21

e. Conduct an inspection and seizure of mail;

f. Take a fingerprint and photograph someone;

g. Calling people to be heard and checked as suspects or

witnesses;

h. Bring the necessary experts in the relationship with

case check;

i. Holding an inspection outage;

j. Hold other actions according to the law in charge

Article 5

(1) Investigators as referred to in Section 4:

a. Because its obligations have the authority;

1. Receive a report or complaint of a person about

criminal offense;

2. Searching for evidence and evidence;

3. Asked to stop a suspected and inquire as well

check the self-identification mark;

4. Hold other actions according to the law in charge.

b. At the command of the investigator can perform an action:

1. Arrest, ban leaving place, stuffy and

foreclosure;

2. Mail inspection and seizure;

3. Taking a fingerprint and photographing someone;

4. Bring in and confront an investigator.

2. That Polri is based on Law No. 2 of 2002 on

The Indonesian National Police ("POLRI Act") among others Article 16 also

has the authority:

(1) In order to host the task as referred to in

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

Indonesia authorized to:

a. Making arrests, detentions, forfeiture and foreclosure;

b. Prohibit any person from leaving or entering the scene

case for the interest of the inquiry;

c. Bring in and confront people to investigators in order

the investigation.

22

d. Asked to stop the suspected and inquire as well

check for self-identification;

e. Conduct an inspection and seizure of mail;

f. Calling people to be heard and checked as suspects or

witnesses;

g. Bring the necessary experts in the relationship with

case check;

h. Holding an inspection outage;

i. Submitting the case file to the public prosecutor;

j. Submit a request directly to an immigration official

authorities in an immigration checkpoint in urgent circumstances

or sudden to prevent or ward off a disfigure person

do criminal acts;

k. Provide guidance and inquiry assistance to employee investigators

the civil service as well as receiving the results of a civil servant investigator's investigation

civilian to be handed over to the public prosecutor; and

l. Convene another act according to the law in charge.

3. That if compared to the result of the explanation of Article 95 (1)

KUHAP, then the Suspect or the defendant and even citizens

(read: people) have no right to demand damages for action

excessive or The violation of all the Polri's authority could

be done to the Suspect or the defendant, even citizens.

For example, aside from the reasons put forward with the events

a quo then there is no right citizens to demand change against

an action of the wrong person in prevention and denial (Article 16 paragraph (1)

letter j of the Polri Act).

III. E. Fills the legal void of human rights defense:

1. That the authority of the Act provided to Polri

and/or its members always requires respect

against human rights as among others as set forth in

Article 16 of the paragraph (2) of the Polri Act of the Act of Polri. reads: (2) Other actions

as referred to in paragraph (1) l is the action

the investigation and inquiry executed if qualified

as follows:

23

a. Not contrary to a rule of law;

b. In accordance with the legal obligations that require the action

it is done;

c. It should be appropriate, reasonable, and included in the linkungan of his post;

d. Viable considerations based on the force of the force; and

e. Respect for human rights.

2. That the Republic of Indonesia has an Act governing

on Human Rights among others but not limited to the Invite-

Invite Number 39 of 1999 on Human Rights (Human Rights Act) and

Act Number 26 Year 2000 on the Court of Rights

Man. However, a violation of human rights violations that could

given the law was simply "Human Rights Violations

weighing". Thus a series of provisions in the human rights Act

be a 'lips service' or a 'ornament'. Ordinary human rights violations,

altogether do not acquire a place to process court law

let alone obtain adequate legal sanction.

3. That also in the Polri Act (among others as it is called

in points 1 above) and KUHAP, any form of constraint to obey

the law and/or Human Rights only becomes a 'mere hymn',

without any sangsi not even any process when it is violated.

Indeed it will be responded with internal surveillance

from the Polri itself, but sorry, normatively still it

still 'suka-suka' Polri my own.

III. F. Pranata functions "Internal control" is not "Control" which is based on due

process of law:

1. That is known as the adagium "Power tends to corrupt, absolute power corrupt

absolutely" that any authority should be offset by

control "control" adequate.

2. That must be the Government and/or the Police in its response

will reveal the presence of surveillance for any actions of the apparatus

Polri in exercising its authority. It can then be delivered

as well as any moral oversight of society, mass media, or any other party

anywhere that is relative to the absence of any legal certainty.

24

3. That without the length of the word for the disclaimer for that matter,

then the applicant wants to plead for the Court to

pay attention to the response about it which is no other just

swirling in context "Internal Control". Hence a small group of lay people when asked to assess Oversight

in the body of the security apparatus in particular Polri only responded with

borrowing the advertising term "where there is orange eating oranges". In addition, if

is within, then such surveillance and when

exists with the santhematically done not based

"due process of law".

End of the word, with more Used to rule in gratitude and please

protection of the presence of God SWT, then introduce the applicant

The court for the sudi court plea a quo and deigned

Decide among others but not limited to the following items:

1. Grant the Applicant Request for the whole;

2. Stated Article 21 paragraph (1) Act No. 8 of 1981

on the Code of Criminal Events Law (State Sheet

The Republic of Indonesia 1981 Number 76 juncto Additional State Sheet

Republic of Indonesia Number 3209) is in accordance with the Act

Basic State of the Republic of Indonesia in 1945 conditional

(conditionally constitutional), which is constitutional as long as it is understood:

"In case of the circumstances of the cause concerns that

the suspect or the defendant will flee, damaging or eliminating

the evidence, or repeating the felon, then it must

is evidenced by the specific action facts of the suspect or

The defendant is in charge of the circumstances those and can be tested through

prejudicial agencies "

3. Stated Article 21 paragraph (1) Law No. 8 Year 1981

on the Code of Criminal Events Law (State Sheet

Republic of Indonesia 1981 Number 76, Additional Republican Gazette

Indonesia Number 3209) did not have a binding legal force

throughout is not being interpreted: "In case of circumstances that elicits

the concern that the suspect or defendant will escape, damages

or remove any evidence, or repeating a felony, then the thing

25

It must be proven by the fact that certain action facts of

the suspect or defendant are caged to it and can

be tested through the pretrial institution "

4. Declaring Law No. 8 of 1981 on the Book of Invite-

Invite the Laws of the Criminal Events (State Sheet of Indonesia 1981

number 76, Additional Gazette of the Republic of Indonesia Number 3209)

The explanation of Article 95 of the paragraph (1) which reads: "In question

" loss due to other actions " is the loss incurred

by home income, unauthorised search and seizure

according to the law. Including detention without a reason is the detention that

longer than the criminal dropped ". Contrary to

The Basic Law of the Republic of Indonesia Year 1945;

5. Declaring Law No. 8 of 1981 on the Book of Invite-

Invite the Laws of the Criminal Events (State Sheet of Indonesia 1981

number 76, Additional Gazette of the Republic of Indonesia Number 3209)

The explanation of Article 95 of the paragraph (1) which reads: "In question

" loss due to other actions " is the loss incurred

by home income, unauthorised search and seizure

according to the law. Including detention without a reason is the detention that

longer than the criminal dropped " it does not have

the power of the law binding.

Or when the Court argued in another case, it would be possible. the verdict

that is fair.

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

submitted a letter/writing tool that was given a Proof of P-1 to

Proof of P-5, as follows:

1. Proof of P-1: Photocopy News website vivanews.com on Friday, 30

October 2009;

2. Proof P-2: Photocopied News website cekricek.co.id, on Friday, July 16

2010;

3. Evidence P-3: Photocopy Number 08 /Pid.Prap/2004/PN.Jak-Cellular, dated

14 June 2004 on behalf of Abu Bakar Ba'asyir;

26

4. Evidence P-4: Photocopied Act No. 8 of 1981 on Law

Criminal Event;

5. Evidence P-5: Photocopy of the Law No. 8 Act 1981 on

Criminal Event Law;

In addition, the applicant has also submitted three experts named

DR. Mudzakir, SH., MH., DR. Bernard I. Tanya, SH., MH., and DR. M. Sholehuddin, SH., MH., and had been heard under oath in the trial of 19 April 2011, which described the following:

1. -DR. Mudzakir, SH., MH. That problematic matters related to use

the authority of law enforcement apparatus conducts detention, especially which

with respect to authority based on concerns in

Article 21 paragraph (1) exists 3 concerns the law enforcement authorities can do

detention, that is first escape concern, second damaging or

eliminating evidence, third is a repeat of the criminal offense. That

things related to other reasons are hard conjects

committing a felony based on sufficient evidence, whereas which

was threatened with a 5-year prison criminal or a certain criminal offence.

normative is clear.

That the alleged crackdown on criminal acts based on the evidence

is sufficient, being a problem in the use of the restraining order.

is a harsh sense of reason, based on that evidence. Enough. In

the practice, the definition of a hard-thought and committing a criminal offence based on

sufficient evidence, has a very broad interpretation. That the proof that

is sufficient is that if the case is in the process of the court, there is a guarantee

that it will be fulfilled by its elements, and that

denied by others

That it is. means the prajudiciary has proven what it calls

as a proof against elements that according to the alleged words expert

that is a violent crime based on sufficient evidence,

should be if brought to the court has a bail later will be proven at

court

That the judge will decided that the elements were met and the defendant

could be proven in court, but it was viewed as a sentence too

27

incriminating and later there will be nebis in idem prajudiciary is already checking

a matter, and the court will examine a matter.

That in the philosophy of the spawning, detention is a form rather than

The fall of prison criminal sanctions and the cause of the mandatory restraint for

counts in prison criminal fallout.

That it should be taken into account as part rather than criminal

prison, which means part than a prison criminal. Therefore,

then in the pretrial stage should be sufficient evidence that

the accused has met the delik elements and if later it is processed

to the court there is a guarantee the defendant ' s certainty will meet, proven

meets the delik elements. So that if the judge takes the decision

is considering a prison term with a prison term that

plus a cut with his time of prison, philosophy

the identation can be justified rational. logic and legal arguments could

be justified. However, when the interpretation is proven to be sufficient only

conjecity, in meaning is a hard conjecment, with evidence

enough that does not lead to the fulfillment of the element, as a result of

being a dilemma in the law enforcement practices.

That the judge is faced in a difficult position, whether to declare

proven or unproven if the person is already detained, let alone the detention which

is long enough that the judge wants and does not want must

consider this period of captivity for a long time criminal prison.

How if the judge considers that the criminal's term actually

there must be a justice that the judge will decide is under the time

the prisoner. The judge was forced to break something over the prison term

plus one day so that there was a chance to be executed, and that was in practice

The law always happens that way, so that the prison term is always taken into account,

and if The judge considers that the prison's penal deposition is below

the standard of prisoners ' term, willing and not to want the judge to have to lead to

the term of the prisoner plus. It means that plus depending on the judge's appreciation rate, sometimes-

sometimes a day, two days, three days, and so on. That means the judge is already

getting tied up in the custody process.

That the legal problem associated with the issue of the alleged harsh reasons

commits a criminal act based on sufficient evidence or the initial evidence

28

which is sufficient and second is threatened with a minimum prison criminal 5

year or a certain criminal offence set in the last Article 21 paragraph.

That which becomes permasalability is in the legal technique drafting

especially in the politics of criminal threat in the bill and also in the

Act, in order for a person to be withheld then a criminal threat

is pronounced or raised to be 5 years.

That criminal threat 5 years or criminal threats in criminal acts

within the laws of the Law It becomes a design when people

consider getting arrested and some specific chapters

up to 5 years. The reason for not justiceis a maximum of 5

years, but more on the grounds that it may be withheld.

For example in the ITE Act the criminal threat was raised to more

of 5 years, one of the sub The part considered is the defendant

could be detained. Thus, criminal and political threat-threatening affairs

criminal, or political idation in the formulation of the Act outside of the Criminal Code

especially considering aspects could be withheld and could not be withheld. It is clear

set up such a criminal threat, contrary to philosophy

justice in the view and also of political or political in politics

idlers in criminal law.

That regarding the matter worries, according to the Expert is because there

escape concerns, damaging concerns, eliminating the goods

evidence, concerns repeating a criminal act, tends to be interpreted

the subjectives performed by The arresting officers, who gave the right or

the authority to conduct the detention.

That there is no clear measure about the accused will be running away. Evidence

that the defendant would damage or remove any evidence if

his crime occurred 5 years ago and was a document that

all had already been confiscated by the investigators ' apparatus. Whether or not to be tampered with or

removed the collected evidence, is a proof of

the documents, past documents, call it 5 years ago. That if

documents were confiscated, let alone one that should be able to damage the evidence and repeat

a felony. If a criminal corruption charges, the person is already detained

and then by his leader he has been declared to be expelled from his employee

or dismissed, whether or not he will repeat the deed again.

29

same as in the same post? Or at least repeat the follow up

the same criminal corruption that he is no longer holding office and

no longer dealing with the problems related to the country's finances?

That indications of such concerns tend to be interpreted

subjectively by officials or law enforcement officials who have

the authority to conduct detention. Next will I give

some other arguments.

That the Basic Law of 1945 there is a constitutional guarantee against

the independence of the judge. It is primarily contained in Article 24 that power

the judiciary is an independent power to host

the judiciary in order to uphold the law and justice. So I would like to give

affirmation, if a prisoner's term turns out to be a judge based on the principles

Justice in upholding the law turns out to be below, it must be decided at

under arrest.

That with the Subjective interpretation with parameters

and subjective measure may affect the use of power

independent in the running of the judiciary in criminal justice, in order

upholding the law and justice.

That in the Law Number 48 of the Year 2009 of Power

Judiciary, as well added one more in context in order to

the judicial powers mentioned in Article 1 of that, "are

the power of an independent state to host a judiciary in order

enforcing law and justice." Added in this context,

"Based on Pancasila and the Basic Law of the Republic of Indonesia 1945

for the establishment of the legal state of the Republic of Indonesia."

That in the court process we know KUHAP praduga is not guilty,

where the suspect in the presence of detention and processing is confirmed

The suspect is proven, for example caught hand and ascerable at

The court can be proven, due to the absence of the presumption of innocence as

legal asas, then the suspect is ostensibly guilty and contradictory

with the pretrial asas not guilty as the judge must declare

declare guilty so that by already being detained and must be cut

a period of captivity in Dropping a prison criminal.

30

That incarceration is taken into account as part of a prison criminal

which according to the expert withholding means punishing or dropping

criminal, and the use of such authority is carefully performed

for violating the principle of the fundament in the KUHAP referred to as

the presumption of innocence.

That the appropriation of the right to hold its meaning is the appropriation of the right or

the appropriation of one's freedom. The appropriation of a person's right is simply because

the decision of the official given the authority to hold.

That subjective interpretation to the official who has the authority to

that. The detentions are supposed to be officials who are authorized

to hold and can be deduced based on subjective interpretation by

officials authorized to hold.

That according to the witness there is no parameter which is clear to do

the containment process conducted by investigators for example, because of the existence of

concerns when to prove such concerns are nil so that

all could happen, because the judge also could not explains the interpretation

user of the authorized authority.

That while the suspect is already in custody, it may affect the freedom of the judge

to objectively disconnect and independent against the ongoing case

on trial. The judge will never criminate the defendant in a long-term

prisoner and prison term counts as a prison criminal. According to

Professor of Deter Sach Mester, "A brief prison criminal is a sia-

sia because the judge is only playing against the prison term." So practical

there is no such name as correctional and education or coaching

against the convict.

That everyone has legal rights, including the rights of independence that

is protected by the Constitution. The Constitution protects every one ' s rights,

including independence, and wealth wealth, and so on.

The rights of any person should not be done except are allowed by the constitution.

That the appropriation of the rights of each person is committed under the Act

based on the legislation.

That legal logic in the constitution, the appropriation of the rights of each person is done

based on the court ruling or the basic court approval

is the Act.

31

That there is a shift in the improvement of the incarceration in which the right of any person is not

may be usurpated by anyone. The appropriation of the rights of each person is

the detention may only be done if justified by the constitution.

The exception of the constitutional rights is done under the Invite-

Invite. The Act authorizes the enforcement apparatus

the current law is interpreted itself by the officials concerned.

That the use of the authority withheld from the legislation was carried out

based on the court ruling or Court approval. Usage

authorization is performed under a court ruling. Legal developments

related to the use of authority that deprive everyone of rights.

The use of the authority to conduct confiscation of goods is carried out upon permission

the court and any evidence of anything related to the issues

proof of the case.

That the use of the authority does a wiretap, tapping,

hearing, done on a court permit, without a court permit, not

is justified. The KUHAP governs that, and the use of the authority to

conduct the opening of a bank secret account done as well as the permission

the court so that there must be a court ruling or a designation

the court.

That the use of the authority commits detention is done as well

based on the court ' s permission Thus the use of authority and

detention is carried out under a court permit, without a court permission

under the ITE Act should not be carried out and means seizing

the rights of people for violating the ITE Act essentially a ruling

court or a court permit.

That in the shift of interpretation related to the use of authority

The original subjective interpretation is done by law enforcement that

is concerned, then now an objective interpretation is done by a judge or

court.

That arrest is the authority of the Investigator on an investigator ' s order,

investigators and auxiliary investigators, or authoring authority by the Invite-

Invite KUHAP or KUHAP.

That Investigator detention, Public Prosecuting, Judge on PN (Court

Negeri), PT, and the Supreme Court, its form is the authority.

32

That search investigator, the form of authority because of a facultative person

for being able to carry out a shakedown. The seizure was carried out by investigators

whose authority or form of authority. The mail check

is done by investigators, but the form is the right.

That in the KUHAP is mentioned, "For a mail check, open a letter,

the post, and so on, the investigator ' s right."

That according to the expert, detaining is the right of investigators or the right of the officials of the apparatus

law enforcement. According to the expert it is not a right, but is

that authority and authority should be used, if not too

need not be used and the authority is responsible.

That the shakedown must be over Local District Court's permission.

The foreclosure must also be a court permit, open, inspect, confiscate

mail, special permission from Chairman PN's court but oddly here is permission

special, whereas here investigators are entitled open.

That seizure of mail or secret writing of the special permission of Chairman PN or

approval of the parties with the letter in question.

That 2008 Act No. 11 of the ITE (Information and

Electronic Transactions), mentioned Section 43 of the paragraph (3) " Forecaster and/or

seizure of the electronic systems related to alleged criminal acts

it must be done at the permission of the local court speaker ", paragraph (6),

" In terms of making arrests, restrainers, investigators through the prosecution

the general is required to request the designation of the local state court chairman in

a time of 1x24 hours. "

That the KUHAP bill in its development of authority does

the detention is the same as the current KUHAP. Stage arrest

The inquiry is distinguished to two namely preliminary stage detentions performed by

the investigator or the public prosecutor who carried out the investigation act without

must request the commissioner's approval, and the following stage extension

containment, done with the approval of the judge commissioner.

That the investigator's authority is given only 2 to 5 days to

conduct the detention and stage of the determination carried out

the court, The detention of the proceedings proceedings was carried out

by the judge handling Matter.

33

That the conclusion of the core KUHAP is that the appropriation of a person's right

to be withheld must be a judge or court agreement, not based

interpretation of the subjective interpretation committed by the owner

the authority or mandate of authority granted to the official

is concerned and restricted its time is 2 days up to 5 days.

That the bill of the Criminal Code developed another alternative sanction as an option

place the sanctions a prison criminal as an option if use of type

Other sanctions are judged not will be reached.

That the bill of the Criminal Code provides an alternative-alternative criminal penalty, criminal action,

even if it is necessary that a particular case, an apology could be resolved outside

the court, should not be processed in court.

Even in a lifetime prison, if in the bill of the Criminal Code

later it could be changed to a long time and a long time it would be

could be reduced and could be released or be released. Even a dead criminal could be

converted to a prison criminal, after being converted to a prison criminal and

converted to a certain length of time. A certain time in turn could be

released, released.

That thought in the Penal Code bill now leads to not

using prison criminal sanctions, as far as possible to avoid

use Prison criminal sanctions.

That the meaning of the use of the prison term should also be restricted to such a

that it may not lead to a judge as it has been given

that argument is for dropping the prison criminal.

That the development of the thought of the idlers in the Criminal Code bill

developing another type of criminal as an alternative to the prison criminal sanction.

The detention of the suspect, the defendant, is obliged to be reckoned in dropping

a prison criminal. Suspect, defendant, detained herding or influencing

principle of independence or freedom of judge in setting it up then

defendants guilty of innocence, accused of being forced to be sentenced to death

prison only because of him have been detained.

That in the age of preoccupation or colonial times, detention

carried out by or with the basis of IR 'Inlandsh Reglement'. This is incredible

bad or bad law once. But then corrected through

Herziene Inlandsh Reglement and in the time of independence were already using

34

An event legal renewal process became HIR, but then when we

independence entered the State Basic Law of the Republic of Indonesia Year

1945.

That basic containment HIR and KUHAP there are shifting refinement

containment under the Constitution of the Republic of Indonesia Basic Law

Year 1945. When an independent period of the Basic Law of 1945 which we

used, then there was HIR and not Strafvordering which was enacted 1945

until 1981 the birth of the KUHAP and then 1981 to 2011 it was published

KUHAP

Act The Constitution of the Republic of Indonesia in 1945 has

changed the change paradigm of HIR into KUHAP is the masterpiece

for changing mindset from one paradigm thinking law of the event

that one to the paradigm think of the other event law, which is based

to the Basic Law of 1945, then KUHAP is as a masterpiece

Great.

That the Constitution of the State of the Year of 1945 is amended,

interprets the KUHAP based on a futuristic interpretation and also

interpretation as the dynamics of the development of the law, or the term "

it is said to be a progressive interpretation.

That the provisions of the KUHAP should be interpreted on the basis of the Invite-

The Constitution of the State of 1945 which has been amended. The same should

be done against the use of legal authority, the authority to

conduct detention.

That use of authority as contained Article 21 paragraph (1)

must be adjusted to the development of the law which taking place in the Republic

This Indonesia because the constitution is amended.

That on the basis of that, then the current interpretation is in the language

KUHAP must be amended which leads to the amendment of the Act

Basic 1945. The Interpretation must be matched with the development of the invite-

invite that occurred.

That the 2 chapters are potentially subjectively interpreted, according to

the subjective view of the law enforcement apparatus authorized by

legislation to conduct containment. The subjective interpretation

that uses the subjective parameter does not have an indicator.

35

clearly, has no firm indicator, and has no definite indicator

regarding the legal reasons of holding a suspect or defendant who

leads to the legal rights of the suspect, the defendant, who is protected by and

guaranteed by the Basic Law of 1945 is violated, that is the equation

the position in front of the law, because the interpretation of the escape, does not escape

self-dependent, or subjective interpretation of the apparatus that has

authorize restraint. This gave rise to the treatment of discrimination and

there was a legal uncertainty.

That there was a subjective interpretation of the two chapters as well

potentially the use of arbitrary authority, use

arbitrary authority or misuse of authority in

conducting detention.

That legal testing of his arrest through the pretrial does not warrant

objectivity of the use of the authorically interpreted authority Such subjectives

due to legal norms as contained in the section Tested,

formulated, without using the formulation of legal norms with

using clear and unequivocal parameters.

That the Judge examined the validity, the validity of the detention,

using the normative parameters that subjectively interpreted it,

so it is difficult to establish the validity or

the validity of the detention. Judges tend to follow the subjective interpretation

conducted by law enforcement officials who have the authority to

hold back.

That a judicial or prejudicial disconnect justifying the use of

the authority of withholding through such subjective interpretation is done

over and over again and may be said to be a fixed jurisprudence,

so that it has become a legal norm that is the basis of law in

a pretrial or middle court practice. On the basis of consideration

the argument, meaning the use of the authority to conduct detention

is entirely a wewang discretionary by the law enforcement apparatus that

has the authority to conduct detainment.

That legal practice that has weakened to remain a fixed jurisprudence

can be qualified as a legal change in practice

law enforcement. Therefore, the refinement of the containment contained in

36

article a quo is what is done in law enforcement practices or

fixed jurisprudence.

That interpretation is so incompatible and contrary to nature

thoughts and developments the law is now, after

amendment of the Basic Law of 1945 which is the direction of interpretation

the law of law enforcement and justice based on the Pancasila

is very concerned with the protection of the law. against basic rights or

human rights.

2. -DR. Bernard L. Tanya, SH., MH.

That phrase in Article 21 of the paragraph (1) of the special KUHAP " In the event

circumstances raised concerns that the suspect or defendant

will escape, damage or remove any evidence or

repeat criminal conduct. " and second, explanation of Article 95 paragraph (1)

KUHAP, especially concerning other actions that are in its explanation

bounded by other measures is a loss that

due to the admission of the home, search, and foreclosure not

according to the law, including detention without reasons are the detention that

longer than the criminal was dropped.

Thus, the legal issue to be discussed in the Expert opinion is

two. First, whether against the phrase Article 21 paragraph (1) KUHAP, in particular

the phrase 'in the event of circumstances which raised concerns', needs

constitutional interpretation by the Constitutional Court in order to prevent

abuse of authority by law enforcement. The second, whether

explanation of Article 95 paragraph (1) of the KUHAP reflects the principle of fair law

and constitutional justice.

That Analysis on Article 21 of the paragraph (1) KUHAP, highlighted aspects

is a theory problem, a philosophical problem, and a practical problem, from the phrase that

has been mentioned, which has been shown to have opened up the probability of occurrence

misuse of the authority in law enforcement.

Some of the facts about this have ever happened in practice;

First, incarceration discrimination, there are those detained and there are not

detained without interjectively acceptable rationality. Which

second, the apparatus determines itself under arrest of a person. Third, not

there is an objective referral why someone is detained and others are not. That

37

fourth, appears extra yuridis reasons like uncooperatives, often

meeting press, etc.

That there needs to be more accountable, given in KUHAP

not there is a norm that gives a more accountable of

the weakness of the phrase, then needs a constitutional interpretation by the Supreme Court

The Constitution to end the dissent of the interpretation in practice, for the sake of its loan

A fair legal process in criminal justice.

That the Court went through the matter Testing Act Number

018 /PUU-IV/2006, it once gave an opinion that detention by investigators

or a public prosecutor should be based on sufficient consideration

rationally, not with a detention of a detainment. only didasari

subjective desire alone from the investigator or the public prosecutor.

That in reality, the Court ' s opinion is not necessarily followed by

authorities. Hence the syndrome and phenomena and

terms that are extra judicial, such as uncooperatively and often meet

press,

That the phrase Article 21 verse (1), ' disavowed the legal nature of the criminal event " and

any laws of criminal events in a democratic legal state, built upon

3 controls, that is First, the criminal judiciary is a system that

comes with great power to prosecute. Second, the rights of a

individual are not lost and must be respected in the entire legal process. Third,

any power has an opportunity to abuse.

That the three basic controls of the event law in the legal state that

democratic, therefore, the principle of the law of events in a legal state that

democratic is power constrained and the procedure is determined.

That theoretically KUHAP as the law of the event is the norm that

controls the actions of the law enforcement apparatus to be unequiptive. It is

the norm for the apparatus in running rigid, the authority demands

that it owns in the framework due process.

That the show's legal norms, in addition to being used as a measure for

assessing the use of the use of the authority of the apparatus against the people, as well

at once in order to regulate one's rights line that should not

be violated and violated in legal proceedings.

38

That in such a law the criminal event law includes KUHAP

has normative critical properties for 2 functions: first, preventing implementation

unrestricted power of the apparatus, cause power tends to be corrupt.

second, the authority of the apparatus to prosecute any person who violates

is allowed within the limits specified in rigid by the Invite-

Invite.

That protecting functions and instrumental functions, according to Nico Keyser,

relates to the necessity of a guarantee of adequate procedure and

for sure, in order not to happen to the authority. The two functions that

mutatis mutandis are reflected in due process model, demanding caution

apparatus in the judicial process.

That for due process model, omission is a inevitability.

Even omission or human error is something that is inherently in the self

humans, no exception to the most professional law enforcement apparatus

though. This is based on this assumption, then due process model declined

informal fact finding process and instead relied more on formal

adjudicative, preferred formal adjudicative, as it all process

Criminal justice must be made step by step through normative process

that is strict. Second, as far as possible avoidance of mechanism error

administration. The third, preventing a maximum of cursive pratic. Fourth,

The execution of the force should not be arbitrarily determined or voluntaristic

unilaterally by the apparatus. Fifth, the judicial process must follow the procedure

normative and not follow the will of the legal executor.

That the opportunities given to the apparatus to self-define the phrase

are highly elastic in the Article 21 verses (1) which are the circumstances that elicits

potential concerns harm the normative critical function of the event law

criminal. As evidenced by some cases,

That the phrase Article 21 points second, is evident or open to negative perangai

the wealth. This is the second point of my note regarding Article 21 of the verse (2) in particular

the phrase 'states that raise concerns'.

That the most basic lesson we can be peeking from all travel

the political civilization is that power must be limited. This is what is

base and is one of the heart of the mind-making of most filosof

and the social scientists of all time.

39

That power is accepted by its presence, but must be controlled to not

continue to produce human and humanitarian disasters. In

an expression of that need Plato instructs the concept of philosopher kings.

As with the teachings of Confucius, while Plato formulated

a must to limit power through moral concepts leadership.

This is a formula that is now known as ethics or morality.

Power. The moral authority of the diandafish can function as

the power of social self control of the power of power. But reality

proves the past great power to be tamed only with

moral or ethical;

That in the development in the modern nature, the restriction of power

is expressed in the varying raut. At the first level, power

is believed to be controlled by power anyway. This became the foundation of the division

or the separation of powers as revealed in the concept of Trias Politika or

Check and Balances.

That it was the foundation that legalized the idea of distribution

The power that solidiates the differentiation of the structure and specialization of functions

in the modern bureaucracy. All such power restriction ideas

based on a claimant that the source of doom that

derived from power lies at the degree of power concentration that

excessive or absence of limitation rigid against that power.

Hence it must be penalised and strictly limited.

That power built with a million noble dreams could exchange

the roar becomes a permanent horror, when instinct The authorities-

wappel holding him in an infinite direction.

That Article 21 phrase (1) that is so elastic potentiyl becomes a space for

abuse of power and manipulation of the interests of the regent

and to injure a person's constitutional right is in this case

or The defendant.

That the authority granted to the apparatus to determine itself

the meaning of the circumstances that elicits a potential concern elicits the rights

the suspect and the defendant. The rights of citizens who are guaranteed a constitution such as

in Article 27, Article 28, Section 28D, Article 28G, Article 28I paragraph (2) Invite-

The Basic Law of 1945 also belongs to either a suspect or a defendant

40

will be easily stepped over if there is no clear and intersubjective measure

in assessing the circumstances that raised such concerns.

That the true legal norm is the clear objective norm of the measuring device,

is not emotive based on flavor.

That the phrase raises concerns is emotive and no tool

a clear measure.

That this picture of uncertainty is almost certain to happen in an assessment

against the circumstances that raised concerns in the phrase Article 21 of the paragraph

(1) KUHAP, hence for the sake of due process in the implementation of the effort

force, in particular in terms of arrest and arrest, then so

it takes a constitutional interpretation by the Court that gives boundaries

or Clear and measurable indicators, for example, certain action facts

that are in the state, for example running away, eliminating

evidence, repeating felon, and so forth. Or to

prevent subjective unilateral considerations, then in terms of detention

need to ask for permission or court assignment.

That the needs of those two things are very significant in context

the constitution and the context of the constitutionalism that is transitalized on fundamental rights,

democracy, and rule of law.

That MK as a constitutional watchdog should ensure that power

the country is not arbitrary and the rights of the people are protected. Only with

once constitutional justice actually materiates, the people have

a guarantee that the government upholds the people's rights as a right that

cannot be harassed.

That Article 95 paragraph (1) KUHAP, according to the expert, first regarding the explanation

Article 95 paragraph (1) KUHAP, explanation of article a quo discourage justice, law

fair, and constitutional justice.

That principal interest in fair law is not an imperative

punting any offence, but rather Of that, each loss must be replaced.

commensurate This principle is already accommodated in the KUHAP, the state

given the authority broad enough to prosecute any person who

violated. At the same time, each person has the right to demand damages

for any unlawful or illegal exercise of authority, as

is reflected in the norms of Article 95 of the paragraph (1).

41

That special regarding other actions, the Police Act, Article 16

paragraph (2) of the letter e, calling the inquiry action, the inquiry that

is executed if it is qualified not to conflict with a rule.

the law, in compliance with legal obligations that require that action

is done, should be reasonable, and included in

the environment of office, a reasonable consideration based on the circumstances that

forces, and last respect for human rights.

That construction Act on other actions are all

actions necessary within the scope of the investigation and the inquiry that

meets 5 terms above. That means the law gives

considerable authority to the state to take action that

is necessary in prosecuting any violation.

That according to the expert, should also the legislation guarantee it broadly.

the right of each person to demand damages for any loss suffered

due to the execution of an unauthorized apparatus authority.

That explanation of Article 95 of the paragraph (1), on one side the norm Article 95 paragraph (1)

opens the space justice to sue for damages against execution

unauthorised authority, However, on the other side, the explanation of Article 95

paragraph (1) does the restriction that it causes

injustice. The rights of the disadvantaged people are restricted, it

causes anomalies.

That the criminal event law is a normative critical position against power,

where power is controlled, supervised and the rights of the people are guaranteed.

That The main principles of criminal law such as legality, lex certa, equality

before the law, presumption of innocence, compensation and rehabilitation, are

the most explicit form of normative critical nature to power. The principle

is at once a state commitment to protect the rights of any

a person snaggled in a criminal case. This is why due

process of law is so important in criminal justice.

Into due process of law according to Tobias and Peterson are guarantees

constitutionality for citizens to be protected from action arbitrary

law enforcement apparatus. That is the heart of the due process of law.

That rule due process of law, not only limited to the application of rules-

the rules of event law are formally legalistic, but more than that.

42

The conceptual contains a commitment to guarantee the rights of a citizen

country.

That explanation of Article 95 paragraph (1) of KUHAP does not reflect the principle

fair laws and constitutional justice, so it must be stated

inconstitutional.

3. -DR. M. Sholehuddin, SH., MH.

That Article 21 paragraph (1) of the Criminal Event Law, among practitioners

laws are often interpreted by terms of reason or condition of detention

subjective, so that the incarceration carried out as if deemed legitimate if the

meets subjective detention terms, as set out in Section

21 verses (1) KUHAP, while actually in the norm Article

21 paragraph (1) KUHAP is the need for detention, not the fault of detention,

as the sentence of the detention is already set or set in Section 21

paragraph (4) KUHAP;

That Article 21 verse (1) of the KUHAP cannot stand alone, and nothing

connectedness with the subsequent verses, especially in verse (4). This

is attested on the phrase at the beginning of the paragraph (4), i.e. 'the containment

of that'. The word 'it' in the structure of the Indonesian language sentence designates

on the preceding paragraph. This is what suggests that between Article 21 of the paragraph

(1) KUHAP there is a link to the next Article 21 of the verses, because

it is actually Article 21 of the paragraph (1) of the necessity of

the detention, not the fault of the detention, Because of the fact that the incarceration is in

Article 21 of the verse (4).

That if the verse (1) and verse (4) are connected, then the correct understanding

is according to the sentence or syntax such as, against the suspect or

the alleged defendant committed a criminal and/or trial

and a grant of aid in a criminal offense to a criminal

prison five years or more or committing a criminal act as

means beyond, may be viewed as necessary for detention;

That when Possible suspects or defendants will escape or

taming, Remove the evidence, or repeat the criminal offense. But

The restraining act remains to be based on the initial evidence

sufficient that the suspect or defendant has allegedly committed the following

criminal as set forth in Article 21 of the paragraph (4).

43

That if combined understanding of the meaning of article 21 of the paragraph (1) and Article 21

paragraph (4) is indeed supposed to be merged because it is syntaxable to the

of the sentence relationship. Thus, the actual provisions of

in the Penal Code of detention, do not recognize subjective detention terms

or objective incarceration because of the fact that the KUHAP is set

the containment problem is limitative and It's determined the limit.

That boundaries, consisting of, first, containment only

given to investigators, to the public prosecutor, and to the judge, which

is limitative and the form of authority granted by law

is discretionary. This is evidenced by the phrase in Article 21 of the paragraph (4)

KUHAP, 'the containment can only', where the word 'can' here indicate

granting privileges discretionary in the case of containment,

so the granting of the authority is discretionary. Then that

second, the detainment that can be done is only limited to suspects

or defendants committing felon and limitless, 5 years more

and/or committing a criminal act as specified in provisions

legislation. Then, the third, the detentions can only be done

against a suspect or a suspected defendant committing a criminal offence

based on sufficient evidence and that fourth, authority

discretionary to conduct such detentions, limited to suspects

who are likely to do escape works,

damage the evidence, or repeat the criminal offense;

That if one suspect or defendant does not meet any of the

criteria of the possibility, then The imprisonment is considered invalid, because

the phrase 'in terms' set forth in the formulation norm Article 21 paragraph (1),

according to the variety of languages can only be used for

states a possibility, a state that can be possible

or not possible.

That phrase 'in terms', when looking at a variety of language and engineering methods

laws, every sentence, in the chapter there is a phrase 'in terms of',

shows or suggest a possibility, a circumstance, or

a condition that may occur or unlikely to occur.

That more clearly the form of investigator ' s concerns, the public prosecutor, or

the judge who will conduct detention, should not be against the deed-

44

deeds which the three criteria are likely to be, and beyond that

may form such concerns arise but must be rational,

as ever in consideration of the Constitutional Court about

about containment.

That in criminal event law, asas legality is very strict

enforced, in contrast to the principle of legality in the criminal law.

That in the RRC country whose country is not adhering to asas legality in

the criminal law of the material and also adheres to the analogy in law criminal

materially, but in its criminal event law, it retains the

strictly asas of its legality. Whereas countries in the system

Anglo-Saxon and Continental laws remain asas legality in event law

criminal exercised or done strictly, in the sense of detention

there is actually no detention Subjective, objective incarceration, which exists

The detention is limitatively set.

That interpretation or misinterpretation of Article 21 of the paragraph (1) of the KUHAP

is due to two things, first, a misconception of the variation

laws, so that it does not or does not understand

variety of the laws will be incorrectly interpreted,

for actually the actual method of techniques

must be used and already exists;

That the law is the language that very pelik and

since it is mastery of the language variety to be important, in this case

Indonesian, because if its use of the Indonesian language

is not good and true, then the communication to be delivered by the contents of

that section becomes wrong.

That Section 21 paragraph (1) KUHAP, is being interpreted or interpreted incorrectly,

because it is supported by incorrect sentences in the sentence structure or

Indonesian language syntax. Article 4 is to rise to Article 1, so

Article 21 is not to be established itself;

That Section 21 paragraph (4) is limitatively of the containment being raised to

above being a paragraph (1), due to the first limitative Times, and already exist in

the concept of the KUHAP bill;

That Article 21 of the paragraph (4) is now raised to Article 21 of the paragraph (1),

only in the Bill of the Criminal Code because it is indeed the structure of the sentence is not

45

incur misinterpretation, as it is during this section 21 verse (1)

KUHAP is considered to be a stand-alone interpretation, arising

subjective terms of detention, whereas in fact it is not So.

That Article 21 paragraph (1) is only the need for detention, not

the return of detention;

That regarding the explanation of Article 95 of the paragraph (1) is also gramically,

first, the sound of Article 95 of the verse (1) is the suspect, the defendant, or convict

reserves the right to charge for damages for being arrested, detained, prosecuted, or tried,

or subjected to another act.

That the other phrase of action does not stop. If it stops then it will

elicits a misinterpretation. But there is a comma, for no legitimate reason

based on the legislation of the sentence structure.

That the sentence in Section 95 of the paragraph (1) is composed of subject matter, predicate, object,

caption circumstances. Without a valid reason under the law

is the description of the state that serves to explain. As such, if

there is another explanation for Article 95 of the paragraph (1) it is grammically going to

incur a contradictory understanding with its original norm with

Article 95, since there is already an explanation, unless it is not there is a phrase without

a valid reason.

That meaning is subject to another act, there is no need for explanation, because he

is already described without legitimate reason and the legal interests are to

be protected in Section 95 of the paragraph (1) is a matter of arbitrary occurrence

or abus de droit, or abuse authority (detournement de pouvoir)

or wederrechtelijkheid (against the law). So an arbitrary act of apparatus, which abuses the authority, is against the law,

the interests of the law that will be protected in order not to happen so.

That in other words, if Article 95 is clear then described,

which is a limitative form, then there will never be a legal interest

that is to be protected by the norm Article 95 paragraph (1) because of the interest

the law to be protected by Article 95 of the paragraph (1) is the deeds that

arbitrary, who abused the authority, that against the law

of the apparatus, which gets the discretionary authority regarding the

incarceration or the other forced attempts.

46

That there is a warning of criminal and criminological legal experts ever

read expert in the book, "The Other Side of Criminology." Prof. Peter

argues, "The limitations of end control over, the powers and the state

constitute the royal juridical dimensions of criminal law. The juridical task of

criminal law is not policing society but policing the police. " Restrictions and

state power control is the duty of judicial juridical from

criminal law. The duty of the criminal law is not merely to regulate society,

but rather to govern its own apparatus.

[2.3] A draw that against the request of the applicant, the Government

provides the following description:

That The applicant's request or legal position in

is essentially related to the chain's eyes or related to the process

law enforcement or the " Law invigorating ', meaning that what is natural

by the applicant is related to the practice order of law enforcement.

Therefore, the Government is aware that it is related to legal standing

in general It is tentative and is the Court's authority to

assess it. Whether the applicant has a legal standing or not, then

The Government is giving up fully to the Constitutional Court for

assessing and considering whether the applicant has legal

standing or not, as defined in Section 51 of the paragraph (1)

Act No. 24 of 2003 on the Constitutional Court, nor

based on previous Constitutional Court rulings that have been

made jurisprudence by Constitutional Court.

That against the material charge norms are are mohoned to be tested by

The applicant, the Government can provide an explanation as follows:

1. That the applicant has a provision of Article 21 paragraph (1) and Section 95

paragraph (1) and its explanation, KUHAP, which is considered to be contrary

with Article 27 of the paragraph (1), Section 28D paragraph (1), Section 28G paragraph (1), and

Article 28I of paragraph (2) The Basic Law of 1945, according to the Government is

is not precise, and is not true. In addition to the applicant 's argumentation of the postulate

that was announced, it is not clear and blurred, but the other side

The applicant also does not detail precisely and complete the legal basis

the onset of the applicant' s constitutional rights those;

47

2. That in his application, the applicant only stated the provision

a quo in contrast to some of the articles in the Invite-

Invite the State Basic of the Republic of Indonesia in 1945 and not

describe in detail in the what, and how the form

contradicted, or the contradiction occurred. According to the Government,

the cancellation of human rights, or any citizen, may

be possible provided, or limited to the provisions of the invite-

invite, i.e., as defined in Section 28J of the paragraph (2) which in the

The point is that the restriction is possible, in order of respect

the rights and liberties of others, provided that it is set up with an undrased invitation;

3. That if the applicant feels his constitutional rights are restricted that

in this case a detention by the Law Enforcement apparatus, then it

so according to the Government has been in line with the constitution's mandate, and

hence it is not conflicting with the Basic Law of 1945;

4. That at the base of the society cannot be separated from the law,

as the philosof Cicero states

"Where there is a society, there is law", therefore the law

is required. as a means to organize the society itself.

5. That the primary purpose in the form of Act No. 8 of 1981

on the Penal Code, in addition to replacing the old laws of criminal law

, as contained in H.I.R., also in order

to form unification National Criminal Events Law that corresponds to

Indonesia ' s soul and view of life, which further depanes

aspects of assurance and protection against the implementation of fundamental rights

humans and protection against the harkat and Human dignity

as it is a legal state owned by it;

6. That the Law on the KUHAP, as it is known in section

first or in the first public explanation, it is said that

against the suspect or defendant to be checked immediately, then

is given notice what is submitted or devolution

as soon as possible to court, get legal help, and

get a family visit. That suggests that the KUHAP

has appreciated or carried out human rights protection

and protection against the harkat and human dignity itself.

48

7. That the provisions set forth in Article 21 of the paragraph (1) KUHAP,

is one example that the provisions in the KUHAP have

declassified aspects of guarantee and protection against rights

human rights because to conduct detentions against the suspect

or The defendant is required of strict terms and must

pay attention to the subjective conditions and objective conditions of the Suspect

or the defendant:

8. That Article 21 of the KUHAP should be understood in its entirety and

comprehensive, not partial and dismembered as things

is set up in the provisions of Section 21 of the Criminal Code as a unit

of thought or decision who was born on a particular thought or what we

know as original intent of itself.

9. That to be able to make a restraining order against a person is suspect,

or the defendant, based on this required strict enough terms.

It is based on the thought that a suspect or defendant who

is being held in custody. adversely affects itself, family, or

its social environment.

10. That of the provisions of Section 1 of the paragraph (1) KUHAP, been examined and

was snapped up by the Constitutional Court with Amar Putermination, "Rejected

the applicant ' s plea", as the applicant already

convey that the Mayjen is being moveed. -Purn. TNI Suwarna,

as in the Perkara Register Number 018 /PUU-IV/2006, the date

20 December 2006;

11. That the contents of the ruling were among others, as in the provisions

weigh that against the applicant stating that the Article

21 paragraph (1) of the KUHAP is considered to be contrary to Article 28D of the paragraph (1)

The Basic Law In 1945, it was under consideration,

The court argued that the existence of Article 21 of the paragraph (1) KUHAP,

it cannot be released with Article 77 of the KUHAP itself. Section 21

paragraph (1) KUHAP, from the aspect norm is sufficient to bring together two

interests, i.e. the common interest to enforce order as well as

the interests of individuals who must be protected of human rights. The

thing is further reinforced with prejudicial links, as

is set up in Article 77 of the Criminal Code itself.

49

12. As for the practice of this time in the application of Article 21 of the paragraph (1)

and Article 77 of the KUHAP, which is seen as less protecting the rights

the defendant or suspect is in the realm of application of law

or implementation rather than the norm itself, and not the problem

the constitutionality of the norm itself.

13. That in accordance with the provisions of Article 60 of the Law No. 24

of 2003 on the Constitutional Court. Thus, it is said that

against the charge material the paragraph of the section and or the passage in the Act

which has been tested cannot be redirected the retesting. Although

later in Article 42, the Constitutional Court Rules that

says that the charge material that has been tested and is motried for

is tested to the Constitutional Court may be repleated, the applicant's origin

can Proving the existence of different constitutionality losses

than the application of the former applicant.

It must prove the applicant in the trial

14. That matters related to the remedies as defined in

in Section 95 of the paragraph (1) KUHAP, as well as the explanation. According to

the government, its settings have been very clear about the limitation of things

that will be given restitution and rehabilitation, so it is very not

right if the applicant is pleading for damages but the things required

by the provisions of Article 95 paragraph (1) of the Penal Code and its explanation

has not been met by the applicant itself.

15. That the applicant considers the act of arresting and detaining

is the authority of the police apparatus but the act of arrest, but

the way or how the deed captures the applicant in a way that

stops and breaks the glass cars have no reason nor

basic legal basis at all. While the applicant is in his request

explains that when the applicant will be made an arrest, the car

The applicant and the applicant's car are already herded into

the courtyard of the police station in Banjar City. But when it was already in

within the police station page, all the passengers in the car were not

acting cooperatively when Officer Densus 88 asked to open

the car door. Later, the passenger in the car instead locks and

survives in the car even though it is already called in for the car exit,

50

so that Officer Densus 88 directly took the repressive action accordingly

the procedure and the manner of breaking down, in a way that was to break the window glass

the applicant car and force the entire passenger to exit the car

which is in the opinion of the officer because there is concern that

the person in the car has a weapon or other equipment

that is compromised and this is according to the officer because that

is dislocated to The applicant is the matters related to

application of Act Number 15 of the Year 2003 It's about eradication.

The Criminal Terrorism. This is, of course, as it is known,

how the model of arrest was made by the police officer,

The applicant has already committed acts or legal efforts

by conducting a pretrial in Court Country;

16. That based on the above explanation, the Government is requesting

The Constitutional Court examining, severing, and prosecuting

requests for testing the provisions of Article 21 paragraph (1), Section 95 paragraph (1)

and its explanation, Law No. 8 Year 1981 on

Criminal Event Law, may provide a ruling as follows:

Declared that the applicant does not have a legal standing

as described above,

Declared that the it is a series due in the

domain of practice or implementation of the affirmation laws.

Reject the Applicant testing request entirely or at no-

charges that the applicant's testing could not be

received;

Received the Government's description as a whole.

Stated Article 21 paragraph (1), Article 95 paragraph (1) and

explanation, Act No. 8 of 1981 on Law

The Criminal Event does not conflict with the provisions of Article 27 paragraph (1),

Article 28D paragraph (1), Section 28G paragraph (1), Article 28I paragraph (2) Invite-

Invite Basic In 1945. Nevertheless, if the Constitutional Court

The Constitution argues otherwise, please a wise ruling and

at its discretion;

[2.4] Draw that against the applicant, the House of Representatives

The people do not give a Oral or written records.

51

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

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

the trial, which is an inseparable unity with

this verdict;

3. LEGAL CONSIDERATIONS

[3.1] weighed that the main legal issue of the applicant's plea was

regarding the materiel testing Act No. 8 of 1981 on

The Law of the Criminal Event (subsequently called KUHAP) Article 21 of the paragraph (1) and Article 95

paragraph (1) and its Explanation of the Constitution of the Republic of the Republic

Indonesia in 1945 (subsequently called UUD 1945);

[3.2] weighed that before considering the subject,

The court of law. The Constitution (next called the Court) will consider

first The following things are:

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

b. legal (legal standing) applicant;

Against those two, the Court argues as follows:

The authority of the Court

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

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

The Constitution as amended by Act Number 8 of the Year

2011 on Changes to the Law Number 24 Year 2003 concerning

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

70, Additional List of State of the Republic of Indonesia Number 5226, next

called Act MK), Article 29 paragraph (1) letter a Law No. 48 Year 2009

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

2009 Number 157, Indonesia's Republic of Indonesia Number 5076),

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

the final verdict is final to test the Act against

Constitution of 1945;

52

[3.4] weighed that by the request of the applicant regarding

the materiel test of the Act against UUD 1945 then the Court

authorized to prosecute a quo;

The Occupation law (legal standing) Pemapplicant

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

act as the applicant in testing an Act against

The 1945 Constitution is those who are assume the rights and/or authority

its constitutionality is harmed by the enactment of the Act to which

testing, i.e.:

a. Individual citizens of Indonesia, including groups of people

have shared interests;

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

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

which is set in Undang-Undang;

c. the public or private legal entity; or

d. country agencies;

[3.6] Menbalanced also that the Court since the ruling Number 006 /PUU-

III/2005, dated 31 May 2005 and the No. 11 /PUU-V/2007 ruling, dated

20 September 2007 as well as subsequent rulings have been establish that

rights and/or constitutional rights losses as specified in Article

51 paragraph (1) The MK bill must meet five terms, namely:

a. the rights and/or constitutional authority of the applicant given by

Constitution of 1945;

b. the rights and/or the 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 and actual or at least a potential that according to reasoning

which is reasonable is certain to occur;

d. Causal link (causal verband) between intended losses

by the enactment of the test-moveed;

53

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

the rights and/or constitutional rights losses such as the postured did not

will or no longer occur;

[3.7] Draws That Thus for a person or a party

may be accepted as the applicant in the case of testing the Act

against the Constitution of 1945, according to the provisions of Article 51 of the paragraph (1) MK Act, person or

the intended party must be:

a. explain the qualifiers, namely whether as a person of state

Indonesia, the unity of indigenous law, legal entity, or institution

country;

b. the rights and/or its constitutional privileges, in the qualification

as are referred to in the letter a, as a result of the invitation-

Invite to the testing;

[3.8] It is balanced that the applicant is a person nationals

Indonesia who feel disadvantaged in its constitutional right, due to the enactment

KUHAP Article 21 paragraph (1) and Section 95 paragraph (1) and its Explanation;

That the applicant is feeling aggrieved for its constitutional rights to

obtainthe protection and certainty of the law, as well as equal treatment in

the presence of the law as guaranteed in Article 28D paragraph (1) of the 1945 Constitution.

It was a concrete loss resulting from the actions of the Republic State Police

Indonesia who arrested the applicant like a fugitive from a big villain,

that is by breaking the glass of the car that the applicant has in mind, continuing

with the applicant ' s hand being pulled by force, and mugged

a long barrel gun while saying "I shoot you". According to the applicant

such action is an act of a public power deviation, not

a personal act that is viewed only as a civil action, and not also

a personal criminal action, because of the actions of the individual's actions. individual, it must be

has been ushered in and given strict sanctions by the Republican State Police Institution

Indonesia. Against the applicant is also conducted detention and extension

incarceration performed without measurable objective reasons and

is highly dependent on the subjective opinion of the investigator or the public prosecutor.

According to the applicant the action has received legal justification

with the provisions of Article 21 paragraph (1) of the possible KUHAP

54

The investigator or the public prosecutor commits a detention or extension

detention for subjective reasons, although such action is done

exacting and violates the rights of the suspect secured by law. In addition to

that, the applicant may also be unable to conduct a pretrial or pronoun lawsuit

a loss to the state apparatus that exercised its authority

the exposition that violates the constitutional rights of the applicant, as it is Under Section 95

paragraph (1) of the Criminal Code that does not allow the applicant to submit a change of charges

A loss to the actions of an investigator or a public prosecutor in violation of the law.

Based on that fact, the applicant considers the right Its constitutionality to

obtain protection and legal certainty, as well as the treatment that equal in

before the law as set in Section 28D paragraph (1) of the Constitution of 1945

lhangar;

[3.9] Draw that under the Applicant, according to

The court, the applicant is eligible for legal status (legal standing)

so that the applicant may apply for a quo;

[3.10] A draw that is due to the competent court of prosecuting

a a quo, as well as the applicant has a legal position (legal standing)

then the rest of the Court will consider the subject of a plea;

The subject of a request

[3.11] weighing that the applicant on the cigarette implores the testing

KUHAP Section 21 paragraph (1) and Article 95 paragraph (1) and its Explanation of

the 1945 Constitution, each of which states:

Article 21 paragraph (1)

" Detention order or continued detention is performed against a

suspect or suspected defendant committed a criminal offence based