changes to the Law No. 24 Year 2003 concerning

Constitutional Court (State Sheet of the Republic of Indonesia Year 2011 Number

70, Additional leaf of the Republic of Indonesia Number 5226, next

called Act MK), Article 29 verse (1) letter a Law Number 48 Year 2009

on the Power of Justice (State Sheet of the Republic of Indonesia of the Year

2009 number 157, Additional Gazette of the Republic of Indonesia Number 5076),

one of the Court's authority is to prosecute at first level and

the last of its verdict is final to test the Act against

Constitution of 1945;

[3.4] Draw that the applicant's plea is to test

the constitutionality of the Attachments D about "Sarana and the Adequate Prasarana and

Forward" at 31 page 55 and page 56 Act 17/2007 against the Constitution

1945, therefore the Court of Justice to prosecute a quo;

The Occupation of Law (Legal Standing) The applicant

[3.5] A draw that under Article 51 of the paragraph (1) Act MK, which can

apply for testing the Act against the Constitution of 1945 is

those who consider the rights and/or its constitutional authority that

granted by the 1945 Constitution is harmed by the enactment of an Act, -

11

a. Individual citizens of Indonesia (including groups of people

have common interests);

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945 must explain and prove first:

a. The applicant's position is in accordance with Article 51 of the paragraph (1) of the MK Act;

b. the absence of the constitutional rights and/or constitutional authority provided by

of the 1945 Constitution resulting from the enactment of the Act

is mohoned testing;

[3.6] It is also