Key Benefits:
6. Instructional proof of:
1) Sdri's Workspace Document. FARA NOVIA MANOPPO;
2) The appointment of Sdri. FARA NOVIA MANOPPO as
Customer Service;
3) 3 (three) set document opening of a Taka type savings account,
Signs and Business Tabhar an. Sdr. ISKANDAR SIMAN;
4) 1 (one) set the opening documents of a Gold Mark savings account
an. Sdr. ISKANDAR SIMAN opened by Sdri. FARA NOVIA
MANOPPO;
5
5) 1 (one) set the opening document of the Sign savings account.
Sdri. ROSLINAWATI;
6) 1 (one) set the account closure Form sheet
savings type Taka an. ISKANDAR SIMAN (which was made by
Defendant);
7) 1 (one) of a cash-raising slip sheet of Rp. 270.792
850,-and a Taka Type savings account. ISKANDAR SIMAN to
Tabhar an account savings account. ISKANDAR SIMAN;
8) 1 (ONE) THE LOVELY SLIP OF THE FUND Rp.
280,000,000,-from Tabhar's account. ISKANDAR SIMAN to
A Gold Sign savings account. ISKANDAR SIMAN (opened
by defendant);
9) 12 (twelve) of Tunai's withdrawal slip sheet and Mark's Account Account
Gold Number A/C 396-10019994 an. ISKANDAR SIMAN (which
opened by the Defendant);
10) 16 (sixteen) deledger slips of funds and savings accounts
The Gold Mark Number A/C. 396-810019994 an. ISKANDAR SIMAN
(which was opened by the Defendant) to a Mark of Savings account. Sdri.
ROSLINAWATI;
11) 5 (five) Newspaper account sets;
12) 8 (eight) cash withdrawal slip sheets from the Business Tabhar account
Number A/C. 396-810007999 an. ISKANDAR SIMAN;
13) 1 (one) of Gold an ID savings book. ISKANDAR SIMAN;
14) 1 (one) Self-Cash Return Card Number 6034 3939
6000 5763 OCBC NISP;
15) Taka Type A/C 396-240-00800.5, July 13,
2007 an. ISKANDAR SIMAN;
16) Signal Type A/C 396-810-130-50800.5, date 13
July 2007 an. ISKANDAR SIMAN;
17) Tabhar type Tabhar Number A/C396-810-00799.9, date 28
August 2008 an. ISKANDAR SIMAN;
Stay attached to the case file:
1) 1) 1 (one) AC unit;
2) 2 (two) Hand Phone units;
6
3) 6 (six) shirts;
4) 2 (two) bags;
5) 4 (four) shoes;
6) 5 (five) cosmetics;
7) 1 (one) watches;
8) 1 (one) DVD;
9) 50 (fifty) DVD/VCD Film caset;
Rereturned to OCBC Bank NISP via witness IDA
WULANDARI HERLAKSONO;
7. Imposing the defendant to pay a case fee of Rp. 2000,-(two thousand rupiah).
5. That the North (later called the "Assembly of Judges") has dropped a guilty verdict on the case of the Criminal Code
The banking that occurs in the case of the Court of Justice.
OCBC Bank NISP Tbk. The coconut branchIvoire of Rp. 385,520,000,-(three hundred and eighty-five million five
hundred and twenty thousand Rupiahs) as contemplated in the Letter of Demands
General Prosecutor NO.REG.PERK. PDM-73/JKT.UT/01/ 2011 (Evidence P-5);
6. That based on P-4 evidence above the Assembly of Judges has granted
the criminal sanction to the applicant under the provisions of Article 49 of the paragraph
(1) the letter c of the Banking Act is to provide a criminal
prison and criminal fine;
7. That we assess the judgment based on the provisions of Article 49
paragraph (1) of the Banking Act of which is required
with maximum and minimum criminal charges and minimum and minimum fines
has been adversely affected. The constitutional rights of the applicant, because of the provisions
instead have led to discrimination of the right to obtain guarantees
justice and equality before the law as determined in
Article 28D UUD 1945 as shall we apply to section III
this request
8. That further, it refers to the Court of Justice since the termination
No. 006 /PUU-III/ 2005 dated 31 May 2005 and the Number
11 /PUU-V/2007 dated 20 September 2007 and the verdict
7
further, the applicant is established that the loss of rights and/or
the constitutional authority as referred to as Article 51 paragraph (1) Act
MK must meet 5 (five) terms, that is:
a. The existence and/or constitutional authority of the applicant
provided by UUD 1945;
b. The rights and/or constitutional authority by the applicant
are considered harmed by the enactment of the required Act
testing;
c. Such constitutional losses must be specific (special) and
actual or at least a potential that according to the reasoning that
reasonable is certain to occur;
d. The existence of a causal relationship (causal verband) between the loss
referred to and the enactment of the Act is moveted;
e. It is possible that with the application of the request, then
constitutional losses such as those that are postulate will not be or are no longer
occurring;
Thus there are five absolute terms that must be met
in testing the Act against the Basic Law,
The applicant has a legal standing. The first condition is the qualification
The applicant as a citizen of the Republic of Indonesia, to act
as the applicant as affirmed in Section 51 of the paragraph (1) of the Act
MK. The second term by the enactment of an Act of rights
and/or the constitutional authority of the applicant is harmed. Third,
The constitutional losses are specific. Fourth loss
is arising from the expiring Act.
Fifth, that constitutional loss will no longer occur if
this request is granted.
That description above proof that the applicant (individual
of the Indonesian Citizen) has a (legal standing) legal standing
to act as the applicant in the testing application
This Act.
That is based on The qualifications and conditions are above, then the applicant
of the Citizen of Indonesia, really have been harmed rights and/or
8
its constitutional authority as a result of the enactment of Article 49 of the paragraph (1) c
Act Number 10 of 1998, of Banking, due to the condition of maximum and minimum criminal treatment as well as maximum and minimum fines. Finally, in the event of a testing application to the provisions of Article 49 of the paragraph (1) the letter c Banking Act
granted by the Constitutional Court, then the rights and/or the constitutional authority of the applicant are no longer harmed. As such, the
4. That the applicant has been designated as a Prisoner based on
North Jakarta District Court Decree No. 86 /Pid.Sus/2011.PN.Jkt.Ut
dated April 20, 2011 which amar rulings is as follows (Evidence P-4);
PROSECUTE
1. Declared The Defendant Of The FARA NOVIA MANOPPO, SH. It has been proven
legitimately and convinces guilty of committing a criminal act
banking.
2. Dropping a criminal against the defendant FARA NOVIA MANOPPO,
SH. Therefore, with a prison criminal for 6 (six) years
and a fine of Rp. 10,000,000,000,-(ten billion rupiah).
3. Stating that the defendant does not pay the fine, then
is replaced by confinement 3 (three) months.
4. Establishing a lifetime of arrests and detentions
by the defendant is curated entirely from the convicted felon.
5. Ordered the defendant to remain in above have been proven
raises the loss of the constitutional right of the applicant as
man to obtain a guarantee of legal certainty, equality in
the presence of the law and justice according to the law as
determined in Article 28D paragraph (1) of the Constitution 1945;
b. The applicant has been convicted of a rule of law that requires
a minimum criminal so that the Assembly of Judges in the upper criminal case
the name of the applicant at the North Jakarta District Court is not possible
to punish the applicant with criminal sanctions under five years
by hence contradictory asas and asas
justice, so even though its losses are mild but
remains to be severely punished, it proves that with
a provision Criminal as set out in Section 49 of the paragraph
(1) letter c of the Banking Act The applicant has harmed the right
constitutionality as set out in Article 28D paragraph (1) of the Constitution
15
1945, it also proves that the constitutional loss that
suffered from the applicant is actual and specific;
c. At the time the idlers were dropped to the applicant, the applicant
in the state contained and eventually had to take care of
his son until his 2-year-old in the house of the applicant
served the sentence, and subsequently the applicant mfore the law, where it is stated,
" Everyone is entitled for recognition, warranty, protection, and
fair legal certainty as well as the same treatment before
law ".
9
The constitution of the constitution above reflects the principles of human rights
that applies to all human beings universally. In the qualifiers
the same, every human being, including in it the applicant. However
in fact, the Act on the right over recognition,
guarantees, protection and legal certainty are nothing special,
because one can be designated an inmate without any
legal certainty that fair;
5. The recognition, warranty, protection, and legal certainty of a fair
as referred to above also includes recognition, assurance, and
protection of the universal applicable legal principles. One
the legal principle recognized by its existence in the Indonesian legal system
is the protection of the arbitrary act of legal provisions
that is unfair and discriminatory inclined;
6. That in relation to the applicant request, refer to
The Proof of P-4 The applicant has been convicted under the provisions of Article
49 paragraph (1) of the Banking Act c that requires
a maximum and minimum criminal as well as the maximum fine and
minimum;
7. That further in relation to the provisions of Article 49 of the paragraph (1)
letter c of the Banking Act, which is being honed by its application
through this request, we assess this provision has opened
the opportunities for occurrence "The discrimination and futility of the rule of law" which
poses a constitutional disadvantage of discrimination rights to
obtaining a guarantee of justice and equality before the law
as defined in Article 28D of the Constitution of 1945. this is because
a formula about:
a. Imprisonment of at least 5 (five) years and longest
15 (fifteen) years;
b. Fine at least Rp. 10,000,000,000,-(ten billion
Rupiah) and at most 200,000,000,000,-(two hundred billion
Rupiah).
8. The formula above proves that the provisions contained
in Section 49 of the paragraph (1) of the Banking Act
contrary to the principle of recognition, assurance, protection and
10
fair legal certainty as well as the same treatment before
the law which is a fundamental right, as referred by Article
28D paragraph (1) of the 1945 Constitution;
9. That under the terms of Article 28 of the Constitution of 1945, it is
providing protection to citizens of the treatment by
other citizens and also from the state. For example, Article 28J paragraph
(2) of the 1945 Constitution states:
" In exercising its rights and freedom, each person is subject to submission
to the restrictions specified by the law with
the intent is solely to ensure recognition as well as respect
over the rights and freedoms of others and to meet the demands that
is fair in accordance with moral considerations, religious values, security,
and the public order in a democratic society ".
The formulation of Article 28J paragraph (2) of the Constitution of 1945 contains a constitutional norm
that can restrict one's right and country (through Invite-
Invite), but such restrictions are performed with the terms
that is in its nature limited, that is "with the intent solely to
guarantee ... and to meet the fair demands ...". With
other words, the constitution restricts certain rights of citizens
(throughout that restriction conducted through the Act) and
its supervising must be done proportionate to the
destination or other interests that are to be protected by the Invite-
Invite.
10. That the Terms of Section 49 paragraph (1) of the letter c of the Act
Banking, which is used to convict the applicant elicits
loss, as the proven applicant has committed a criminal
banking that harms the OCBC Bank NISP Tbk, The Coconut branch
Ivory for Rp. 385,520,000,-(three hundred and eighty-five million five hundred and twenty thousand Rupiah) must undergo a prison sentence of 6 (six) years and fine as much as Rp. 10,000,000,000,-
(ten billion Rupiah) is excessive if compared to
sanctions on Criminal Tindak Money laundering, Corruption Criminal Code or even Felony Embezzlement though. By the formulation of this section, the a quo is disproportionate
11
and excesse and by itself violates the principles that
is set in Article 28D paragraph (1) of the 1945 Constitution;
11. That Section 49 paragraph (1) letter c of the Banking Act, if fixed
is used to punish a person will result in
a occurrence of legal uncertainty, legal injustice, extravagance
law, double punishment (double punishment) and with
itself in violation of the principles set out in Article 28D
paragraph (1) of the 1945 Constitution. In relation to the applicant there is a reason-
the reason for the law is as follows:
a. That the six-year-old applicator was performed because
the existing judicial power solely complies with the rules
in Section 49 of the paragraph (1) the letter c of the Banking Act
requires that there be a minimum criminal and maximum; (Vide Evidence P-4)
b. That the Assembly of Judges in criminal matters on behalf of the applicant
at the North Jakarta District Court representing power
the judicial at the time was not likely to punish the applicant with
the criminal sanctions under five years because if It is done,
then the Assembly of Judges has violated the rules and rules
in the Banking Act;
c. That the granting of criminal sanctions for a minimum of five years which
is granted to the Board of the Board of Commissioners, Directors or employees
The bank has proven to be intentionally committing the Criminal Code
e Bankingconstitute a potentially qualified chapter in violation of the principle of respect
and recognition of human rights, in violation of confirmation of certainty
laws the fair and the equality before the law which in this case is
the applicant ' s constitutional rights which are the defendants in the criminal case
that overtook it. With the formulation of this section, the article
a quo is disproportionate and excessive and is itself in violation of
Article 28D paragraph (1) of the 1945 Constitution.
V. Provision That given the provisions of Article 58 of the Constitutional Court Act,
which states that the Court of Justice is not retroactive, then to
prevent the occurrence of any violation of the applicant ' s constitutional right (with
how to continue to hold the applicant as a convict), the applicant, pledging that
the Assembly of the Constitution of the Constitution publishes the Ruling Sela ordering
North Jakarta District Court to stop and or delay
criminal convictions for 6 years and a fine of Rp. 10,000,000,000,-
(ten billion rupiah) against the applicant as intended in
19
Decree of North Jakata State Court Number 86 /Pid.Sus/2011.PN.Jkt.Ut
dated April 20, 2011.
With all the legal reasons above, please respectfully please
The Constitutional Court of Justice deigned to grant the application of the provision.
VI. Petitum That from all the postures described above and the evidence attached,
with this the applicant please to the Honorable Assembly of the Constitution
in order to please give the verdict as follows:
In Provision:
1. Grant a request for the applicant's Provision;
2. Proclaiming the execution of Article 49 of paragraph (1) letter c
Invite Invite Number 10 Year 1998 on Change of Act
Number 7 of 1992 until the final ruling of the Court against the subject
plea a quo;
In The Point Of The Case: 1. Accept and grant the application of Section 49 of the paragraph (1) letter c
Act No. 10 of 1998 on Change Act
Number 7 of 1992 on Banking against the Basic Law
Republic of the Republic Indonesia Year 1945;
2. Article 49 of the paragraph (1) of the Act of Number 10 of 1998
on the Change of Law Number 7 of 1992 on Banking
in conflict with the 1945 Constitution;
3. Article 49 of the paragraph (1) of the letter c of the Law No. 10 of 1998
on the Change of Law Number 7 of 1992 on Banking,
does not have a binding legal force with any consequence of its law;
4. Or if the Constitutional Court of Justice argues otherwise and encodes the Article
49 paragraph (1) letter c Invite Invite Number 10 Year 1998 on Changes
Law Number 7 of 1992 on Banking remains to have
the power law binding and applicable, please for the Assembly of Judges of the Constitution
may provide constitutional interpretation against Article 49 of the paragraph (1) letter c Invite Invite Number 10 Year 1998 on Change Act
Number 7 of 1992 about Banking, with the meaning to have
the power of the law is binding with remove or change the phrase
20
" Criminal penalties of at least 5 (five) years and minimum fines-
lack of Rp. 10,000,000,000,-(ten billion Rupiahs);
5. Ordering the loading of this ruling in the News of the Republic of Indonesia
as it should.
Or if the Constitutional Assembly of the Constitution argues for another, please a ruling that
be fair (ex aequo et bono)
[2.2] weighed that in order to prove its control, the applicant has
submitted a written proof tool given the Proof of P-1 to the Evidence
P-8, as follows:
1. Proof of P-1: Photocopy Act No. 10 of 1998 on
Changes to the Law Number 7 of 1992
about Banking;
2. Evidence P-2: Photocopy of the State Basic Law of the Republic of Indonesia
Year 1945;
3. Proof P-3: Photocopy of Family Card;
4. Proof P-4: Photocopy Number 86 /Pid.Sus/2011/PN.Jkt.Ut;
5. Evidence P-5: Photocopy Letter Demands Number Reg.Perk. :PDM-
73 /JKT.UT/01/2011;
6. Evidence P-6: Photocopy Act No. 8 of 2010 on
Prevention and Eradication Of Laundering Crimes
Money;
7. Proof P-7: Photocopying page www.Jurnas.com, Monday 7 November
2011;
8. Evidence P-8: Photocopy of www.medanbisnisdaily.com, June 23,
2011;
[2.3] A draw that the Government in the trial dated January 31
2012 has given an oral description and has also provided the caption
written Opening Statement to the Assembly of the Court on the 2nd
February 2012 which in its office describes as follows:
In its request, the applicant argues that the provisions of Article 49
paragraph (1) of the letter c The Banking Act that reads;
21
" Member of the Board of Commissioners, Directors, or Bank Employees on purpose
change, obscure, hide, delete, or remove
the presence of a record in the ledger or in the report, or in
documents or reports of attempted activities, transaction reports or accounts of an
bank, or deliberately alter, obscure, omit,
hide or damage the bookkeeping record such, threatened with
prison criminal of at least 5 (five) years and at least 15 (fifteen)
years as well as fines at least Rp.10,000.000.00 (ten billion
rupiah) and most Rp 200,000.000.00 (two hundred billion rupiah) ".
contrary to the provisions of Article 28D paragraph (1) of the 1945 Constitution. In
, according to the applicant, with the provision of Article 49 of the paragraph (1)
letter c the Banking Act has hoisted the uncertainty of the law,
legal injustice, legal waste, double punishment (double
punishment) and has violated the principles set out in the provisions
Article (1) of the 1945 Constitution.
More later in its request, the applicant postulate that with
the provision of a quo has resulted in a loss
the constitutional one experienced by the applicant, in which the applicant is based
North Jakarta State Court ruling Number 86 /Pid.Sus/2011.PN.Jkt.Ut
April 20, 2011, has been legally proven and convincingly guilty
committing a banking criminal causing a loss of Rp.
385,520,000 (three hundred and eighty-five million five hundred and twenty thousand rupiah)
must undergo a prison sentence of 6 (six) years and fines
as much as Rp.10,000,000,000 (ten billion rupiah) for being done
a minimum criminal in the provisions of a quo, which according to the Penitioner of Criminal punishment
The applicant must not be proportional to the deeds which have been
done by the applicant, so that the a quo requirement according to the applicion, and
the fair legal certainty, as warranted by Article 28D paragraph (1) of the Constitution
1945;
4. That proved to be a potentially constitutional loss,
that is to lose his right to life as defined in Article
28A paragraph (1) of the 1945 Constitution and also proved to be detrimentally to the rights of the child's constitution
The applicant has the right to grow and be sparred (Vide Article 28B
paragraph (2) UUD 1945);
5. That the Terms of Section 49 of the paragraph (1) of the letter c Invit articipating in:
a positive impact in growing community confidence in
banks, otherwise weak regulation in banking would be
lowering the level of public trust against banks, as well as with
25
one form of severe criminal provisions setting for para
banking criminal perpetrators in the Banking Act
psychologically surely will have an impact on improving the sense of safety to the
the public in entrusting the management of funds to the bank.
Related to the applicant ' s plea that at its sole stated
that the provisions of Article 49 paragraph (1) of the Banking Act of the Banking Act
sanction in The Banking Criminal Code that the applicant says is unfair, too
excessive and not proportionate if compared to the sanctions on the Follow-
Criminal Laundering, Corruption and Felony Embezzlement,
The government expressly states not to agree with the applicant ' s dalil
.
The course of criminal sanctions in the Banking Act is aimed at
giving the jera effect to the perpetrator of the crime and preventing the occurrence of
the banking crime itself. In addition, the purpose of the buyer for
the perpetrator of a banking criminal is also to protect the public, in
where the goals of such idlers have been in accordance with the theory of the idation
in effect, that is the purpose of punishment is to prevent occurrence
repeat of criminal (to prevent recidivism), prevent others
perform the same deeds (to deter other from the performance of similar
acts), and to protect the public (social defence).
A severe punishment threat for banking crime offenders
raises the effect of jera for the culprit not to repeat its conduct and
preventing others from committing banking crimes. In the end
a severe punishment threat to the banking crime perpetrators would
give a safe sense to the people who invested the money in the bank.
In addition to that, the Government can convey that there is a provision sanctions
the criminal contained in the provisions of a quo could not be compared to
the sanctions contained in another criminal offence, where a
criminal offence in banking will not only be harm
the existence of the banking industry itself, but it can also resulting in
disrupting the national economic stability, as ever experienced by
Indonesia in 1997. If we look at the impact of such losses
large that could arise as a result of a banking criminal, then
a severe minimum of sanctions for the perpetrators of the banking criminal has been
26
proportionate and has fulfilled the sense of justice. In contrast to criminal sanctions
the minimum is not expressly set against the Criminal Banking offender,
then it will lead to an abuse of authority
by the perpetrators of the banking business as well as by the Other related parties,
that would ultimately harm and threaten health
the banking system and that would also characterless the sense of justice for
the public, in particular the fund-saving nassaans.
Based on that above, it is thus clear that the dalil
The applicant stating that the Terms of Section 49 paragraph (1) of the letter c Invite-
Invite the Banking is not fair, too excessive and disproportionate so that
the a quo provision is contrary to the provisions of Article 28D paragraph (1) of the Constitution 1945
not proven at all.
In addition to the ha-thing as the Government has delivered it, it can
The government has said that in the absence of heavy sanctions for
the perpetrators of the Banking Criminal Code will of course result in the decline
level of community confidence against industry Banking. As it has been
The government has explained earlier that declining confidence levels
the public against the bank is bound to result in the fall of the industry
banking that will impact the disruption of stability economy
national overall.
In the case it is still, the Government can convey that if the term
Article 49 paragraph (1) the Banking Act c is declared contradictory
with UUD 1945 and cancelled, or if criminal sanctions are in terms
a quo minus, then Low sanctions against criminal offenders
The banking did not provide the jera effect for Criminal offenders
Banking and society, so that could result in
increasing fellow-case in banking.
The government argues that the threat of minimum criminal penalties
weighs in the a quo provision is still indispenable, and if if the system
the threat of such criminal penalties is not constrained minimum, chance of para
offender banking criminal sentenced to low be open, so that the
that may result in the amount of banking crimes can be
higher.
27
Based on that, then if the provisions of Article 49 paragraph (1) of the letter c
The Banking Act is declared contrary to the 1945 Constitution and
the cancellation, or if the criminal sanction is in a quo may result in
on the increasing criminal banking as well as declining levels
the public trust of banking. This would result in
the fall of the banking industry that empties into the disruption of stability
national peresonian.
Based on that explanation, the Government pleads to Yang
Your Majesty the Chairman/Assembly of Judges The Constitutional Court of the Republic of Indonesia which
examines, severing and prosecuting testing provisions of Article 49
paragraph (1) letter c Law Number 10 of 1998 on Change
Act Number 7 of 1992 concerning Banking is not contradictory
with the 1945 Constitution and still has the power law binding and fixed
applies throughout the territory of the Republic of Indonesia.
But so if the Speaker/Assembly of the Constitutional Court
The Republic of Indonesia argues another, please the wise and the ruling. It's fair-
fair (ex aequo et bono).
In addition to it the Government also provides a written statement and the conclusion
that was accepted by the Court of Justice on 24 February 2012 which in
pocigarettes stated as follows:
I. Subject matter That based on the case register Number 82/PUU/IX/2011, dated 23
November 2011, the applicant applied for a provisions test of the provisions
Article 49 paragraph (1) of the Banking Act c of the Constitution of 1945.
Refer to the applicant, essentially the applicant
assume the rights and/or its constitutional authority to be harmed
by the enactment of the provisions of Article 49 of the paragraph (1) of the Act c
Banking stated " Members of the Board of Commissioners, Directors, or
bank employees who intentionally change, obscure,
hide, delete, or eliminate any of the records
1997
not happening again, where efforts in keeping and protecting the sector
The banking is one of which is to keep community confidence
over the banking industry.
Efforts to foster community confidence in the world
banking is a joint effort between the perpetrators venture banking,
the government and its own society. There are many factors that can be
affecting people's level of confidence in the banking world, in
where one is regulation in banking.
Good regulation in banking, of course. p on), then it is not as well as merta
will cancel. The criminal verdict imposed on the applicant,
for the Constitutional Court 's termination in case a quo could not
cancel the Criminal Termination which has been dropped by the Judges' Assembly
North Jakarta District Court to Petitioner.
3. Further in Article 47 of the Act of MK is expressly stated "Putermination
The Constitutional Court obtained the legal powers remain since its completion
is said in the open plenary session to the public." this
reflects that the Constitutional Court's termination cannot be valid
receding, so that if the provisions of Article 49 of the paragraph (1) the letter c Invite-
Invite Banking which the applicant is required to be tested by the applicant
is overturned by the Constitutional Court (quod non), then basis
legal considerations for the Assembly of Justice of the Court of State Jakarta
North in dropping criminal against the applicant
using the provisions of Article 49 paragraph (1) letter c of the Act
Banking remains legally valid.
C. The Applicant ' S Loss Is Not Due To The Provision Of The Provisions Of Section 49 Paragraph (1) Of The Banking Act. 1. Further may the Government submit that the loss experienced
The applicant as it is delivered in its request
on the ruling of the North Jakarta District Court Number
86 /Pid.Sus/2011.PN.Jkt.Ut date of 20 April 2011 which dropped
a prison criminal for 6 (six) years to the applicant, not
is due to the minimum criminal set in provisions
a quo.
32
2. That in the provisions of Section 49 paragraph (1) of the letter c of the Law
Banking is set about minimum prison criminal for 5 (five)
years and fines of at least Rp10,000.000.000.00 (ten
billion rupiah), whereas based on the court ruling
North Jakarta the applicant was sentenced to 6 (six) years in prison.
So that from it proved that the Court of Justice of the Court
The North Jakarta State was not only referring to a quo, and
The Judge Assembly at the North Jakarta District Court has
Its own assessment so that it sentences prison penal for 6 (six)
years to the applicant, or heavier than the minimum sentence
is set in the provisions of a quo.
3. According to this, the Government has argued that the loss that
experienced by the applicant is not due to the provision of the provisions
a quo alone, but based on the judgment of the Assembly of Judges
Jakarta State Court The North as well as the facts revealed in
a trial that convinced the Assembly of Justice of the Jakarta District Court
North to sentence the tougher criminal penalties of criminal
a minimum set in the provisions of a quo.
D. The Petitioner Does Not Fulfill Its Constitutional Obligations As Set Out In Article 28J (2) Of The 1945 Constitution. 1. That in the 1945 Constitution is set about basic rights and obligations
any citizen, where the rights set out in the 1945 Constitution
provide a constitutional right to any citizen.
Yet it is a constitutional right. Every citizen has
limits to any citizen's liability, where
the limitation aims solely to guarantee its compliance
the constitutional rights of other citizens. Restrictions on rights
any citizen has expressly set out in provisions
Article 28J paragraph (2) of the 1945 Constitution that mentions "In running
rights and freedom, each person is mandatory subject to the restriction
specified with legislation with intent solely
to guarantee recognition as well as respect for rights and
the freedom of others and to meet fair demands accordingly
33
with moral considerations, religious values, security, and
General order in a democratic society."
2. In relation to the above, the Government may submit
that the enforcement provisions of Article 49 of the paragraph (1) of the letter c Invite-
Invite Banking constitutes an implementation of the provisions of Article 28J
paragraph (2) of the 1945 Constitution, in which case this is solely to provide
in particular protection against the rights of the storage customers
funds in entrusting funds to banking institutions,
as well as providing protection against the rights of the community at
generally. Thus it is so that the applicant may also
fulfill its obligations as set out in the provisions of Article
28J paragraph (2) of the 1945 Constitution by not committing a breach of
the provisions of Article 49 of the paragraph (1) of the letter c Banking.
E. Petitioners Are Not Clear (Obscuur Libel) 1. In the request of the applicant postulate that the provisions of Article
49 paragraph (1) of the Banking Act have been contradictory
with the provisions of Article 28D paragraph (1) of the Constitution of 1945, but in
the applicant's request is not able to Confirm
There is a conflict between the provisions of Article 49 paragraph (1) letter c
The Banking Act with the provisions of Article 28D paragraph (1) UUD
1945. With no clear (obscuur libel)-the Applicant Plea
in conducting a dispute between the provisions of Article
49 paragraph (1) of the Banking Act c.
28D paragraph (1) of the 1945 Constitution, It is thus clear that the applicant is not
may prove that the provisions of Article 49 of the paragraph (1) of the letter c Invite-
Invite the Banking to be contrary to the 1945 Constitution.
2. Based on the above, the Government argues that not
exists and/or has incurred a loss to the right and/or
the constitutional authority of the applicant for the provision of
Section 49 of the paragraph (1) letter c The Banking Act. Accordingly,
The government has argued that the legal standing (legal standing)
The applicant in the a quo application does not meet the requirements
as set forth in Article 51 of the paragraph (1) MK Act or
based on the former Constitutional Court's ruling.
34
3. Based on the description above, the Government pleads that
The Speaker/Assembly of the Constitutional Court is wisely
declaring the applicant not acceptable (niet
ontvankelijk verklaard).
As an additional information to the Speaker/Assembly of Justice
The Constitution, the following is delivered the Government's explanation of the material
testing provisions of Article 49 of the paragraph (1) of the Banking Act c.
III. Government Explanation Of The Provisions Of Article 49 Paragraph (1) The c-letter Invite Banking. A. The role of the banking industry in the National Economic System
1. That the National Development ial losses arising out of the enactment of a
legislation pursuant to Article 51 of the paragraph (1) Act MK (vide of the Number
006 /PUU-III/2005 and subsequent ruling) which one
its terms are "the possibility that it is granted
the request then the controlled constitutional loss would not be
or not Again".
2. That if the provisions of Section 49 of the paragraph (1) of the letter c of the Law
The Banking of the applicant are cancelled by
the Constitutional Court (quod n >
of provisions in Chapter I to Chapter VIII of this book also apply to the deeds-
the deeds which by the provisions of the law. Other laws are threatened
with a criminal, unless by law Another set. " Conditions
51
in Article 103 of the Code of Criminal Law it may be defined
that the lawmaker may have made the list
"special rules" (special rules) on the rules/guidelines of the idledences
(strongly guidelines for sentencing or straftoemetingsleiddraad). Terms
The inclusion of the rules/guideline is intended to be
the minimum criminal can be applied/operationalized in the case
specified.
9. That in addition to the constitutionally, theoretically, and juridical views
as described above, related to the testing of the provisions
Article 49 of the a quo Act is seen to be looking at the background
formulation Article 49 of the a quo in the meeting treatise
The discussion of the bill a quo as follows:
8.a. The 7th Working Meeting Thursday, September 17, 1998:
MEMBERS OF FABRI (DRS. " " ... That FABRI just wants
to give advice or question, DIM Number 217 this is about
criminal threat. First, the hukurnan threat needs to be raised.
Well, regarding the need to be raised later this needs to be discussed at Panja.
Then also made possible a penalty or threat
minimum and maximum punishment, for example between a year until
that is a year. So if only the maximum could be possible
was sentenced to one day ' s criminal punishment, because the minimum is only one
days. As for what we heard was only sentenced to
four months, the threat of his sentence was fifteen years old.
So is the dentures here around Rp 10
billion, but was given only Rp 40 million .... "
" .... So for this occasion FABRI also wants
The need for something to be minimal punishment threat and
This is also in America, this US state was developed and
already there is a threat. Maximum and minimal punishment. So
sir ... "
THE MEMBER OF THE FKP (T. ARSEN RICKSON, SH): " ... So in order to be clear
indeed, we read " the stuff on purpose
commits a violation of Article 16, so we are short
wrote Article 16 of what, it was threatened with a prison criminal
52
at least 5 years and for up to 15 years and
fines of at least Rp 5 billion or fine as high as it is
Rp 15 billion. Then the paragraph (2) may be this at once
later it is that the corporation yanq commits a breach
as referred to in paragraph (1) above, this is also threatened
the penalty of fines At least Rp 15 billion and as high as-
$45 billion in height.
MEMBER FPDI: " ... Brother Chairman, regarding Section or DIM
No. 217 of these FPDi adds words as being ajid.
Then also formulating the minimum and limit limits
maximum penalty both physical and fine. The formula is:
"Whoever by accident", the Government is not included with
willfully, then the threat that the Government is " high-
high or penal for the longest 15-year-old criminal or fine
most Rp 10 billion ", it is too small it ..."
" ... If we were here "at least 5 years and for-
15 years and a fine of the money at least Rp 5
billion then as much as Rp 15 billion", higher than
Government. Because of this the mischievous that it is now
weighs the penalty, don't be light-light. So that there is no more
the rogue, as it turns out because the rules are rather soft
or the rules are rather blurred, well it is sought by the cracks for
making the rule is not the way, so many follow-up. criminal that
happens in this banking world ... "
" ... Then the second one, regarding the corporation, is also heavy
because he was corporate it was low at Rp 15 billion and
a lot of Rp 45 billion. Well then, but this corporation
if not wrong-terms, the generally unregulated provisions,
is pending up to this whether later discussed or accepted later or
not ... "
" ... Then we are also detailed here because in Article 18 there is set
regarding the Branch Office and the Representative Office. Well if his boss
also commits a violation of Article 18, there is also a threat,
the threat of physical criminal or fine. It's also a five-year-old at least-
53
s lack, 15 years as high as possible. The dentures are as low as-
the low Rp 5 billion, then as high as Rp 15 billion ... "
" ... Also the Chief Representative of the Public Bank, which is doing
violations overseas, as well as overseas threats, too,
what is his name but he is inferior it is because he is just a representative,
he did not do banking activities if not wrong it
The threat 1 year in prison is at least 3 years old,
The density is Rp 1 billion at the most and the highest Rp 3 billion ... "
" ... Then the Public Bank that is stationed overseas, which
committing a felony is also this big, it's Rp 15 billion at least-
lack, Rp 45 billion as high as it is. I was just Brother
Chairman and if It's not yet agreed, we propose to Panja.
Thank you ... "
GOVERNMENT: " ... Just a record, we agree to Panja, with
note that regarding maximum and minimal punishment threats
it is closely related to proving in Court and exists or
at least things that could be lighten or incriminating
the defendant ... "
" ... Then regarding corporate criminal, will be tried to be coordinated
formerly with the Department of Justice, Police and Prosecutor.
This later we will also try to coordinate while looking
The odds are about this. Thank you ... "
THE MEMBER OF THE FKP (T. ARSEN RICKSON, SH): " ... Then special
for the new addition in this DIM for Article 47 f, this
may have forgotten its proofs so that it is not included in
DIM this is for Article 47 f, which we propose reads as following
The Bank of Indonesia deliberately does not implement
its obligations as referred to in Article 11, Section 29 and
Article 37, which later resulted in a loss for
society, nasabah, country and damaging banking sisteams then
to The leader is charged with a prison criminal
orng the criminal or
the number of fines need to be considered regarding the impact that
incurred by criminal acts in the community as well as the error element
offender. "
8. That the formulation of a banking special criminal provisions as
is listed in Article 49 of the paragraph (1) of the letter c a quo also
paying attention to the common principles contained in the Book of Books
The Law of Law The criminal, especially in Article 103
the Code of Criminal Law, states that " The provisions-
20 years and fine at least Rp 10 billion and
top-high Rp 20 billion. Well, the addition of this new Article
54
given its urgency and relevance in our current efforts
this is experiencing a crisis of trust in upholding justice and
the truth is unfavorably, or in other words we do not
wants, we want to uphold and reaffirm that in
our country that is based on this law or rechstaat, not Iagi
There are legal inviters including those in this is BI
alone and BPPN ... "
8.b. 8th Working Meeting Tuesday 13 October 1998:
CHAIRMAN PANJA (DRS). "JOE ALWI BANYO): " ... The issue
concerns the Sanctions Administration and the Criminal Terms as well as Denda
gets a deep concern from the Panja Meeting, where it has
agreed to be the Minimum and Maximum Criminal Code as well as
weighing Denda by staying attenuating aspects of justice.
This is reflected in Article 41 of the paragraph (1), Article 47 of the paragraph (1), Article
47A, and Pasa 50A .. "
" ... The consequences of the approval of such sections
above, then for synchronization, consistency, perfection and
fairness in the discussion of the then Timus Meeting
delivered to Panja and agreed by Fractions in
Panja to change Article 47 of the paragraph (2), Section 48 paragraph (1) and paragraph
(2), Section 49 of the paragraph (1) and paragraph (2), Section 50, and Section 51 of the paragraph (1)
previously not submitted in Draft Act
this is for next to be proposed to Meeting Plenary Commission VIII DPR
RI today in order to get approval ... "
s MEMBERS FABRI (DJATMIKANTO DANUMARTONO, S. IP):
" ... A relationship with that then criminal sanctions need to be improved, at
The other side of the maximum sanctions determination without minimal sanctions opened
the odds for the dropped a sentence too light to
the defendant. In this connection there needs to be a maximum limitation and
is minimal for such sanki. Considering
the two things above the FABRI agree, that for Article 46 of the paragraph (1),
Article 47 of the paragraph (1) and Section 50A need to be increased by its pidation
with minimal and maximum limitation ... "
55
" ... With the approval of all three substances above, rnaka as one
arrangement of Act Number 7 of 1992 and
The changes appear to be unintact, timpang as well as less fulfilling
sense of justice. This is due to the existence of Article 47 of the paragraph (2),
Article 48 paragraph (1) and paragraph (2), Section 49 of the paragraph (1) and paragraph (2), and
Article 50 in the Vlll CRIMINAL AND SANCTION PROVISIONS
THE UNPROPOSED ADMINISTRATIVE To change. To me etent authorities
a request for a quo and the applicant has a legal standing (legal standing),
subsequently the Court will consider the subject of the plea;
Court opinion
In Provision:
[3.10] A draw that in the application of the provision applicant pleaded
to the Court to drop the sidelines ruling, ordering the Court
North Jakarta Country to stop or delay prison criminal charges
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
Court Constitution (State Of The Republic Of Indonesia Year 2011 Number
70, Extra Sheet) State of the Republic of Indonesia Number 5226, next
called Act MK), and Article 29 paragraph (1) letter a Law No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
59
2009 Number 157, Additional Gazette Republic of Indonesia Number
5076), one of the Constitutional Court's constitutional authority was courting at
The first and final level of which the verdict was final for test the Invite-
Invite against the Basic Law;
[3.4] Draw that because the applicant is expected to be
testing of the constitutionality of Section 49 paragraph (1) of the Banking Act against
Article 28A and Article 28D paragraph (1) of the Constitution of 1945, then the Court of Justice for
prosecute a application Quo;
Legal Standing (Legal Standing) The applicant
[3.5] A draw that under Article 51 of the paragraph (1) MK Act, which can
apply for testing the Act against UUD 1945 is
they which considers the rights and/or its constitutional authority that
granted by the 1945 Constitution is harmed by the enactment of an Act, namely:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The position of the applicant is referred to in Article 51 of the paragraph
(1) of the MK Act;
b. the constitutional rights and/or constitutional authority granted by UUD
1945 resulting from the enactment of the required Act
testing;
[3.6] The Court has since the Constitutional Court's termination.
Number 006 /PUU-III/2005, dated 31 May 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-
subsequent ruling, the establishment that loss of rights and/or authority
60
constitutionally referred to Article 51 paragraph (1) The MK bill must meet
five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the constitutional loss must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be confirmed
will occur;
d. (causal verband) link between the intended loss
and the expiring Act (s) of the testing;
e. It is possible that with the request of a plea,
constitutional losses such as the postulate will not or no longer occur;
[3.7] Draw that the applicant is a former Indonesian citizen
OCBC Bank Employee NISP Tbk. The branch of the ivory coconuts that at its point
postulate has a constitutional right set up in Article 28A and Article
28D paragraph (1) of the Constitution of 1945 which states:
Article 28A UUD 1945: Everyone has the right to live as well as the entitled to retain his life and life.
Article 28D paragraph (1) of the 1945 Constitution: Everyone is entitled to the recognition, guarantee, protection, and certainty of fair law as well as the same treatment before the law.
According to the The applicant of this constitutional right has been harmed by the effect
provisions Section 49 of the paragraph (1) of the Banking Act states:
Members of the board of commissioners, directors, or bank employees intentionally: a. ... dst; c. Alter, obscure, cache, delete, or remove
present a record in the book or in a report, or in a document or business activity report, a transaction report or a bank account, or with Intentionally alter, obscure, eliminate, hide or damage the account of the book, threatened with a prison criminal of at least 5 (five) years and at least 15 (fifteen) years as well as a fine of at least Rp 10,000.000.00 (ten billion rupiah) and most Rp 200,000.000.000.00 (two hundred billion rupiah);
61
for the following reasons:
The applicant has been sentenced to a six-year prison sentence and
a fine of Rp. 10,000,000,000,-(ten billion rupiah) by
North Jakarta District Court under Article 49 of paragraph (1) letter c UU
Banking for having committed adverse banking crimes
Bank OCBC NISP as much as Rp. 385,520,000,-(three hundred eighty-five
millions of five hundred and twenty thousand rupiah), which according to the sentencing applicant
is very excessive and discriminatory to the applicant because
the value of the loss incurred by the Applicant ' s criminal conduct if
compared to other felon such as embezzlement, fraud or
corruption, sanctions Its pidation is very much different;
The criminal sanctions dropped to the applicant based on
the provisions of Article 49 of the paragraph (1) of the Banking Act c with
require the maximum and minimum criminal as well as the fine maximum
and the minimum has given the discrimination the right to the applicant to
obtain a guarantee of justice and equality before the law
as defined in Article 28D paragraph (1) of the Constitution of 1945;
[3.8] A draw that under the Applicant's postulate is above,
according to the Court, the applicant fulfilling the qualification as a citizen
Indonesia that has the constitutional right and its constitutional rights
may be harmed by the enactment of Article 49 of the paragraph (1) of the Banking Act c.
Therefore, the applicant has legal standing (legal standing) for
applying for a quo;
[3.9] weighed that by due to the court of compe trial enough to be appointed in the event news
the trial, which is one unseparable unity with
this verdict.
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant's plea
is to test the constitutionality of Article 49 of the paragraph (1) c of the Law Number
10 Years 1998 on Change of the Act No. 7 Year 1992
on Banking (Indonesian Republican Gazette 1998 number
182, Additional Gazette Republic of Indonesia Number 3790, next
called the Banking Act) against p>62
and fines to the applicant, as well as delaying the execution of Section 49
paragraph (1) of the Banking Act c. Against the applicant, the Court
considers that the applicant's provision request is not
precisely according to the law for some reason:
First (s), in Test of the Act (judicial review), ruling
The court only tests abstract norms, does not prosecute concrete cases
such as stopping or delaying prison criminal executions and fines
to the applicant as well as delaying the execution of Article 49 of the paragraph (1)
letter of the Banking Act;
Second current, the Court ' s ruling on the norm in Test Request
Act (judicial review) is erga omnes;
Third third, the Court's ruling is prospective in accordance with the provisions of Article
58 MK Act as well as Article 38 and Article 39 of the Court of Justice Constitution
Number 06 /PMK/2005 on the Event Guidelines in Test Perkara
The Act, so that whatever the Court's verdict in the case
a quo is not retroactive.
Based on those reasons, The Court argued for a provision plea
that the applicant did not reason according to the law;
In the subject of a plea
[3.11] weighing that the subject matter of the applicant is testing
the constitutionality of Article 49 of the paragraph (1) of the Banking Act c of Section 28A and
Article 28D verse (1) of the 1945 Constitution, with the reasons at its point
as follows:
1. The applicant has been broken up as a criminal by the Jakarta District Court
North under discriminatory rule of law, contains a waste of
and is open to elicits the double punishment that causes
The applicant is deprived right of recognition, warranty, protection, and
fair certainty as guaranteed in Article 28D paragraph (1) UUD
1945;
2. Criminal sanctions and fines in the provisions of Article 49 paragraph (1) of the letter c Act
Banking is excessive if compared to criminal sanctions on
money laundering, criminal corruption, and criminal conduct
63
embezzlement. Accordingly, the a quo becomes unpropotional so that
incline legal uncertainty and legal injustice;
[3.12] It is balanced that to prove the applicant is submitting
the evidence/writing of the letter which is given a proof of P-1 proof up to P-8 proof;
[3.13] weighed that against the applicant ' s plea, the Court has
listened to the caption orally and read the written caption
The Government and the House of Representatives are on only specify the following
(The details are in the section Event-sitting):
The absence of criminal sanctions in the Banking Act is intended to
give the jera effect to the perpetrator of the crime and prevent the occurrence of
the banking crime itself. In addition, the purpose of the buyer for
the perpetrator of a banking criminal is also to protect the public,
which corresponds to the prevailing theory of idation, which is to prevent
the recurrence of the criminal acts. (to prevent recidivism), prevent people
others from doing the same deeds (to deter other from the performance of
similar acts), and to protect the public (social defence);
the criminal sanctions act banking on Section 49 of the paragraph (1) of the Banking Act
represents the inclusion of sanctions. fair and unequivocal criminal recalls
The impact arising from the provisions of the banking criminal can
result in great loss to the nasabah or community at
in particular and the loss of trust in the sector banking in general
that would affect the national economy. This is according to the basic principle
formulation of the provisions of the criminal sanction, namely that in determining the Iates
the criminal or the number of fines need to be considered regarding the impact that
is incurred by criminal acts in the community as well as the error element
offender.
[3.14] weighed that after the Court checked in with the witness
request the applicant, read and listen to the Government and
DPR, as well as check the evidence submitted by the applicant, the Court
argues as follows:
[3.14.1] That in the provisions of Article 1 of the Banking Act, the Bank's understanding is the agency that raises funds from the public in form
64
stash and channel it to the people in the form of credit and or
other forms in order to increase the lives of the people's lives. From
the contents of such provisions can be understood that the bank's function is to provide
intermediation services and other financial services to the nasabah, which aims
to announce the owner's wealth/nasness;
[3.14.2] That in raising public funds in the form of a mistress as set forth in Article 1 of the Banking Act, the institution
banking in the running of its efforts depends heavily on the trust
the society is going to be nasadome, because without trust of
society as a source for raise funds, banking institutions not
will be able to execute its business activities either, or in other words
the public as a source to raise funds would not believe it to
a banking institution or not would like to save funds at the institution
banking that is not credible;
[3.14.3] That in maintaining trust to the public, the banking institution must provide legal protection against the interests
the public, especially the interests of his clients who have kept his money
within the institution The banking. The banking institution must be able to provide
the belief or guarantee of a community of people that the funds raised or
are kept within the banking institution are safe and without fear
or the threat that the funds will be lost by the unfavorable behavior of the person
in the banking itself namely its employees or from outside parties;
[3.14.4] That in order to provide protection and gain the trust of the public, the institution banking has some principles
as set out in the Banking Act of: 1) The principle of trust (fiduciary relation principle), that is a principle that links the relationship between banks and their clients, where banks save people's funds
based on trust, so banks must maintain health his bank
by staying maintaining and maintaining the community trust [vide Article 29 paragraph (4) of the Banking Act]; 2) the prudential principle (prudential principle), i.e. a principle that asserts that the bank is running work activities both in the set primarily in the funding flow
to The public must be very careful, meaning the bank is running
Its efforts must be in a healthy and good state and adhere to norms
65
laws applicable in the banking world [vide Article 2 and Section 29 paragraph (2) Banking Act]; 3) The Privacy Principles (secrecy principle), i.e. the principle for keeping information about the storage and storage of the customer's information, and the applicable law. stored
except for tax purposes, settlement of bank debt debt already
submitted to the Board of Debt and Lelang/Panitia Pidebt Affairs
Country (UPLN/PUPN), for the benefit of criminal litigation or
data between banks and nasabah, and in exchange for exchanging information
interbank [vide Section 40 to Section 48 Banking Act]; 4) The Identifying Principle of Nasabah (know how customer principle), that is the principle of getting to know and knowing the identity of the customer, monitoring the transaction activities
nasabah includes reporting any suspicious transactions [vide
Indonesia Bank Regulation No. 3/10/PBI/2001 on Applying Principle to Know Nasabah (know your customer principles) as amended. with the Indonesia Bank Regulation No. 3/23/PBI/2001 on Top Change Indonesia Bank Regulation No. 3/10/PBI/2001 on Applying Principle to Know Nasabah (know your customer principles)];
[3.14.5] Bring in keeping those banking principles above, especially in keeping the principle confidence (fiduciary relation principle) and the prudential principle (prudential principle), according to the Court it is necessary for the rules or norms governing the sanction or
punishment of an act or unfavorable faith in particular of
internal banking that have deliberately disobeyed the norms or
has violated banking principles so that it may undermine the trust
society against banking and in turn will undermine the economy
national. Therefore, the rule of sanctions against those who have been
violates the banking principles of which one is set forth in the Article
49 paragraph (1) of the Banking Act c that has ensnare the applicant, is
legal consequences to be accepted by the applicant for violating
the banking principles that harms the banking institutions its place works
and harms the public. That regarding the minimum penalty/fines rules and
the maximum set up in Section 49 of paragraph (1) of the Banking Act, it
according to the Court is a clearly related measure
the measure of the penalty that will be dropped to someone who has been
in violation of an act prohibited by the provisions of the perinvite rule-
66
applicable invitations or actions that have been against the law.
The maximum and minimum penalty depends on the weight or the light
the actions have been violated. Therefore, it is not relevant if
The applicant relates the sentence handed down to him with the penalty
which was dropped to the perpetrators of other criminal corruption, felon
embezzlement, and so on, because of the follow-up. criminal corruption, embezzlement and
others differ as to the act against the law that has been
conducted by the applicant. It may be argued that the formulation in Article 49 of the paragraph (1)
the letter c of the Banking Act is a provision which is its formulation
emphasized in the act that is prohibited and threatened with criminal by
legislation. So anything because the law doesn't matter and
it's only natural that it applies to banking crimes, which is not just
harming the banking itself, but it could happen any further,
that is going to be adverse to the national economy;
[3.15] A draw that the minimum and maximum criminal provisions in
section a quo, in addition to be a reflection of the determination to build
trust against the banking sector in economic recovery framework
national, also intended to be sure that a person who has been
has proven to be violated criminal, which according to the view of the forming
legislation is an open legal policy option (opened legal policy)
which is proportionate, given that the impact Such deeds are very broad and
deeply touching the interests of the nation and country with national goals. Again
also criminal acts in section a quo is a criminal offence committed with
willfully (delict dolus), so it is reasonable when sentenced to criminal
weight;
[3.16] A draw that based on such considerations above, according to the
Court, the applicant ' s control of the testing of the constitutionality of Article 49
paragraph (1) of the Banking Act c is unwarranted according to law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
67
[4.1] The court is authorized to prosecute a quo;
[4.2] The applicant has a legal position (legal standing) to submit
a request for a quo;
[4.3] Dalil-dalil Applicant does not excuse the law;
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by the Act No. 8 Year 2011 on
Changes to the Law Number 24 Year 2003 concerning Court
Constitution (2011 Republic of Indonesia Gazette 70,
Additional Gazette Republic of Indonesia Number 5226), as well as Invite-
Invite Number 48 Year 2009 on the Power of Justice (State Sheet
)Republic Of Indonesia In 2009 Number 157, Additional Leaf Of State
Republic Indonesia Number 5076).
5. AMAR RULING,
PROSECUTING,
STATES:
IN PROVISION: REJECTING THE APPLICATION OF THE PETITIONER;
IN THE SUBJECT OF THE PLEA: REFUSED THE SUPPLICANT FOR THE WHOLE;
SO IT WAS DECIDED. In a meeting of the Judges ' Meeting
attended by the nine Judges of the Constitution, the Moh. Mahfud MD, as Chairman
arrested Member, Achmad Sodiki, Ahmad Fadlil Sumadi, Anwar Usman,
Muhammad Alim, Hamdan Zoelva, M. Akil Mochtar, Harjono, and Maria Farida
Indrati, respectively as Member, at on Tuesday, respectively. date twenty-five, September, year two thousand twelve, and spoken in the plenary session of the Constitutional Court open to the public at on Wednesday, the twenty-sixth, September, year two thousand twelve, by eight Judges Constitution, that is Moh. Mahfud MD, as the Chairman of the Member, Achmad
Sodiki, Ahmad Fadlil Sumadi, Anwar Usman, Muhammad Alim, M. Akil Mochtar,
68
Harjono, and Maria Farida Indrati, respectively as Members, with
accompanied by Saiful Anwar as the Panitera Replacement, attended by
the applicant/her ruler, the House of Representatives or the one representing, and
Government or that represents.
CHAIRMAN
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Ahmad Fadlil Sumadi
ttd.
Anwar Usman
ttd.
Muhammad Alim
ttd.
M. Akil Mochtar
ttd.
Harjono
ttd. Maria Farida Indrati
PANITERA SURROGATE,
ttd.
Saiful Anwar
