Key Benefits:
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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
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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
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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:
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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
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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. "
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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;
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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-
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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."
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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;
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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.
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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.
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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.
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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".
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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;
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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;
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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.
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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.
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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.
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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