Advanced Search

Test The Material Constitutional Court Number 40/puu-Ix/2011 2011

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 40/PUU-IX/2011 Tahun 2011

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

1

F

RULING NUMBER 40 /PUU-IX/2011

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] That prosecuting constitutional matters on the the first and last level,

dropped the verdict in the Act of Testing Act

Number 6 of the Year 2011 on the Immigration of the Basic Law

The Republic of Indonesia of Indonesia in 1945, submitted by:

[1.2] 1. Name: Dr. Rico Pandeirot, S.H., LL.M

Place/date born: Tondano, 8 May 1971

Work: Advocates

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

2. Name: Afrian Bondjol, S.H., LL.M Place/date born: Jakarta, April 19, 1979

Work: Advocates

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

3. Name: Yulius Irawansyah, S.H., M. H Place/date born: South Lampung, 10 July 1971

Work: Advocates

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

4. Name: Slamet Yuono, S.H., M. H Place/date born: Malang, July 9, 1979

Work: Advocates

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

2

5. Name: Rachmawati Place/date born: Jakarta, 17 January 1979

Work: Advocates

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

6. Name: Gusti Made Kartika, S. H Place/date born: Selong, March 24, 1970

Work: Advocacy

Address: Majapahit Road Number 18-20 Komplek

Majapahit Permai Block 122-123, Central Jakarta

Next is called as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Hearing the Applicant;

Hearing and reading the Government's written caption;

Hearing and reading the applicant 's expert;

hearing and reading the Government expert' s caption;

Checking The evidence is written by the petitioner;

Read the Applicant's written conclusion and Government.

2. SITTING LAWSUIT

[2.1] A draw that the petitioners have applied for

with a petition letter dated June 10, 2011, which is accepted in

The Constitution of the Constitutional Court (hereafter called Kepaniteraan) The Constitutional Court

Constitution) on Wednesday 22 June 2011 based on the deed of receipt of the file

Request Number 239 /PAN.MK/ 2011 and was registered on Monday 27

June 2011 with the Noted 40 /PUU-IX/2011 Number 40 /PUU-IX/2011 receive in

The Court of Justice on Friday the 29th July 2011 that on

just as follows:

I. "Constitution of the Constitutional Court" That Indonesia has made a new history in shaping the modern system

. It is marked by the birth of various institutions

3

the state, one of which is the Constitutional Court. As one of the perpetrators

judiciary power, the Constitutional Court is expected to uphold

the constitution and the principle of the state of law in accordance with the authority granted.

The Constitutional Court is also required to provide equilibrium (check and

balances) between state agencies and resolving constitutional disputes in order to

the basic laws contained in the Basic Law of 1945 (subsequently

called the 1945 Constitution) remain awake.

That in accordance with the task and authority as set forth in

Article 24 of the letter c paragraph (1) of the Constitution of 1945, the Constitutional Court has 4 (four)

authority, that is:

1. testing legislation against the Basic Act;

2. Severing the jurisdiction of the state agency's authority

is granted by the Basic Law;

3. break the dissolution of the political party; and

4. breaking the dispute about the outcome of the general election.

That the authority granted to the Constitutional Court then

corroborate with Article 10 of the paragraph (1) Act No. 24 of 2003

about the Constitutional Court (selanjuntya called Act MK) stated,

" The Constitutional Court is authorized to judge on the first and last level

whose verdict is final for:

a. testing legislation against the Republican Basic Law

Indonesia Tahun 1945;

b. Cut off a dispute over the authority of the state institution

provided by the State Basic Law of the Republic of Indonesia Year

1945;

c. severing the dissolution of the political party; and

d. breaking the dispute about the outcome of the general election ".

That other than those provisions above, regarding the authority of the Court

The Constitution is also set in Law Number 48 of the Year 2009 concerning

The Justice Powers in particular Article 29 paragraph (1) states that

The following:

" (1) The Constitutional Court is authorized to judge at the first and last level

the verdict is final for:

4

a. testing legislation against the Country Basic Law

The Republic of Indonesia in 1945;

b. Cut off a dispute over the authority of the state institution

provided by the State Basic Law of the Republic of Indonesia Year

1945;

c. severing the dissolution of the political party; and

d. cut off the dispute about the general election result;

e. any other authority provided by the Act ".

That the Constitutional Court reserves the right to conduct the testing of the invite-

invite done with the benchmark of the Basic Act. Testing

can be done materially or formally. The intended

with materiel testing concerns the testing of the statute material,

so that it should be clear which part of the legislation

is concerned with the terms of which of the 1945 Constitution. The tested

may consist of only 1 chapters, 1 article, 1 sentence or 1 word in the statute

in question.

As for the testing request that the applicant is testing is testing

the materiel, defined as the Testing of the laws in respect

with the charge material in paragraph, section, section of legislation considered

in conflict with the Constitution of the Republic of Indonesia.

That the applicant in this case proposes a material test. over Section 16

paragraph (1) letter b of the Act No. 6 Year 2011 on Immigration

(sheet state of the Republic of Indonesia in 2011 Number 52) against Article

28A and Article 28D clause (1) of the 1945 Constitution to the Constitutional Court.

That what the Constitution meant by the 1945 Constitution is not solely in the understanding of the article-

article in it, but according to Soepomo, UUD 1945 is made up of the Opening

and the Body Bar. The opening describes the subject matter or philosophy of establishment

The State of the Republic of Indonesia. The body bar contains passages that

explain the implementation of the underlying mind or philosophy of the Opening of the Constitution

1945. Thus the invocation of the applicant against Article 16 of the paragraph (1)

the letter b is not restricted to the body stem, but the Court

5

The Constitution must also pay attention and test the subject of mind or philosophy of

The opening of the 1945 Constitution to the legislation is being honed.

That by the authority of the Court of Justice, the Court of Justice is required to be used.

That The above constitution

the request has been in accordance with the provisions, then the petitioners requested

to the Chief Justice of the Constitutional Court to set the Constitutional Court

authorized to prosecute a quo.

B. Legal standing (Legal Standing) the applicant as the Constitutional Court of Rights

That under the provisions of Article 51 of the paragraph (1) MK Act, has been set

regarding the parties that may be the applicant in the hearing The Constitutional Court

The Constitution is: " The applicant is a party that considers the right and/or authority

its constitutionality is harmed by the law, i.e.

a. Individual citizen of Indonesia;

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

The development of the people and the principles of the Republic of the Republic of Indonesia

which is set in undra;

c. public law enforcement or Private; or

d. State institutions. "

That in addition to the provisions of Article 51 paragraph (1) of the MK Act, Article 3 of the Court of Justice

Constitution Number 06 /PMK/2005 on the Guidelines of Event In Testing

The Act on the legal position also governs the terms as

following:

" The applicant in testing the Act against UUD 1945 is:

a. An Indonesian individual or a group of people who have

equal interests;

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

The development of the people and principles of the Republic of the Republic of Indonesia

which is set in undang-Undang;

c. public legal entity or Private legal entity;

d. State institutions. "

6

Based on the above regulatory description, it can be concluded that the subject of the law

which may apply for testing of the Act against

The Basic Law of 1945 is the public legal entity or Private legal entities,

in addition to individual citizens of Indonesia (including groups of people who

have common interests), the unity of the indigenous law society as long as

is still alive and in accordance with the development of the community and State principles

The Indonesian RepubIik Corps which is governed in the Act, and the state institutions.

So that the subjects of this law are subject to legal subjects that

potential have legal standing to apply for testing

Act against the 1945 Constitution.

Further, even though the MK Act does not explain what and who

is categorized as a public legal entity or a private legal entity, plus

also the provisions governing the legal body in general are also not yet present.

However, an explanation for the MK Act stated,

"The individual referred to the individual includes the group of people who have

equal interests."

That the applicant 1 up to the applicant 6 is an Indonesian citizen

who has a common job as an Advocate. So that the applicant

gets the chance to know more about the Immigration Act

which is a guideline for law enforcement apparatus in the running of the profession

following its application in practice.

That Constitutional jurisprudence of the Constitutional Court in the Decree No. 006 /PUU-

III/2005 and subsequent rulings, provide an interpretation of the Article

51 paragraph (1) MK Act related to the constitutional right described as

following:

a. there must be a rights and/or constitutional authority of the applicant given

by UUD 1945;

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

aggrieved by an promulg;

c. the rights and/or constitutional authority is specific

and actual, or At least as potential as reasoning

a reasonable one is certain to occur;

7

d. There is a causal link between the loss of the right and/or

the constitutional authority with the legislation that is moveed

testing;

e. It is possible that with the application of the request, then the loss

rights and/or constitutional authority referred to or no longer

occurred.

That in conjunction with legal standing the applicant is

a citizen of Indonesia who together has the same interests

the same because it is professed as an Advocate. So that if associated with

types of constitutional rights and/or constitutional authority that must be specific and

actual, then the constitutional losses experienced by the applicant include

in this type of loss. potential that according to reasonable reasoning

can be determined to occur.

That expressly and clearly Article 16 paragraph (1) letter b of the Immigration Act

as it reads:

" (1) Immigration Officials reject people for exit Indonesia in terms

the person:

b. is required for inquiry and investigation purposes

authorized official request ".

That in the phrase that states reject" people ", by not limiting

to whom the person is. Then it can be drawn to the person in question

is every person. And any person by itself that can be

the object of inquiry, including and not limited to Pemohon.If the article

in the Act only limits on a group of people. For example, if only

is shown in a custom society or a certain group of people, and

if it is clear the applicant is not a intended society then there is no legal

standing for the applicant. Because such a section would not be possible

harms the constitutional interest of the petitioners. However, because this

is shown to each person then the very potential of this section is imposed

to the applicant if the applicant is an object in the investigation.

again the investigation is a series of activities without having to There's a follow-

8

criminal, suffixed with suspected felon so potentially

is imposed to anyone without any criminal law events first.

In this case if one moment the applicant is in the process The inquiry, then

The petitioners will have a constitutional loss resulting from

enforcement of the erroneously executed law enforcement agency

law (in casu Investigator, Investigator, Public Prosecutor and Judge), where the right

The petitioner to live and maintain his life and life, and

entitled to the recognition, warranty, protection and fair legal certainty

as well as the same treatment before the law, may be taken with

the enactment of the provisions of Article 16 of this paragraph (1) letter b.

That element The same interests of the petitioners, it is in the interest of

to prevent the onset of the constitutional loss that ponyous will occur

and experienced alone by the petitioners. Besides, in addition to the applicant

based as a citizen of Indonesia, the petitioners also have

the same profession or job, as the Advocate based

Article 1 of the number 1 Act of the Year 2003 on Advocates,

stated that:

" The Advocate is a person of the profession giving legal services, both within

and outside the court that meets the requirements under the terms

the legislation Here. "

That the implementation of Article 16 paragraph (1) of the letter b in practice can open

the opportunities that result in the loss of the applicant ' s constitutional right

as contained in the Basic Law of 1945 as well as living

Constitutional values existing in the Union of the Republic of Indonesia.

That Article 16 paragraph (1) letter b of the Immigration Act is a very non-

fair so that it has violated the constitutional rights granted by the Constitution of 1945.

to the applicant in particular Section 28 of the letter D paragraph (1):

"Everyone is entitled to the recognition, assurance, protection, and certainty

fair laws as well as the same treatment before the law."

9

Thus the applicant's definition of the legal position/legal basis

standing of the applicant. The violation of the constitutional rights that

The applicant mentioned in this section has shown the right

the constitutional rights of the applicant.

In an attempt to prove the legal position/legal standing Of course not

could be avoided the entry of the arguments associated with the Act to

be tested. Nevertheless, in this application, it will be further explained

on the sitting of cases and violations of constitutional rights

in connection with the application of Article 16 paragraph (1) of the letter b Act

Immigration.

Next, Prof. Dr. Jimly Asshidiqie, S.H. says that the

criteria, in its implementation, are abstract and are not enforced in

absolute. To see if there are rights, authority, or losses

constitutional, it must see the constitution of a country.

II. REGARDING CONSTITUTIONAL LOSSES

Article 16 paragraph (1) of the letter b Act 6 of 2011 on

The immigration has contradictory and violates the constitutional right of the applicant

which is contained in Section 28 of the letter A and Article 28 of the letter D paragraph (1) UUD 1945.

The Protection of Human Rights (Human Rights) has a long history that begins

of the same natural dignity and humanitarian rights and cannot be

revoked. Recognition of the dignity and rights of such rights is the basis of

independence, justice and world peace. We see human rights as something

vital to keeping human life humane and keeping the right

the most precious, i.e. the right to be human. As a term, dignity

and the rights of such humanity are referred to as human rights. Article 4-

Invite Number 39 Year 1999 on Human Rights mentions a number of

absolute rights, cannot be reduced under any circumstances and

by anyone. Such rights include:

1. Right to life;

2. Right to not be tortured;

3. The right of personal liberty, mind and conscience;

10

4. Religious rights;

5. The right to not be enslaved;

6. The right to be recognized as personal and equality before the law;

7. The right to not be prosecuted on the basis of the law is retroactive.

The formulation of Article 4 of the Law No. 39 of 1999 on Fundamental Rights

Humans are equal to the formulation of Article 28 of the letter I paragraph (1) amendment of the Invite-

Invite Basis (UUD) 1945 That is:

" The right to life, the right to not be tortured, the right to freedom of mind and heart

conscience, the right to religion, the right to be unenslaved, the right to be recognized as

personally in the presence of the law and the right to not be prosecuted on the basis of the law

The prevailing ebb is the human rights that cannot be reduced in circumstances

anything ".

Sentence " ... cannot be reduced under any circumstances " indicates that

those rights are absolute, irlimited,

rights. Article 28 of the letter J paragraph (2) of the Constitution of 1945 is a recognition of

the obligation to respect the rights and liberties of others within the limits-

the limitations set forth by the law.

Thus, recognition as personal and the treatment as well as protection

equal before the law, it raises the right for someone to sue

to the government to meet and provide protection and treatment

the same before the law.

In this request, the possible constitutional rights and/or been violated

are the constitutional rights granted by the 1945 Constitution, to be exact

Article 28 of the letter A and the letter D paragraph (1) which reads:

Article 28 letter A:

" Everyone has the right to live as well as entitled to maintain life and

his life ".

Article 28 letter D paragraph (1):

" Everyone is entitled to recognition, assurance, protection, and certainty

fair laws as well as the same treatment In the face of the law.

11

Based on Article 28 of the letter A and Article 28 of the letter D paragraph (1) The UUD 1945 in

up, then each person, including the applicant, is entitled to maintain

life and life gain position. as well as the same treatment in

before the law, obtaining recognition, assurance, protection, and certainty

fair law.

That it relates to the right to life, according to the applicant with

the conduct of Article 16 of the paragraph (1) letter b of the Immigration Act throughout the word

enquiry, clear out Indonesian territory have a relationship in a broad sense.

In working seeking the income of the applicant running his profession

as an Advocate, it certainly sometimes demands the applicant to exit the region

Indonesia, but if in dealing with a The request was later

The applicant is associated with a matter which the petitioners are in and

The case is only in the later stages of the inquiry. against the

The applicant.

That expressly and clearly Article 16 paragraph (1) letter b of the Immigration Act has

provide room for investigators and investigators to violate the rights

The petitioners, as it reads:

" (1) Immigration Officials rejected people to exit the Indonesia Region in terms

the person:

b. is required for the purposes of the investigation and investigation of

authorized officials request ".

That the provisions of Article 16 paragraph (1) of the letter b set about

authority of the investigators to request to immigration officials do a cekal

against a person, despite a new examination at the very stage of the investigation

violates one's fundamental rights.

The provisions above are highly open space and opportunities for agencies-

law enforcement agencies such as the Corruption Eradication Commission (KPK) for

easily ban fundamental rights. a person to travel in order

to live life and life.

12

In addition if the applicant is still in the process of inquiry but already

is forbidden to travel, immigration officials reject the petitioners to exit

the territory of Indonesia at the request of the investigators, in the where it has not established who

who is the Suspect, the constitutional right of the applicant as set

in Article 28 of the letter D paragraph (1) has clearly been violated. This type of practice

occurs in the case of M. Nazaruddin's name being banned by request

The Corruption Eradication Commission, while against M. Nazarudin yet

the case and has not been called by the KPK.

That with the authority provided by Article 16 of the paragraph (1) letter b

that a citizen has been shown to have been severely harmed in the rights

of its supposed constitution, which is human rights

as set out in Article 28 of the letter D paragraph (1) of the 1945 Constitution. Loss of

Constitutional Rights violation of the enactment of Section 16 paragraph (1) of the letter b

may also adversely affect the later constitutional rights of the Applicants

the day.

That in essence the applicant strongly objected if it was still in the process

an inquiry, one could already be rejected or at its core forbidden to

travel abroad. Because such action is a form

an independence appropriation or a form of forced attempt.

The investigation itself corresponds to the sound of Article 1 of 5 of the KUHAP:

" The investigation is a series of investigative actions. to search and

found an event that is suspected to be a criminal act to determine

may or may not be made a setup in a manner that is set in an invite-

invite this ".

So based on the sound of the article, it is premature if

still at the level of inquiry a person can already be subjected to forced attempts.

That the presence of a ratio of legis ratio is Use the

by forced attempt.

Examples of cases, in the case of a theft in the office of O.C. Kaligis, and to

the interests of the investigators through immigration officials conduct a cekal attempt

towards O.C. Kaligis employees. It might still make sense.

13

However if "possible" there was theft or not necessarily a theft in the office

O.C. Kaligis, then an investigator through immigration officials made an effort

The ban on the office clerk O.C. Kaligis. This is an

extremely absurd act, as it has made a forced attempt

when it is not necessarily a criminal law event.

That but it turned out to be the work that the investigators could do.

through immigration officials such as the example above has been allowed to happen

based on Article 16 of the paragraph b (1) letter b of the Immigration Act.

That currently the petitioners do not act as legal power of the person

affected by the direct impact of Section 16 paragraph (1) letter b or moment

these The applicant may not or may not have been subjected to a result of

the enactment of the section. Once again the Applicant Reiterates that it refers to

on Putermination Number 006 /PUU-III/2005, the loss at least is

a potential that according to reasonable reasoning can be certain to occur.

That the KPK action is is proof of the enforcement of Article 16 paragraph (1)

letter b performed by KPK, so that later will always be open

the possibility that constitutional rights are related to recognition, guarantee,

protection and a fair legal certainty as stated in

Article 28 of the letter D paragraph (1) UUD 1945 would be violated.

That the enactment of the provisions of Article 16 paragraph (1) of the letter b

The immigration of the clear and light that the KPK against M.

Nazaruddin, then potentially inflict a loss on the right constitutional

The applicant who according to reasonable reasoning can be certain.

It may be possible someday if the applicant is associated with an

an event that is not necessarily the case of such event. criminal events, para

The applicant is already banned first.

With so, to avoid any further actions-

The authority of the law enforcement apparatus, the petitioners apply

to the Constitutional Court to do materially testing against

Article 16 of the paragraph (1) "Investigation" of the word "Investigation".

14

is very unconstitutional because it is in conflict with Article 28 of the letter D paragraph (1)

Constitution of 1945.

IV. Plea

That based on the things the applicant has raised above, the

the applicant hereby pleads with the Constitutional Court of Justice

deigned to prosecute the applicant with an amar ruling as a

The following:

1.   Accept and grant requests from the Applicant for

entirely;

2. Stating the word "Investigation" in Section 16 of the paragraph (1) letter b Invite-

Invite Number 6 Year 2011 on Immigration (State Sheet

Republic of Indonesia 2011 No. 52) and Explanation of Article 16 of the paragraph (1) letter b

Act 2011 No. 6, 2011 on Immigration (Additional

The State Gazette of the Republic of Indonesia Year 2011 No. 52) has

contrary to Article 28A and Article 28D of paragraph (1) Act

Basic 1945;

3. Stating the word "Investigation" in Section 16 of the paragraph (1) letter b Invite-

invite Number 6 of the Year 2011 on Immigration (State Sheet

Republic of Indonesia 2011 No. 52) and Explanation of Article 16 of the paragraph (1) letter b

Act 2011 No. 6, 2011 on Immigration (Additional

The Republic of the Republic of Indonesia Year 2011 No. 52) is not

has a binding force;

4. Ordering the loading of this ruling in the Republic News of the Republic

Indonesia as it should be.

Yet if the Constitutional Court of the Constitutional Court argues in another, then

please the ruling that is well-adied (ex aequo et bono).

[2.2] weighed that to prove the Applicant's control

submitted the proof written evidence of P-1 to the Proof P-2 as follows:

1. Proof of P-1: Photocopy of Law Number 6 of the Year 2011 on

Immigration;

15

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

In 1945.

That to prove the petitioners of the petitioners on September 27, 2011 has been heard expert on the experts

The applicant who also submitted the written statement through the Panyness

Court of 29 September 2011 September 2011 which is in the following list;

1. Prof. Dr. O.C Kaligis

That Article 16 paragraph (1) of the Immigration Act is associated with KUHAP, then

can be retracted the interpretation that Immigration officials refuse to exit

Indonesian territory in the case of the person is required for the sake of

enquiry, immigration officials may refuse people to exit the region

Indonesia if there is an alleged criminal offence. This is according to the expert, contradictory

with the law, given its very premature/early nature. How

may be solely due to alleged criminal conduct, one can

be denied for exit of Indonesia;

As for the legal basis that experts use is as follows:

a. Article 13 Universal Declaration Of Human Rights ("UDHR") that reads:

" 1. Everyone has the right to freedom of movement and residence within

the borders of each of state. 2. Everyone has the right to leave any country,

including his own, and return to his country;

An expert translation is as follows:

1). Everyone has the right to move and choose a place to stay

along within the boundaries of the country ' s territory-mass;

2). Each person has the right to leave any country,

including his own country, as well as return to his own country.

b. Article 27 of the Law No. 39 of 1999 on Fundamental Rights

Man ("Human Rights Act") which reads:

1. Each Indonesian citizen is entitled to freely move,

move on, and reside in the Republic of the Republic region

Indonesia;

2. Each Indonesian citizen is entitled to leave and enter

return to the territory of the Republic of Indonesia, in accordance with

the provisions of the laws of the law;

16

Article 16 of paragraph (1) paragraph b of the Immigration Act is contrary to the sound

Article 27 of the human rights act;

c. Article 12 International Covenant On Civil and Political Rights (" ICCPR)

which Indonesia has ratified as set forth in the Invite-

Invite Number 12 Year 2005 on the Concern of ICCPR (Kovenan

International about Civil and Political Rights), the sound of Article 12 of the ICCPR

is as follows:

1. Any person who is within the country is legally valid,

has the right to freedom of movement and choose a place to stay in

within the territory of the country;

2. Each is free to leave any country, including

his country, alone;

3. Rights that have been mentioned above cannot be banned unless

governed by law, deemed necessary to protect security

national, public security, health, or public morals, rights and

freedom of others, and in accordance with other rights recognized by

This Kovenan;

4. No one can forbid the right of citizens to enter

his own country arbitrarily.

d. Article 28E paragraph (1) of the 1945 Constitution that reads " Everyone is free to embrace

religion and worship according to their religion, choose education and

teaching, choosing a job, choosing citizenship, choosing a place

living in the country region and leave it, and be entitled to return ";

That the sound of Article 16 paragraph (1) of the letter b Act 6 of 2011

on Immigration is not only contrary to national law as well as

Constitution, but also in violation of an international legal instrument that has been

recognized as well as required to be executed by Indonesia;

The inquest at the level of inquiry is the usurpation of independence and

constitutes a crime of office, as mentioned in Article 421 of

the Code of Criminal Law. The witness position and the new suspect

is at the investigation level, so it should be a new ban

may be issued after the investigation phase.

17

2. Dr. Arbijoto

That the sounds of Article 16 paragraph (1) of the letter b set about authority

investigators to request to immigration officials do a restraining order

against someone, despite a new examination on stage investigation,

severely infraction of a person's rights;

A ban on someone who is still at the inquiry stage, is

contrary to the provisions of Article 28A of the 1945 Constitution, which states

" Everyone entitled to live as well as the right to retain life

and life ";

That with the authority of Article 16 paragraph (1) letter b of the Law Number

6 Year 2011 on the Immigration, a citizen is proven

has harmed its constitutional rights that should be protected, that is

the rights of the law. human as set in Article 28D paragraph (1) of the Constitution of 1945.

The loss of constitutional rights violations to the enactment of Article 16 of the paragraph

(1) letter b of Act No. 6 of the Year 2011 on the Immigration

, also potentially harmful to the constitutional right to expire

Article 16 paragraph (1) of the letter b 6 of the 2011 Act on

The immigration, also potentially harming the constitutional right of

The applicant at a later date;

[2.3] A draw that at the trial date September 13, 2011 has

heard the government ' s oral captions and on the 4th October 2011

The government has submitted a written statement delivered through

The Court of Justice which is at its office as follows:

I. THE SUBJECT OF THE APPLICANT

a. That Indonesian citizens ' applicants are in common

work as Advocate, so the applicant gets

a chance to find out more deeply about the Act

The immigration of which is the guideline for a law enforcement apparatus in

run the following profession its application in practice, hence the invite-

invite a quo has posed a potential type of loss that

according to reasonable reasoning can be It's confirmed.

18

b. That according to the applicant in particular the word "person" and there

in Section 16 of the paragraph (1) of the Immigration Act which is addressed to

each person, it is very potential to be subject to the petitioners

if the Applicant be an object in the investigation, whereas the activity

the investigation is without the need for a criminal offense, and enough

with the alleged criminal conduct without any criminal law events

first;

c. That according to the applicant a quo which governs the authority

investigators to request to the Immigration Officer do a cekal against

someone, despite a new examination at the very stage of the investigation

is in violation. a person ' s rights, and it can open up opportunities for

law enforcement agencies to easily prohibit someone

for travelling abroad;

d. In short, according to the Applicant a quo has created

the unfair treatment, and therefore contrary to the provisions

Article 28A and Article 28D of the paragraph (1) of the Republic of State Basic Law

Indonesia 1945;

II. LEGAL STANDING (LEGAL STANDING) PEMOHON

In accordance with the provisions of Article 51 of the paragraph (1) Act Number 24 of the Year

2003 on the Constitutional Court as amended by the Invite-

Invite Number 8 Year 2011 stated that the applicant is a party that

deems the rights and/or its constitutional authority aggrieved

the enactment of the law, that is:

a. Individual citizens of Indonesia;

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

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

which is set in promulg;

c. the public or private legal entity; or

d. country institutions.

The above provisions are expressed in its explanation, that the

"constitutional right" is the rights that are governed in the Basic Law

The Republic of Indonesia of Indonesia in 1945.

19

Thus, in order for someone or a party to be accepted as

The applicant who has a legal standing (legal standing) in the plea

testing Act against the Basic Law The Republic of the Republic

Indonesia in 1945, first had to explain and

prove it:

a. Qualify for the a quo as referred to in Article

51 paragraph (1) Act No. 24 of 2003 on the Court

Constitution as amended by Act No. 8

Year 2011;

b. The rights and/or its constitutional authority in the qualifying referred to which

is considered to have been harmed by the enactment of the tested Act;

c. Rights and/or constitutional authority of the Applicant as a result of

the enactment of the legislation being veed the test.

Further the Constitutional Court since the ruling Number 006 /PUU-III/2005 and

Putermination Number 11 /PUU-V/2007, and further rulings, have been

providing a cumulative understanding and understanding of the rights loss

and/or the constitutional authority arising out of the

Act according to Section 51 of the paragraph (1) Act Number 24 Year

2003 on the Constitutional Court as has been changed with Invite-

Invite Number 8 Year 2011 must meet 5 (five) terms that are:

a. the constitutional right of the applicant given by the Act

Basic State of the Republic of Indonesia in 1945;

b. that the applicant ' s constitutional right is considered by the applicant to have

harmed by a passed legislation;

c. that the intended constitutional loss is specific

(special) and actual or at least potentially a potential that

reasonable reasoning can be certain to occur;

d. (causal verband) between the loss and

the enactment of the legislation is being treated for testing;

e. It is possible that by the request of a request then

the constitutional loss postured will not or no longer occur.

Over those things above, then according to the Government needs to be questioned

interest The applicant is exactly the kind of person that you are.

20

the rights and/or its constitutional authority are harmed by the enactment of the provisions

Section 16 paragraph (1) of the letter b Act 6 of 2011 on

The immigration. Also whether or not there is a constitutional loss the applicant

referred to is specific (special) and actual or at least potential

that reasonable reasoning can surely occur, and whether or not there is

causal link attributable to (causal verband) between the loss and the entry-

invite is required to be tested.

That according to the Government, the provisions regarding the prevention apply to

any person who meets the provisions in Act Number 6 Year

2011 about the Immigration and not only apply to the applicant who

professions as an Advocate so that a quo is not discriminatory

and upholds the equality of the law (equality before the law).

That the applicant in the a quo test is not a person

is being asked by officials who are authorized to be denied traveling outside

Indonesia region, so that according to the government there is no loss The constitutional

that the applicant is experiencing.

In addition to the Government, the provisions are expected to be tested not in

positions that reduce, restrict or at least prevent-

prevent the petitioners from the outside.

in exercising his duties as Advocate.

Based on those things above, The government argues that the applicant

in this request does not meet the qualifications as having

legal standing (legal standing) as intended by the provisions

in Article 51 of the paragraph (1) Law No. 24 of 2003 on

Constitutional Court as amended with Law Number

8 Years 2011 and based on Constitutional Court rulings

preceding it.

Therefore, according to the Government is appropriate if the Supreme Chairman/Assembly of Judges

The Constitutional Court wisely declared the applicant

not acceptable (niet ontvankelijk verklaard).

However As such, if Your Majesty the Chairman/Assembly of the Constitutional Court argues

another, following the Government Description, as follows:

21

III. THE GOVERNMENT ' S EXPLANATION OF THE MATERIAL IS BEING HONED BY THE PETITIONERS

THAT BEFORE THE GOVERNMENT OUTLINED A DETAILED EXPLANATION OF THE MATERIAL

THE NORM CHARGE IN THE 2011 ACT NUMBER 6 OF THE IMMIGRATION,

that be asked to be tested by the applicant above, the Government

first delivered the philosophical cornerstone of prevention as well as the Implementation

implementation of prevention in the a quoAct, as follows:

A. PHILOSOPHY PREVENTION

Freedom of movement of each person recognized as a human right

as set forth in an international convention among others Universal

Declaration of Human Rights and International Covenant on Civil and Political

Rights, also in the provisions of Article 28E paragraph (1) of the Basic Law

Republic of Indonesia Year 1945, although human rights acknowledge and

guarantee the freedom of each person to move but the freedom that

meant is not a free-free freedom. (absolute freedom).

In this case the country can limit human freedom of movement based

on consideration of a country's interests based on clear reasons

legally and rationally, among other reasons national security, order

general, health and moral society and community interest.

In addition to that international freedom of movement is limited by convention

international in article 12 points 3 International Covenant on Civil and Political

Rights, as well as other regional legal instruments like Protocol 4th

The European Convention and the American Convention and the African Charter. The overall

pointing to a restriction on freedom of movement must be based on the grounds

which is clearly legally and rationally related to the protection efforts

national security and public order.

The terms of the limitations in Protocol 4th of the European Convention and the American Convention

refers to the reasons that are indeed necessary in a society

democracy. More specifically the American Convention and the African Charter added

the terms of the general public and moral health as an excuse, as well as

the American Convention and the Protocol " the 4th of the European Convention that added

the general safety as well. as an excuse.

22

Thus the restriction of freedom of movement against a person is

international is possible for the reasons adjusted to

the interests of a country that its implementation in the perinvite rule-

the country ' s invitation.

Article 283 paragraph (2) of the Basic Law of the Republic of Indonesia in 1945

also acknowledges the existence of a restriction on freedom of movement rights of any

persons based on Act with intent solely to

guarantee recognition as well as respect for the other people ' s freedom rights and

to meet fair demands in accordance with moral considerations, values

religion, security and public order.

The Act No. 6 of the Year 2011 set about Immigration

nationally, setting restrictions on freedom of movement in this case out

Indonesian territory is implemented in a precautionary framework, and

hence any person whose freedom is restricted may be denied

departure overseas for a certain reason by Immigration Officials in

the venue of the crossing international that in this case is set in the Act

this as a "Immigration Examination" (TPI).

B. IMPLEMENTATION OF ARTICLE 16 PARAGRAPH (1) LETTER b ABOUT

IMMIGRATION

That Article 16 paragraph (1) of the letter b Act 6 of 2011 on

Immigration declares that Immigration Officials reject people to exit

region Indonesia is aimed at an inquiry and investigation interest

by an agency or a law enforcement agency. The context of the rejection was

by not authoring the Indonesian territory against the person after

the request of an authorized official. What officials are

authorized in the Act as set out in Section 91 of the paragraph (2)

The Immigration Act consists of:

a. Finance Minister;

b. Attorney General;

c. Heads of State Police of the Republic of Indonesia;

d. Chairman of the Corruption Eradication Commission;

e. Head of the National Narcotics Agency; or

23

f. The leadership of the ministry/agency under the law has

the request of the Prevention.

The request of the authorized official is delivered in writing both to

the Minister for implementing the prevention and/or nature of the law. directly to

Immigration officials serving at the Immigration Checkpoint (TPI) or the unit

the technical executor of the TPI in urgent circumstances as

is set up in Article 92 of the Immigration Act, which reads:

" In circumstances urging officials as referred to in Article 91

paragraph (2) may request directly to certain Immigration Officials for

perform the Prevention. "

Which is referred to such "urgent circumstances" for example that would

be prevented from being feared fleeing the country at the time as well or have been

are at the Immigration Examination to exit the country before decision

prevention is set. Interests that want to be protected here with

the setting of people's refusal to exit the Indonesian territory in the related TPI

with national interests covering national security of public order, and

the interests of the public.

This pressing state has also been set up in another law called Invite-

Invite Number 2 Year 2002 on the Indonesian Republic Police to be exact

in Article 16 of the letter j which reads:

" In order hosting tasks as referred to in Section 13

and 14 in the field criminal proceedings, State Police of the Republic of Indonesia authorities

for:

j. submitted a request directly to immigration officials who

authorities at the immigration checkpoint in urgent circumstances or

abrupt to prevent or ward off the discredited person

Criminal action.

The request here is filed in the interest of inquiry and

inquiry against all crimes in accordance with the laws of the criminal event and

other laws as set forth in the case of the criminal proceedings. in Article 14

paragraph (1) letter g, by the Chief of the Indonesian National Police (Kapolri) at the lowest

seextent the Chief of Police Resort (Kapolres) next in time

at least 20 (twenty) days should be confirmed in a written decision by

Chief of the Indonesian Police (Kapolri).

24

Further by Act No. 6 of the 2011 interest

direct request in order of inquiry and inquiry as

referred to in Section 16 paragraph (1) letter J Act Number 2 2002

has been accommodated in Article 92 of Act No. 6 of 2011. Even

The Article 92 not only accommodated the interests of the investigation and

the investigation by the Police, but also among others by:

a. The Corruption Eradication Commission as in Section 12 paragraph (1) letter b

Act Number 30 of 2002;

b. National Narcotics Agency as referred to in Article 71 of the Invite-

Invite Number 35 Year 2009; and

c. The Attorney General of the Republic of Indonesia as referred to in Article

35 letters f Act No. 16 of 2004;

Thus the rejection by immigration officials to the person who will exit

the territory of Indonesia was implemented. in the context of the prevention.

The Prevention that is executed must meet certain criteria that

is set in Section 94 of the Act No. 6 of the Year of 2011:

1. Must be specified by a written decision by the authorized Officer;

2. The written decree contains at least:

a. name, sex, place and date of birth or age, as well as a photo that

is subject to the Prevention;

b. Prevention reasons; and

c. term of the Prevention.

Not in compliance with any such criteria, the Minister may refuse a request

The implementation of the Prevention will be delivered to the official

authorities in the most time slow 7 (seven) days from the date of the request

received accompanied by reason of rejection.

Against the subject matter the norm of the Immigration Act is moied

to be tested by the Applicant Section 16 paragraph (1) letter b Act

Immigration Act stated:

Article 16 of the Immigration Act

" (1) Immigration officials reject people for exiting the Territory of Indonesia in the event

the person:

a.

25

b. required for the purposes of the investigation and the investigation of

the request of the authorized official;

The provisions of the above by the applicant are deemed to be contrary to

the provisions of Section 28A and Section 28D paragraph (1) Country Basic Law

Republic of Indonesia Year 1945 which states:

Article 28A UUD 1945:

" Everyone has the right to live as well as the right to sustain life and

her life.

Article 28D paragraph (1) of the 1945 Constitution:

"Everyone is entitled to recognition, assurance, protection, and certainty

fair laws as well as the same treatment before the law."

On the presumption of the applicant above, the Government can explain

as follows:

1. that under Article 1 of the Number 8 Act of 1981

about the KUHAP, the understanding of the Investigation is a series

an investigator's actions to search for and find an event that

is alleged to be a follow-up. The criminal in order to determine or whether or not

is set to investigate in a manner set in this law.

The investigation here must be executed on the basis of the warrant/duty

to conduct the investigation.

2. that the authority of refusing people to travel out of the territory of Indonesia

which is being required for the purposes of investigation and inquiry,

is a small part of the criminal law enforcement process in

Indonesia known as the " with the integrated criminal justice systemmechanism.

That the integrated criminal justice system mechanism is a system that

views the process of solving criminal cases as one entity

since the investigation, investigation, prosecution, crime scene, up to

with the diidation and resolution at the correctional level, which

in there is an authority of the limitation of action

prevention and/or containment.

3. That the authority of the official to request and/or

order the ban on the person in the investigation stage and

the investigation is distributed in various Acts:

26

a. Act Number 6 of the Year 2011 on Immigration, which

reads:

Article 92

" In circumstances urging officials as referred to in

Article 91 of the paragraph (2) may request directly to the Official Immigration

certain to conduct the Prevention. "

b. Law Number 30 of 2002 on the Commission of Eradication

Corruption, which reads:

Section 12 of the paragraph (1) letter b

" (1) In carrying out inquiry, investigation, and

tasks

prosecution as contemplated in Article 6 of the letter c, the Commission

The Corruption Eradication is authorized:

b. ordered to the associated agencies to prohibit

someone is traveling abroad; "

c. Law No. 2 of the Year 2002 on the Republican Police

Indonesia, which reads:

Article 16 paragraph (1) letter j

" (1) In order to host the task as intended

in Articles 13 and 14 of the field criminal proceedings, State Police

The Republic of Indonesia is authorized to:

j. submitted requests directly to the official

authorized immigration at the immigration checkpoint

in urgent or abrupt circumstances to prevent

or ward off the discredited person performing

criminal. "

d. Law Number 35 of the 2009 National Narcotics Agency, which

reads:

Article 71

" In carrying out the task of eradication of abuse and

Narcotics of Narcotics and Narcotics Precursors, BNN authorized

conduct an investigation and investigation of abuse and circulation

dark Narcotics and Narcotics Precursors. "

e. Law No. 16 of the Year 2004 on the Attorney General

Republic of Indonesia, which reads:

27

Article 35 of the letter f

" The Attorney General has the duty and authority:

f. prevent or ward off certain people in or out of territory

The Republic of the Republic of Indonesia due to its involvement in

the criminal case in accordance with the laws. "

So that according to the Government, the applicant has been erroneously in setting

the section being tested in the trial due to the authority of the officials

authorized to request and/or order the ban on

the person in stages of inquiry and inquiry, not located in

Article 16 paragraph (1) letter b Act 6 of the Year 2011 on

Immigration.

4. That it is associated with Section 16 of the paragraph (1) of the letter b that is the invocation

the applicant, needs to be delivered that the Inquiry cannot

be executed as well as the merta without any warrant/task

issued by officials authorized and intended in order

seek or locate an event that is alleged to be a follow

criminal.

5. That refusal not to send people out of territory

Indonesia in order to continue this investigation is needed based on

considerations of officials authorized to protect the interests

national based on Law. Thus, the consideration of the

applicant that the investigation is arbitrary and that

is seen as potentially detrimental to his constitutional rights not

received his argument, due to an inquiry which is Arbitrary not

may be performed and it is limited by law.

6. That according to the Government, the applicant has been erroneously in

interpreting the contents of the provisions of Article 16 paragraph (1) of the letter b

Number 6 of the Year 2011 about the Immigration filed testing, where

the section does not provide the authority to the investigators for

requesting that immigration officials do a check on someone, but

only a provision provision provides authorization

to Immigration Officials to deny people traveling country ' s exit

in case the person is required for investigation and prosecution of

the request of authorized officials.

28

That long before Article 16 paragraph (1) letter b Act Number 6

The 2011 Act of Immigration was enacted, the Act has

granted the authority to investigators and or investigators and or

officials who are authorized to request or order a ban

against a person in the investigation, inquiry, prosecution

criminal case.

For example, Article 12 paragraph (1) of the letter b Act Number 30 Year

2002 on the Corruption Eradication Commission, has given its authority

to the Corruption Eradication Commission in carrying out the duties

enquiry, investigation, and prosecution, to order the Acting

Immigration ban a person traveling outside of Indonesia.

7. That related to the petitioners on behalf of M. Nazaruddin

was banned at the request of the Corruption Eradication Commission, though

against M. Nazarudin has not been litigled and has not been invoked by

KPK, the case it is a misnomer and needs the Government of clarification, that

based on the Decision Letter of the Corruption Eradication Commission

Republic of Indonesia Number Kep-235/01/V/2011 on the Prohibition of Traveling

To Foreign Affairs of the Muhammad Nazaruddin, Yulianis and Oktarina Furi,

known that at the time of the decision The ban was issued by the Commission

Corruption Eradication, the legal process of a quo already entered

The Investigator stage, as the Sprin.Dik Number of Inquiry warrants-

11 /01/IV/2011 dated 22 April 2011, Number Sprin.Dik-12/01/IV/2011 date

22 April 2011 and Sprin.Dik-13/01/IV/2011 dated 22 April 2011.

8. That the Government can provide a comparison of implementation

prevention in other countries, in this regard as a comparison that exists in

the Dutch state. The practice of prevention in the country of the Netherlands, "zakelijk"

(concrete) is performed for reasons related to the interests of the country,

for example for people who would exit the Netherlands which if the name

is listed in case of tax problem if not paying a top fine

the verdict against him, then he is not allowed to leave the Dutch state.

Empowerment of this provision among other countries ' interests as

investigation (investigation). Citizens of the Netherlands-also if

apply for a visa to another European country if due to certain problems

so that it is named in the "alert" Schengen Information System (SIS)

29

then he will not be granted visa and surely cannot depart to

the intended country.

Of the description above, according to the Government provisions Section 16 paragraph (1) letter

b Law Number 6 of the Year 2011 on Immigration has been in line

with the mandate of the constitution and hence not contrary to the Invite-

Invite the State of the Republic of Indonesia in 1945, in particular the provisions

Article 28A and Article 28D paragraph (1) of the Constitution of 1945, thus does not prejudice the rights

and/or constitutional authority. The petitioners.

IV. Conclusion

Based on those explanations and arguments above, the Government implores

to the Honourable Chairman/Assembly of Justice of the Constitutional Court of justice

plea for testing Act No. 6 of 2011 on

Immigration against the Basic Law of the Republic of Indonesia Year

1945, may give the following verdict:

1. Reject the invocation of the petitioners in full or no-

no one stated that the applicant's request for testing could not be

received (niet onvankelijk verklaard).

2. Accept the Government Description as a whole;

3. Stating the provisions of Article 16 paragraph (1) letter b of Law Number 6

The 2011 article on Immigration does not conflict with the provisions

Article 28A and Article 28D paragraph (1) of the Constitution of the Republic of the Republic

Indonesia of 1945

[2.4] The draw that in the trial dated 27 September 2011 and

on October 12, 2011 has been heard. Government expert information

at the following point:

1. Prof. Dr. Eddy OS Hiariej, S.H., M. Hum

That freedom of movement every person recognized as a birthright

human beings as listed in universal declaration of human

rights and international covenant on civil and political rights sejustified

is contained in Article 28E paragraph (1) of the 1945 Constitution. Despite human rights

concede and guarantees the freedom of each person to move, however

30

The freedom in question is not absolute freedom. The freedom

can be limited to consideration of the interests of the country based on

a clear and rational reason;

That the freedom to move as intended by the

The applicant is not Unsympathetic passages in the

situation

anything. This is in contrast to Article 28I paragraph (1) of the 1945 Constitution which

mentions the unequivocal and detailed rights of the unsympathetic

under any circumstances. Notwithstanding anything to the opinion that the restriction

against Section 28I paragraph (1) is contained in Article 28J of the 1945 Constitution;

That based on the case of judicial position and analysis, the provisions

Article 16 paragraph (1) of the letter b No. 6 of 2011 on

Immigration, discontradictory of Article 28A and Article 28D paragraph (1)

Constitution of 1945;

2. Prof. Dr. Denny Indrayana, S.H.,

That freedom of movement is not a liberty that cannot be reduced

under any circumstances or a non-derogable rights. He is the fundamental right that

may be interred with the terms set out in the legal provisions or in

this context in the provisions of the Immigration Act, then the provisions of the Article

16 Immigration Act in particular the paragraph (1) of the letter b submitted

its constitutionality in an expert opinion, not contradictory to

the constitution.

That prevarative authority granted to immigration officials as well

not serta-merta causes the right to be not entitled to

recognition, assurance, protection, and legal certainty, as set

in Section 28D as concerned actually remains recognized

the process exists, it is not an absolute authority, without oversight, which is not

can be cancelled. Article 96 of the paragraph (1) of the laws in question,

immigration regulates the mechanism for each person to be subjected to prevention

may file an objection to the official who issued the decision

prevention it. So, there is a procedure given by the legislation that

also opens up opportunities for in-challenge the prevention is committed.

31

The imposition or prevention does not limit the right of life in question.

He remains alive, indeed limited because the process is concerned

is undergoing a law enforcement process, especially the law. criminal.

The restrictions on basic rights in the criminal process are one thing

that is legitimate, not contradictory to the constitution, especially if he is not

non-derogable rights and is set under statute. That

provisions of Article 16 paragraph (1) letter b of the Immigration Act do not

contrary to, either section 28A and Article 28D UUD 1945;

3. Prof. Dr. Ahmad M. Ramli, S.H., M. H

Act Number 6 of the Year 2011 on Immigration, in particular

articles on people's refusal to exit the territory of Indonesia

intended to respond to various complaints communities, related to

often slowed the cekal effort carried out by law enforcement. This

is important to provide certainty in law enforcement efforts for

those who could potentially flee abroad.

The immigration that stated that immigration officials denied people for

out the region Indonesia, in which case the person is required to

interest the inquiry and inquiry at the request of an official

authorized, is intended for the effectiveness of law enforcement,

protecting the public order, and maintaining a sense of justice all over

society. The sense of public justice will be torn apart, if society

sees the facts of an offender who has harmed the country or pored-

pored the public order or damaged the future of this generation of nations,

left to waltz into overseas and we can only watch events

that without being able to do anything about it.

Article 16 paragraph (1) letter b Act 6 of 2011 on

Immigration, does not conflict with Article 28A and Article 28D Invite-

Invite Basic 1945. It is even an implementation of Article 28J paragraph (2)

The Basic Law of 1945. Because in the section referred expressly

stated, "Everyone is mandatory subject to the specified restriction

with legislation with intent solely to guarantee

recognition, as well as the respect of the the freedom of the other person, and for

32

meets a fair need in accordance with moral considerations, values

religion, security, public order in a society. "

One that is an expert footing, Thomas Hack makes one teaching

called the jurisprudence of interests is the teaching of the law

interests. That is to say, " When the interests are greater, when

the interests of the sovereign protection of the state, when the enforcement interest

the law, when the importance of the greater public order, should

be required, then The restrictions we have to do ".

[2.5] weighed that the applicant and the Government had submitted

a written conclusion through the Court of Justice on 19 October

2011 and 24 October 2011;

[2.6] weighed that to shorten the description This verdict, all

something that happened at the trial was appointed in the News Event News, and

is an unbreakable unit with the Disservice;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the intent and purpose of the applicant ' s plea

is to test the constitutionality of Article 16 paragraph (1) of the letter b throughout the word

"investigation" and the Explanation Of The Act Number 6 Year 2011 on

Immigration (First Gazette of the Republic of Indonesia 2011 No. 52,

Additional sheet of State of the Republic of Indonesia Number 5216, further called

Act 6/2011) against Article 28A and Article 28D of paragraph (1) Act Base

The State of the Republic of Indonesia in 1945, then called UUD 1945;

[3.2] Draw that before considering the subject of,

The Constitutional Court, next called the Court, will consider

first things as follows:

1. Court Authority to prosecute a quo plea;

2. Legal standing (legal standing) The applicant to act as the applicant

in the plea a quo;

33

Against both of these, the Court argued as follows:

The authority of the Court

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

" Constitutional Court of authority To prosecute at the first and final level

The verdict is final to test the legislation against the Invite-

Invite Basic, severing the authority of the state agency

The authority is given by the Basic Law, severing the dissolution

the political party, and breaking disputes about the results of the general election ", which

then repeated back in Article 10 paragraph (1) letter a Law Number

24 Year 2003 on Constitutional Court, as amended by

Act No. 8 Year 2011 on Changes to the Act

Number 24 Year 2003 on Constitutional Court (Republican Gazette

Indonesia Year 2011 Number 70, Extra Gazette Republic of State

Indonesia Number 5226, next called Act MK) stated, " Court

Constitution authorized Put to trial at the first and last level

The verdict is final for: a. Examining legislation against the Invite-

Invite Basic State of the Republic of Indonesia in 1945 ", juncto Article 29 paragraph (1)

letter a Law Number 48 Year 2009 on the Power of Justice

(State Gazette) 2009 Indonesia No. 157, Supplement

Republic of the Republic of Indonesia Number 5076) stated, Court

Constitution authorities prosecute at first and final level

The verdict is final for: a. Examining the legislation against the Invite-

Invite the State of the Republic of Indonesia in 1945 ";

[3.4] Draws That The Applicant's plea is testing

the constitutionality of the norm Article 16 paragraph (1) of the letter b along The word "investigation"

and the release of the Act No. 6 of 2011 on Immigration

so that the Court of Justice to prosecute a quo;

Occupation of Law (Legal Standing) The petitioner

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

acting as the applicant in testing an Act against

The Constitution of 1945 is those who consider the rights and/or authority

34

its constitutionality is harmed by the expiring Act

testing, i.e.:

a. Individual citizens of Indonesia (including groups of people

have common interests);

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

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

which is set in promulg;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945, must explain and prove first:

a. The applicant is referred to as Article 51 of the paragraph (1)

MK bill;

b. The presence of constitutional rights and/or constitutional authority is granted by

Constitution of 1945 as a result of the enactment of the Act which

is required for testing.

The applicant in the plea a quo qualies for him. as

individuals of Indonesian nationals who are professed as Advocates

assume the rights and/or its constitutional authority be harmed by

the enactment of Article 16 paragraph (1) of the letter b 6/2011 throughout the word of inquiry and

Explanation;

[3.6] weighed that regarding the loss of rights and/or authority

constitutionally referred to Article 51 paragraph (1) of the MK Act, the Court since

The Number 006 /PUU-III/2005, dated 31 May 2005, and the Number

11 /PUU-V/2007, dated 20 September 2007 and the verdict next

has been established about the existence of 5 (five) terms that must be met, namely:

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

by UUD 1945;

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

aggrieved by the enactment of the testing Act;

c. the rights and/or constitutional authority should be

specific. (specifically) and actual or at least any potential according to

reasonable reasoning is certain to occur;

35

d. (causal verband) between the rights loss

and/or the constitutional authority is referred to by the invitation-

Invite that the test is expected to be;

e. it is possible that by obscured the request, then

the rights and/or constitutional rights losses such as the postured

will not or no longer occur;

[3.7] Draws That The Petitioners are postulate as Individual citizens

Indonesia state and consider to have constitutional rights granted

Constitution of 1945:

Article 28A states, "Everyone has the right to live as well as the right

to sustain life and life";

Article 28D paragraph (1) states, " Everyone is entitled to the recognition,

guarantees, protection, and fair legal certainty as well as the treatment that

equal before the law ".

[3.8] Draw that the Applicant feels aggrieved by force:

Article 16 paragraph (1) of the letter b of Act 6/2011 throughout the word inquiry and explanation;

That the Applicant postulate the Act of the Law. for

tested it throughout the word inquiry sometimes demanded the applicant

to exit the territory of Indonesia, but if in dealing with a

the petitioners were associated with a matter that

The applicant is handling and the case is new in the investigation stage

whereas the para The applicant has been banned so as to inflict a loss

the constitutional for the applicant;

[3.9] Balanced that with regard to the potential consequences

experienced by the applicant is associated with the constitutional right of the applicant,

according to the Court of Applicant Qualified (legal

standing) to apply for testing Section 16 paragraph (1) letter b Act

6/2011;

36

[3.10] Draw that based on paragraph description [3.6] and paragraph [3.8]

The above, according to the Court, the applicant is eligible

law (legal standing) for apply for a quo;

[3.11] Draw that by the court of competent justice

a a quo, the applicant has a legal standing (legal standing) for

applying for a quo then Next Court will

consider the subject of the plea;

Subject

[3.12] weighing that the applicant in his request submitted

the materiile testing of Article 16 paragraph (1) letter b of Act 6/2011 throughout the word

"inquiry" which in its case is further complicate the constitutionality of the paragraph a quo

that if it is still in the process of inquiry one could already be rejected

or at its core is prohibited from traveling abroad, according to the applicant

the action is a form of independence appropriation or an

form of forced attempts;

[3.13] Draw that The Court has examined the written evidence that

submitted the petitioners (Evidence P-1 to the Evidence P-2) to support

The controls that have further elaborated in the Sitting Perkara section at

above;

That The Court has heard and read the Expert ' s caption

submitted by the petitioners, who at the point stated as follows:

1. Prof. Dr. O.C Kaligis

That the sounds of Article 16 paragraph (1) of the letter b Act No. 6 of 2011

on Immigration not only contradictory to national law as well as

the constitution, but also in violation of legal instruments international that has been

recognized as well as required to be implemented by Indonesia;

2. Dr. Arbijoto

That the sounds of Article 16 paragraph (1) of the letter b set about authority

investigators to request to immigration officials do the ban

37

against a person, despite a new examination at the inquiry stage,

strongly violates one's rights;

That the Court heard oral captions and read the caption

writing The government that in its office states Article 16 paragraph (1) letter b

Act No. 6 of 2011 on Immigration has been in line with

the mandate of the constitution and hence does not conflict with the 1945 Constitution,

specifically Article 28A and Article 28D paragraph (1) of the 1945 Constitution, as well as non-harm

rights and/or authority The applicant's constitutionality.

To prove that the Government's administration submitted three experts who

on the point of view as follows:

1. Prof. Dr. Eddy OS Hiariej, S.H., M. Hum

That based on the case of case position and judicial analysis of provisions

Article 16 paragraph (1) letter b Act 6 of 2011 on

The immigration, not contradictory to Article 28A and Article 28D paragraph (1)

Constitution of 1945;

2. Prof. Denny Indrayana, S.H., LL.M., Ph.D

That freedom of movement is not a freedom that cannot be reduced

in any state or non-derogable rights. He is the fundamental right that

may be interred with the terms set out in the legal provisions or in

this context in the provisions of the Immigration Act, then the provisions of the Article

16 Immigration Act in particular the paragraph (1) of the letter b submitted

testing of its constitutionality in an expert opinion, not contradictory

with the constitution.

3. Prof. Dr. Ahmad M. Ramli, S.H., M. H

Article 16 paragraph (1) of the letter b Act 6 of 2011 on

Immigration, does not conflict with Article 28A and Article 28D Invite-

Invite Basic 1945. It is even an implementation of Article 28J paragraph (2)

The Basic Law of 1945. Because in the section referred expressly

stated, " Everyone is mandatory subject to the specified restriction

with legislation with the intent solely to guarantee

recognition, as well as respect for the right of freedom other people, and for

38

meets a fair need in accordance with moral considerations, values

religion, security, public order in a democratic society ".

Court opinion

[3.14] Draws That Para The applicant tests the constitutionality of the word

"inquiry" contained in Article 16 of the paragraph (1) of the Act of 6/2011 which

states, " (1) Immigration officials refuse people to exit the territory of Indonesia

in the case of the person: a. ... b. required for inquiry purposes and

inquiry at the request of authorized officials; or " because according to para

The applicant said the investigation is contrary to any person ' s right to

live and maintain life [vide Article 28A UUD 1945] and rights

any person for recognition, assurance, protection, and legal certainty that

fair as well as the same treatment before the law [vide Article 28D paragraph (1) UUD

1945];

[3.15] Draw that need to first understand the understanding

"inquiry" to then consider contradictory or not

contrary to the two chapters of the Constitution of 1945 which the applicant says

contrary to the word "inquiry";

[3.16] It is balanced that according to Article 1 of the 5 Law No. 8

In 1981 on the Law of Criminal Events (State Sheet of the Republic of Indonesia

in 1981 Number 76, Additional Gazette of the Republic of Indonesia Number

3209 next KUHAP), " The investigation is a series of investigators ' actions

to search for and find an alleged event as criminal activity

to determine can or not be sent by an inquiry according to the manner set in this law ";

[3.17] A draw that from the definition of the investigation may be concluded,

not necessarily Under investigation, there is no legal certainty.

The investigation is being carried out by Immigration.

to exit the territory of Indonesia;

39

[3.18] A draw that the petitioners do not object to the prevention

exit of the territory of Indonesia is carried out at the preparation stage. Investigation is

a series of investigator actions in terms and in a manner set in

this legislation to seek and collect evidence that with that evidence

makes light about the criminal acts that occur and To find

the suspect (vide Article 1 of the KUHAP);

[3.19] It is balanced that in the investigation stage there is no certainty

being sired or unwitted. No search and evidence collection has not been performed, new

stage gathering information. If it is in the investigation stage because it is

a search and evidence collection is done, it is reasonable if it can be a rejection

to travel abroad, since there is a possible fingerprint carrying evidence-

relevant evidence. with a domestic criminal offense making it difficult

investigators conduct a search and evidence collection to make it bright

about the criminal who happened to find his suspect;

[3.20] A draw that the Court argued the investigation is still

in the stages conducted by the investigators in order to exist or

the absence of a criminal offence in a particular case and to seek proof-

the initial evidence to determine who the culprit is. Therefore, denial

against someone to exit the territory of Indonesia when its status is uncertain

being a suspect in a criminal offense as it is still in stage

The investigation will be easy to reason for Blocking a person's motion

to exit the country. Furthermore, in the course of the investigation, someone is not yet

knowing whether or not she is in the process of inquiry or not and

the process of inquiry is no definite term so it is unknown

when should Over. Preventing a person from abroad in stages

can be misused for interests outside of enforcement interests

the law thus violates the right of a person guaranteed by the constitution that is the right

that is determined in Article 28E UUD 1945 stating, " Any person

is free to convert to religion and worship according to his religion, choose education and

teaching, choosing a job, choosing citizenship, choosing a place to stay

in the country region and leave it, and be entitled to back ". The a quo

provision also violates the constitutional provisions that require the state to provide

40

guarantees, protection, and fair legal certainty, as well as equal treatment

in the presence of the law, as defined in Section 28D paragraph (1) of the 1945 Constitution;

[3.21] Draw that although only the word The "investigation" that

is directed by the petitioners to be declared unconstitutional, but

the word "and" which is between the word "investigation and inquiry" is not

has meaning, due to the rest of the word "investigation" which is left, no more words

"inquiry" so that the word "and" in Article 16 of the paragraph (1) B Act 6/2011

must be abolished anyway. Thus, Section 16 of the paragraph (1) of the letter b Act 6/2011

further stated, " (1) Immigration officials deny the person to exit

the territory of Indonesia in the case of the person: a. ... b. required for the benefit of

inquiry at the request of authorized officials; or ";

[3.22] Draw that based on such consideration above, according to

the Court, the request of the Applicant is justified according to the law;

4. KONKLUSI

Based on the assessment of the facts and laws as described in

above, the Court concluded:

[4.1] The court is authorized to prosecute the applicant;

[4.2] The applicant has a law (legal standing) to

apply a quo;

[4.3] Pokok the request of the Applicant is reasonable according to the law.

Based on the Basic Law of the Republic of Indonesia Year

1945, Act No. 24 of 2003 on the Constitutional Court

as amended with the 2011 8 Year Act on

Changes to the Law No. 24 of 2003 on the Court

Constitution (State Sheet of the Republic of Indonesia of 2011 Number 70,

Additional Sheet Negara Indonesia Number 5226), Act

Number 48 Of 2009 On The Power Of Justice (state Sheet

The Republic Of Indonesia In 2009 Number 157, Additional Gazette Number Of State

5076).

41

5. AMAR RULING

PROSECUTING,

STATES:

GRANTING THE APPLICANT ' s plea;

The word "inquiry and" indicated in Section 16 of the letter b

Act No. 6 of the Year 2011 on Immigration (sheet

State of the Republic of Indonesia of 2011 No. 52, Extra Sheet

State of the Republic of Indonesia Number 5216) contradictory to Invite-

Invite the Basic State of the Republic of Indonesia in 1945;

"enquiry and" indicated in Article 16 of the paragraph (1) letter b

Act Number 6 of the Year 2011 on Immigration (sheet

State of the Republic of Indonesia of 2011 No. 52, Extra Sheet

State of the Republic of Indonesia Number 5216) has no legal force

binding;

Require the loading of this verdict in the News The Republic of the Republic

Indonesia as it should be.

So it was decided in a Meeting of the Judges by

the nine Constitutional Judges of the Moh. Mahfud MD as Chairman was arrested

Member, Achmad Sodiki, Muhammad Alim, Anwar Usman, Maria Farida Indrati,

Ahmad Fadlil Sumadi, Hamdan Zoelva, Harjono, and M. Akil Mochtar, respectively-

respectively as Members, at on Tuesday date twenty-four months

January of two thousand twelve and spoken in the Plenary Session

The Constitutional Court is open to the public at Wednesday the eighth

year February two thousand two , by the eight Justices of the Constitution,

Moh. Mahfud MD as Chairman, Achmad Sodiki, Muhammad

Alim, Anwar Usman, Maria Farida Indrati, Ahmad Fadlil Sumadi, Hamdan Zoelva,

and M. Akil Mochtar, respectively as Member, with accompanied by Ida

Ria Stockpile as a Penitera Panitera, and attended by the petitioners,

42

The government or the representing, as well as the House of Representatives or that

represents.

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

MEMBERS,

ttd.

Achmad Sodiki

ttd.

Muhammad Alim

ttd.

Anwar Usman

ttd.

Maria Farida Indrati

ttd.

Ahmad Fadlil Sumadi

ttd.

Hamdan Zoelva

ttd.

M. Akil Mochtar

PANITERA REPLACEMENT,

ttd.

Ida Ria Tamheap