Key Benefits:
VERDICT Number 42 /PUU-VIII/2010
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecuting, and severing the case constitution on
first and last level, dropping a ruling in case of application
Testing Act No. 13 of 2006 on Witness Protection and
Victim to the Basic Law of the State of the Republic of Indonesia 1945,
filed by:
[1.2] Drs. Susno Duadji, S. H, M. Sc., persons of Indonesian nationals,
Polri's work, address on Cibodas Road 1 A-3 Number 7, Housing
Cinere Indah, Cinere, Depok, West Java.
Based on the Letter of Power dated to 09 June 2010, gives power to KRH.
Henry Yosodiningrat, S.H., Mohamad Assegaf, S.H., Dr. Maqdir Ismail, S. H, LL.M.,
Ari Yusuf Amir, S.H. M.H., Dr. H. M. Efran Helmi June, S.H., M. Hum., Erwin
Moeslimin Singajuru, S.H., Zul Armain Aziz, S.H., H. M. Husni Maderi, and S. Sos.,
S.H., Tjoetjoe Sandjaja Hernanto, S.H., Hj.Kartika Princess Yosodiningrat, S. H, LL.M.,
H. Radhitya Aristodiningrat, S.H., Akhmad Fahmi Budiman, S.H., M.H., Ilham P.
Nugroho, S.H., Dr. T.N. Syamsah, S.H., M.H., Agus Salim, S.H., M.H., and Elly
Muzdalifah, S.H., entirely of Advocates address at the Chandra Kartika Hotel, Building
The office of Lt. 5, Jalan Jenderal Gatot Subroto, Jakarta 12060, either alone-
alone and together act for and on behalf of the power-giver;
Next is referred to as ------------------------------------------------------------ Applicant;
[1.3] Read the application from The applicant;
Heard the caption from the applicant;
Checking the evidence from the applicant;
hearing the experts from the applicant;
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Hearing and reading written captions from the Government;
Hearing and reading the written caption from the House of Representatives
People;
Read the written caption from the Witness Protection Agency and
Victim;
Read the written conclusions of the applicant and the Government;
2. SITS LITIGMENT
[2.1] A draw that the applicant has submitted a plea that
then lists in the Constitutional Court of Justice (subsequently called
The Court of Justice) on Wednesday 16 June 2010 with registration
case Number 42/PUU-VIII/2010, which was corrected and received in
The Court of Justice on July 8, 2010, outlines the things as
following:
The authority of the Constitutional Court and Legal Standing Applicant
I. Constitution of the Constitutional Court
1. The applicant pleads for the Constitutional Court ("MK") perform
testing against Section 10 of the paragraph (2) Act Number 13 of the Year
2006 on Witness Protection and Victims ("Law No. 13 Year 2006");
2. References to the provisions of Article 24C paragraph (1) of the Constitution of 1945 juncto Article 10 of the paragraph
(1) letter a Law Number 24 of 2003 on the Court
Constitution ("MK Act"), which confirms that one of the powers
the Constitutional Court of Justice is conducting statutory testing
against the Basic Law of 1945 ("Constitution of 1945").
Article 24C paragraph (1) of the 1945 Constitution states that:
" The Constitutional Court is authorized to judge at first level and
The final verdict is final to test the Act
against The Basic Law, ... "
Article 10 paragraph (1) of the letter an Act of MK among others states:
"The Constitutional Court is authorized to judge at first level and
the final verdict of the final is final":
a. testing legislation against the State Basic Law
Republic of Indonesia Year 1945, ... "
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3. In addition, Article 7 of the Law Number 10 of the Year 2004 on
The Establishment of the Laws, set that
hierarchical of the Constitution of 1945 was higher than the legislation, by
hence any provision legislation should not be contradictory
with the Constitution of 1945. If there is a provision in the legislation
contrary to the 1945 Constitution, then the provision can be
is being honed to be tested through an undrased testing mechanism;
4. Based on these items above, then the Constitutional Court
authorities to examine and cut off the application of the Invite-
Invite this.
II. Legal standing (legal standing) supplicant
1. That Article 51 paragraph (1) of the MK Act governs that:
" The applicant is a party that considers the right and/or authority
its constitutionality is harmed by the law, that is:
a. Individual citizen of Indonesia;
b. The unity of indigenous law society as long as is still alive and appropriate
with the development of the community and the principle of the Unity State
The Republic of Indonesia is set in undrau;
c. Public or private legal entities; or
d. State agencies.
Next explanation Article 51 of the paragraph (1) states:
Which is referred to "constitutional right" is the rights set
in the Basic Law of the Republic of Indonesia in 1945.
The explanation of Article 51 of the paragraph (1) of the MK bill does not regulate the authority
constitutional, but by analyzing it with the definition of "right
constitutional" it can be concluded that the intended authority
constitutionality is the authority set up in the 1945 Constitution.
2. That the applicant is an individual of the Indonesian Citizen (Evidence P-3)
whose constitutional rights have been harmed by the enactment of Article 10
paragraph (2) of the Law No. 13 Year 2006 on Protection
Witnesses and Victims ("Act"). No. 13 Year 2006 ") which set up:
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" A witness who is also a suspect in the same case could not
be released from criminal charges if he turns out to be legally proven and
convinces the guilty, but his testimony can be taken into consideration
the judge in easing the criminal to be dropped ".
3. That the applicant is a person of the appropriate Indonesian citizen
Article 27 paragraph (1) of the Constitution of 1945 reserves the right to participate in
the development of the Right to participate in the law and governance
where the applicant reports the existence of a crime that occurred
systematic and structured Republic of Indonesia Police case:
To the Task Force Eradication Task Mafia (SATGAS) on
date 18 March 2010 and 12 April 2010 (Evidence P-4) with
reporting:
-Criminal Tindak and money laundering alleged performed by
suspect Gayus Tamheap.
-Tindak criminal corruption/bribery on the case of PT. Salmah Arwana Lestari
-Budget use in the Polri Mabes and the entire Polda Polda
Indonesia.
To the Commission III of the Republic of Indonesia on April 8, 2010, (Evidence P-5) with
reporting:
-Criminal and money laundering charges allegedly carried out by
suspect Gayus Tamheap.
-Criminal action/bribery on the case of PT. Salmah Arwana Lestari
4. The applicant has also given testimony in the media
the mass both print and electronic about alleged corruption crimes
that is systematically and structured also involving the law apparatus
both in The police, the prosecutor and the Judge in the Court. (vide Proof
P-5);
5. That the applicant's participation was well-responded by
authorities including the Police Department who have done
the investigation and investigation of the applicant's Laporatas
in particular Tindak Criminal and Money Laundering allegedly carried out by
suspect Gayus Tamstockpile and currently the process is proceeding on;
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6. That after the reporting the applicant has applied
witness protection to the Witness Protection Society and the Victims on
dated 4 May 2010 (Evidence P-6) against the cases that have been petitised
report to The House of Representatives and the Legal Mafia Eradication Task Force,
and subsequently have been made up of the PERJ-007/
I. 3/LPSK/05/2010 Protection Agreement between LPSK with the applicant (Proof P-7)
7. That on behalf of the other applicant, the criminal charges/bribery are
on PT. Salmah Arwana Lestari, the police investigation, the applicant
has been called by BARESKRIM POLRI as a Witness to the Police Report
Pol Number: LP/272/IV/2010/Bareksrim dated April 21, 2010 with a letter
Call Number S. Pgl/234/IV/2010/Pidkor&WCC which is on the 30th
April 2010 and is based on the Call Number S. Pgl/283/V/2010/
Pidkor &WCC on 7 May 2010. (Evidence P-8)
8. That on May 11, 2010, at the time of the applicant meeting
Police call as a witness, the subsequent Polri increased the status
The applicant became the suspect and further made the arrest,
the detention and investigation To the applicant for a matter which
reportedly the applicant is a criminal of corruption in bribes to PT. Salmah
Arwana Lestari is based on the Detention Order Letter SP.Han/12/
V/2010/Pidkor &WCC and subsequently the applicant is placed at home
the Central Jakarta State prisoner in Mako Corps Brimob Polri since 11th
May 2010. (Evidence P-9);
9. That the detentions carried out by BARESKRIM POLRI
against the applicant are also based on the caption Kadiv Humas Mabes
Polri in some mass media both print and electronic (Evidence P-10)
which at its core says The pretrial action against the applicant
is also based on the provisions of Article 10 paragraph (2) of the Act
Number 13 of 2006 on Witness Protection and the Victims, which
reads:
" A Witness is also a suspect in the same case could not
be released from criminal charges if he turned out to be legally proven and
convinces the guilty, but his testimony may be considered
judge in easing of the criminal to be dropped ";
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10. That the applicant after undergoing detention was also subject to status
The suspect in the case of Criminal Corruption in the Management
Use and responsibility of the Hybah Budget from Pemprov Java
West of the Year 2008 by the Javanese Polda West and its broadcasts, based on
Police Report Number Pol: LP/261/IV/2010/BARESKRIM dated April 12
2010, as listed in the BAP Applicant as Suspect
date 10 June 2010 (Evidence P-10);
11. That the applicant's previous position is the witness of the por and
has requested legal protection as a witness to the Agency
Witness Protection and the Victim but has suddenly been made
the suspect and at once. with instantaneous action
incarceration, is a violation of the rights
constitutionality and the applicant has been harmed by the interpretation that
one of the provisions of Article 10 of the paragraph (2) Act Number 13 Year
2006 on the Protection of Witness and Victims by the Police Service;
12. That as a result of the arrest, detention and
of the investigation as the suspect, the applicant suffered a loss
constitutional:
First, the applicant has lost the right to participate. in the
law and governance, as guaranteed by Article 27 of the paragraph (1) of the Constitution
1945. The right to participate in this law and government is lost
since the applicant has been detained by the Investigator for reasons other than as
The witness, the applicant has also been designated as a suspect;
Second, The applicant has lost the right to recognition, guarantee,
protection, and fair legal certainty, as guaranteed by
Article 28D paragraph (1) of the 1945 Constitution;
Third, The applicant has lost the right over a sense of safety and protection
of the threat of fear to commit, as guaranteed by Article
28G paragraph (1) of the 1945 Constitution;
Fourth, The applicant has lost the right and freedom to meet
fair demands in accordance with moral considerations, religious values,
security, and public order in a democratic society,
as guaranteed by Article 28J paragraph (2) of the 1945 Constitution;
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13. That refers to the Court of Justice since the termination of the Number
006 /PUU-III/ 2005 dated 31 May 2005 and Putermination Number 11 /PUU-V/2007
September 20, 2007 and subsequent ruling, establishment
that loss of rights and/or constitutional authority as
referred to Article 51 of the paragraph (1) the MK bill must meet 5 (five) terms, that is:
a. the rights and/or constitutional authority of the applicant
provided by UUD 1945;
b. the right and/or constitutional authority by the applicant
is considered disadvantaged by the expiring laws
testing;
c. or at least a potential that is according to the reasoning that
reasonable is certain to occur;
d. A causal relationship (causal verband) between the loss
is referred to and the legislation is moveed to test;
e. It is possible that with the request of the request, then
the constitutional loss as a postulate will not or no longer
occurs;
Thus there are five absolute terms that must be met in
testing the legislation is wired to the Basic Law, the applicant
has a legal standing. The first condition is the applicant qualification
as a citizen of the Republic of Indonesia, to act as
the applicant as defined in Article 51 of the paragraph (1) of the MK Act. Terms
second with the enactment of a law of rights and/or authority
the constitutional applicant is harmed. Third, the constitutional loss
is specific. Fourth the loss is incurred as a result of the
legislation please. Fifth, that constitutional loss
will not happen again if this plea is granted.
14. That the above description proves that the applicant (the citizen
of the Indonesian state) has a legal standing (legal standing) for
acting as the applicant in the act of testing of the legislation
this.
That based on the qualifications and conditions above, then the applicant
Indonesian citizen, has really been aggrieved rights and/or
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its constitutional authority as a result of the enactment of Article 10 paragraph (2) Invite-
Invite Number 13 Year 2006 on Witness Protection and Victims,
because its position as a witness may be a suspect in the
same case. So that her right to be protected
becomes lost. Finally, in the event of a testing request against
provisions of Article 10 paragraph (2) of the Law No. 13 of 2006 on
Witness Protection and Victims, granted, then rights and/or
the constitutional authority of the applicant is not It's hurting As such,
the legal standing (legal standing) the applicant has been appropriate and
meets the applicable provisions.
III. The Reasons For The Applicant To Apply For Testing Article 10
paragraph (2) Act Number 13 Of 2006 On Protection
Witnesses and Victims
1. That since the change in the 1945 Constitution, it has occurred
a fundamental change in the Republican state system
Indonesia. Principal changes are made in the acquisition of human rights
humans, including the similarity in law and government,
the rights to the recognition, guarantees, protection, and legal certainty that
is fair;
2. That each person is entitled to personal protection, family,
honor, dignity, and berthak for the safe and protection of
the threat of fear for committing or not doing something that
constitutes a fundamental right;
3. That juridical of the Constitution of 1945 provides the assurance of all citizens
simultaneously its second in law and government and compulsory
uphold the law and governance as affirmed by Article
27 verses (1) of the 1945 Constitution;
4. That the 1945 Constitution of the Constitution provides a very strong guarantee
for the recognition of human rights. UUD 1945 Article 28D
paragraph (1), provides an instrument of the right of recognition, assurance,
protection, and fair legal certainty as well as the same treatment in
before the law;
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5. Thus, in accordance with the provisions of the Constitution of 1945, Article 28G paragraph (1)
states:
" Everyone is entitled to personal protection, family, honor,
dignity, and the hartaobjects under his rule, and entitled to
the sense of safety and protection of the threat of fear to do or
not doing something that is an asas right ".
But in fact, legislation on the right of safe sense
and protection from threat of fear to do or not to do
something still contains fundamental flaws, because with
reason at the same time a person can be specified as
a witness and as a suspect, without any apparent protection against
the position as a witness;
6. That Article 10 paragraph (1) is clearly related and inseparable
of Article 4 of Law Number 13 of the Year 2006, stated, " Protection
The witness and the victim aim to provide a sense of security to the Witness and/or
The victim in provide a description on any judicial process
criminal ". Protection against this witness is generally known as
a protection designation against "whistleblower" which cannot be punished.
In this relationship, Stephen M. Kohn, stated, " ....courts have
recognized that the speech of government employees must be protected,
even if it includes direct criticisms of their various agencies. Courts have
frequently recognized that "an employee's First Amendment interest is
entitled to more weight where he is acting as a whistleblower exposing
government corruption". As the Supreme Court noted, government
employee speech on matters of public concern often among the "highest
rung" in the "hierarchy of First Amendment values" and is "entitled to special
protection" (Stephen M. Kohn: 2001, Concept and Procedures in
Whistleblower Law, Quorum Books, h. 120)
7. That protection against witnesses in Indonesia is especially what
relates to corruption eradication, not solely
under the provisions of Article 10 paragraph (1) Act No. 13 of 2006,
due to on 18 April 2006 Indonesia has signed United
Nations Convention Against Corruption, 2003 (United Convention
Nations Anti Corruption, 2003) on which in Article 32 of the UN
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Convention Against Corruption 2003 which was already signed by
Indonesia provides protection to the witnesses who provide
captions and provide protection to the person reporting
presence of a corruption criminal.
In Section 32 of the paragraph (1), it is stated,
" Each State Party shall take appropriate measures in accordance with its
domestic legal system and within its means to provide effective protection
from potential retaliation or intimidation for witnesses and experts who give
testimony concerning offences established in accordance with this
Convention and, as appropriate, for their relatives and other persons close
to them ".
Then stated in Article 32 of the paragraph (2),
The measures envisaged in paragraph 1 of this article may include, inter
alia, without prejudice to the rights of the defendant, including the right to
due process:
(a) Establishing procedures for the physical protection of such persons,
such as, to the extent necessary and feasible, relocating them and
permitting, where appropriate, non-disclosure or not limitations on the
disclosure of information concerning the identity and
such persons;
(b) Providing evidentiary rules to permit witnesses and experts to give
testimony in a manner that ensures the safety of such persons, such as
the data testimony to be given through the use of communications
technology such as video or other adequate means.
8. That is because Indonesia has signed United Nations
Convention Against Corruption, 2003 (United Nations Convention-
The Anti-Corruption Nation, 2003), and its membership to Law No. 7
In 2006, it was announced that the United Nations Convention against Corruption (United Nations) was approved. for Indonesia the provisions of Article 32 paragraph (1) and paragraph (2)
legally binding, so that the State of the Republic of Indonesia is required
provide protection to witnesses who report on
corruption deeds as stated by Article 32 paragraph (1) and paragraph
(2) United Nations Convention Against Corruption , 2003 (Convention
United Nations Anti Corruption, 2003);
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9. That in consideration of the Act No. 13 of 2006
on Witness Protection and the Victims is stated,
" that one of the valid evidence tools in the criminal justice process
is the Witness and/or Victim's description. that heard, viewing, or
experienced its own occurrence of a felony in search effort and
found the clarity on criminal acts committed by the perpetrator
criminal acts ";
Also in Section 1 (1) Act Number 13 of the Year
2006 of Witness Protection and Victims Protection:
" Witnesses are persons who can provide information in the interest
inquiry, investigation, prosecution, and examination at the hearing
the court of a criminal case He heard it himself, he saw
himself, and/or he was alone ".
In addition to it was stated in Article 5 of the Law No. 13 of the Year
2006 on Witness Protection and Victims:
(1) A Witness and The victim was entitled to:
a. obtain protection for the security of the family's pribad, and the property
the object, as well as free from the Threat with respect to
the testimony that will, be, or have been given;
b. take part in the process of selecting and determining the form
protection and security support;
c. provides the caption without pressure;
d. got a translator;
e. free from a question that is rodent;
f. get information on the development of the case;
g. get information about the court ruling;
h. knowing in the case of the convict was released;
i. got a new identity;
j. get a new residence;
k. obtaining the replacement of the transportation costs according to
needs;
l. get legal advice; and/or
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m. obtaining assistance for temporary living expenses up to the time limit
protection ends.
(2) The right as referred to a paragraph (1) is provided to the Witness
and/or the Victims of a criminal offence in certain cases appropriate
with the LPSK decision.
10. That to provide a comparison of protection against Witnesses
in some countries can be seen in the table below:
No.
Country Name
Protection to a Rule Witness
set the Status
Suspect
1. United States
Protection of dismissals, demotions, temporary stops, threats, disorders and acts of discrimination.
Whistleblower Protection Act 1989
Not
2. South Africa Protection of occupational detriment or loss in relation to office or job;
Article 3 Protected Disclosures Act No. 26 Year 2000
Not
3. Canada Protection of Jobs that provides disciplinary punishment, demoted the rank, fired or committed any harm in terms of employment with the purpose of preventing workers from providing information to the government or to the end of the term. Legal enforcement agencies or to reply to workers who provide information.
Section 425.1 Criminal Code of Canada
4. Indonesia Witness Protection and Victims aim to provide a sense of security to the Witnesses and/or Victims in the criminal justice process.
Witnesses, victims, and prostitutes may not be prosecuted for reports, testimonies that will, moderate, or have been given it.
Article 4 Act No. 13 Year 2006
Article 10 paragraph (1) Act No. 13 of 2006
Article 10 of the paragraph (2) The witness who is also a suspect in the same case may be prosecuted.
5. New South Wales, Australia
-Identity is kept secret;-Protection of the follow
reprisals;-No accountability
criminally or perdata;-Protection of "defame"
(defamation claim)
(defamation claim)
(defamation claim)
(defamation claim) either);
-The conditional protection if the name is released to the media;
Section 20 and 21 Protected Disclosures Act 1994
Not
6. United Kingdom
-Should not be fired for being a whistleblower
-Protection of victimisation and adverse treatment/damages
Article 1 and 2 Public Interest Disclosure Act 1998
No.
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11. That specifically about the position of a witness who is also
a suspect in the same case is set up in Article 10 of the paragraph (2) Invite-
Invite Number 13 Year 2006 on Witness Protection and Victims,
stated:
" A witness who is also a suspect in the same case could not
be released from criminal charges if he turns out to be legally proven and
convinces the guilty, but his testimony can be considered a consideration.
judges in easing of the criminal to be dropped ";
12. That the existence of 4 Articles 10 verses (2) can be said suddenly
appears and set something not set in Law Number 13 of the Year
2006. Article 10 of the paragraph (2) of this law does not have a password that
is clear and strong with the matters governed by Law Number 13 of the Year 2006,
in particular in the sections before Article 10;
13. That the norm and or legal problems are governed by Article 10 of the paragraph (2)
Act No. 13 of 2006, known in the doctrine and practice of law in
countries that are of the Anglo-Saxon system as "Plea
Bargaining". In the plea bargain practice is done by making
a statement of guilt or known as "guilty plea". With
This guilty statement is hereby a defendant will get a reduction
sentence (Andrew Ashworth: 2000, Sentencing & Criminal Justice, third
edition, Butterworths, h. 24); because of a plea bargain, as
is proposed by John Sprack, at least four
understanding, " It can mean an agreement between the judge and the accused
that if he pleads guilty to some or all of the offences charged against him the
sentence will or will not take a certain form ........ Second, plea bargain
can mean an undertaking by the prosecution that if the accused will admit to
certain charges they will refrain from putting more serious charges into the
indictment or will ask the judge to impose relatively light sentence .......
Thirdly, plea against may refer to the prosecution pleads with the
defence that if the accused pleads guilty to a lesser than they accept the
plea .... Lastly, it may refer to the prosecution note not to proceed on
one or more counts in the indictment against the accused if he will plead
guilty to the remainder " (John Sprack: 2002, EMMINS ON CRIMINAL
PROCEDURE, Ninth Edition, Oxford, h. 251);
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14. That the legal regime that governs the position of witness and the victim is very
in contrast to the legal regime that governs "witnesses who are also suspects
in the same case". Legal provisions governing witness rights and
victims are clearly and expressly set in Law Number 13 of the Year 2006,
whereas the legal regime that governs the position of the witness as well
being a suspect in the same case is regulated by the KUHAP Act No. 8
In 1981, limited to providing protection against interests
suspects or defendants, have not given any protection of interest
witnesses or victims of criminal conduct;
15. That the provisions of the position of a witness were also
the suspect in the same case according to Article 10 of the paragraph (2) Invite-
Invite Number 13 Year 2006 on Witness Protection and Victims,
in fact Contrary to the provisions of Article 27 of the paragraph (1) of the Constitution
1945, which states:
" All citizens are subject to both in the law and
the government and shall uphold the law and the government with
no except for ";
article 28D paragraph (1) of the 1945 Constitution, which states:
"Everyone is entitled to the recognition, assurance, protection, and
fair legal certainty as well as the same treatment before the law";
Article 28G paragraph (1) of the 1945 Constitution, stated:
" Everyone is entitled to the personal self-protection, family, honor,
dignity, and property that under his power, as well as entitled to
the safe and protection of threat of fear to do or
not do something that is a birthright ";
Article 28J paragraph (2) of the 1945 Constitution states,
" In exercising its rights and freedom, each person is subject to submission
to the restrictions set forth with the legislation with
The intent is solely to warrant recognition as well as the respect of
rights and freedom of others and to meet fair demands
in accordance with moral considerations, religious values, security, and
Public order in a democratic society ";
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16. 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 asas of its existence in the Indonesian legal system
is protection against a witness;
17. The applicant has been designated as a suspect and
detained by the Indonesian National Police based on the Warrant
The arrest of May 10, 2010 has only been sourced from a witness description
that became the The suspect in the case that the applicant reported to
the Commission III of the House and the Legal Mafia Eradication Task Force were supported
by another tool of evidence, or in other words the applicant has been set
as the Suspect, arrested, detained and bewitched as Suspect by
The Polri Investigator without being based on the tool Enough evidence. (vide Proof
P-9);
18. That thus proved that the arrest, detention
and the inquiry of the applicant as the suspect by the Polri Investigator were
based on the "conditioning" of the situation by investigators and lies that
carried out by checked at the request of investigators, and not based on
valid evidence according to law;
19. That even though earlier the applicant had requested protection
to the LPSK in accordance with the Letter of the applicant on 4 May 2010 (vide proof
P-6), however the applicant remains arrested and held by the Investigator
Barescream, for reasons that the Investigator's actions have been
in accordance with Article 10 of the paragraph (2) Act No. 13 of 2006, which
states,
"A witness who is also a suspect in the same case cannot
be released from criminal charges if he turns out to be legally proven and
convinces the guilty, but his testimony can be considered consideration
the judge in easing the criminal to be dropped";
20. According to Article 27 of the paragraph (1) of the 1945 Constitution, which states:
"All citizens simultaneously in the law and
the government and shall uphold the law and the government with
there is no exception";
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Article 28D paragraph (1) of the 1945 Constitution states,
"Everyone is entitled to the recognition, guarantee, protection, and
fair legal certainty as well as the same treatment before the law".
Norma-norms The above constitution reflects the principles of human rights
human beings that apply to all human beings universally. In
the same qualifications, any human being, included in it the applicant;
21. That the provisions of Article 10 of the paragraph (2) Act No. 13 of 2006 have
opened up the opportunity for Investigators to intervene against
the authority of the LPSK without control of the judicial branch of power, because
the designation of a witness The suspect and then performing
detention can be performed unilaterally by the Investigator without
considering the authority of another state agency that
has an obligation to provide protection against witnesses in the
criminal case;
22. That due to the absence of clear and unequivocal formula to
the position of "witness" and "suspect" as well as in how
a person can be made a "suspect" when at the same time
also status as a The "snitch witness" has generated multi-commentaries and
potentially elicits an unconstitutional interpretation, hence
provisions of Article 10 of the paragraph (2) Act No. 13 of 2006 have incur
legal uncertainty and conflicting with constitutional rights
as it is set in the 1945 Constitution;
23 . The description above proves that the provisions contained in
Article 10 of the paragraph (2) Act No. 13 of 2006 contradictory to the principle
recognition, guarantee, protection and fair legal certainty,
self-protection personal, family, honor, dignity, and property
under his power, as well as entitled to a sense of security and
protection from the threat of fear to do or not to do
something that is a fundamental right, as referred to by Article
28D paragraph (1) of the 1945 Constitution and and Section 28G paragraph (1) of the 1945 Constitution;
24 . That under the terms of Article 28 of the Constitution of 1945, is to provide
protection to citizens of the treatment by citizens who
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others 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 with the law with
the intent is solely to ensure recognition and respect for
the rights and liberties of others and to meet the fair demands
in accordance with moral considerations, religious values, security, and
Public order in a democratic society ".
The formulation of Article 28 contains a constitutional norm that can limit
a person ' s right and state (through legislation), but the restriction
is done by terms of its limited nature, namely
" with means solely to guarantee ... and to meet
fair demands ... ". In other words, the constitution limits the rights-
certain rights of the citizens (throughout the restriction it is done
through legislation) and the handler must be performed
proportionally according to destination or other interests that are to
be protected by the legislation.
25. That Article 10 paragraph (2) is also contrary to Article 28J of paragraph (2)
Constitution of 1945, because Article 10 of the paragraph (2) contains conflict with Article 28J
paragraph (2) of the Constitution of 1945, because this section potential limits " respect
over rights and the freedom of others and to meet fair demands
in accordance with moral considerations, religious values, security, and
public order in a democratic society ", especially
in relation to the position as "whistle blower". In other words, the existence of this section, the existence of this section, prevents people from performing "fair demands
in accordance with moral and religious values" such as
conducting the prevention and or disclosure of corruption, as it would
is bad for the witness or the snitch in corruption, because the witness
or the snitch can be as a witness and as well as
Suspect;
26. That the existence of alleged felon involving the applicant
should have been associated with the provisions of Article 10 of the paragraph (1) Act No. 13
2006, "Witnesses, Victims, and Report cannot be prosecuted legally
well criminal And the data on the report, the testimony that will be, is,
18
or has been given it", since the witness must be in protective custody and
the award for the sake of legal certainty;
27. The provisions of Article 10 of the paragraph (2) Act No. 13 of 2006, if used
by being interpreted incorrectly then section a quo constitute the section
potential qualified violates the principle of respect and recognition
against the right of Human rights, in this case the rights of the witness and the victim. With
the formulation of that section, then section a quo is disproportionable and
exaggerates and itself violates Article 28D paragraph (1) of the Constitution
1945 and Article 28G paragraph (1) of the 1945 Constitution;
28. That Section 10 paragraph (2) of Law Number 13 of the Year 2006 a quo, if used
by being interpreted incorrectly to impede participation
the public to participate in the law and governance,
especially in Make a report of the alleged crime,
as is the corruption and or the legal mafia as reported by
The applicant;
29. That Section 10 of the paragraph (2) Act No. 13 of 2006 a quo, if used
is to be interpreted incorrectly as a potential to omit
legal certainty, because someone who becomes a reporter or witness
is the crime, can be considered a part of that crime and
can be criminally charged for the crimes he has received
as it happens to the applicant (Proof P-11);
30. That Section 10 of the paragraph (2) of the Act No. 13 of 2006, if used
by being interpreted incorrectly as missing the right to a sense of safety
and protection from the threat of fear to commit, to the por or
witness one crime because it can be used as part of the crime
it can be prosecuted;
31. That Section 10 of the paragraph (2) of the Law Number 13 of the Year of 2006, if used
by being interpreted incorrectly to prevent people from
conduct "fair demands in accordance with morals and values
religious" Do the prevention and or disclosure
corruption as usual is done by "whistle blower", as it would
be bad for witnesses or whistleblowers in corruption cases, cause of witnesses
19
or that pronunciation may be as a witness and as well as
Suspect;
32. That Section 10 of the paragraph (2) of the Number 13 Year Act of 2006 has
adversely harmed the applicant, as:
(1) The applicant has been detained and designated as a suspect by
Investigators and dicars are other errors;
(2) The applicant has lost his freedom to provide testimony
to the institution he trusted and freedom stated
the opinion;
(3) The applicant has lost the right to communicate properly and
humane;
(4) The applicant has been subjected to intimidation during the detention;
(5) the applicant have been subjected to inhumane treatment, because
there are undeserved restrictions to meet with family
and relatives;
33. That the arrest, arrest and examination of the applicant as
The suspect by the investigator has no urgency, in addition to the embodiment of the reply
grudge against the applicant as an example of the problem in
use and accountability budget grant from Pemprov Java
West of 2008 which is slated to the applicant (Proof P-12),
the problem that occurred this 2008 has been once audited by the BPK
and declared untroubled, even over success The applicant at
Polda of West Java, the applicant has been promoted to Kabarescream.
After the applicant gives the testimony of a legal mafia practice in
the police institution then the issue is regrettable and
The applicant is set to be a suspect. It is real-real
unflattering misdeeds of Polri investigators and enforcement officers
other laws as well as members of the public (legal mafia) in cooperation
commit premeditated, systematic and criminal crimes. Structured.
34. That it is urgent to prevent Polri's Investigations from using
provisions of Article 10 of the paragraph (2) Act No. 13 of 2006, because this
is important to provide society with the Institute
Witness Protection and the Victims, in providing protection against
20
whistle blower that opens and or reports openly to
the society is corrupt in the environment where it works in order
eradicate corruption; other than that it is also urgent to terminate
dispute of the authority of the Investigator of Police and the Protection Instituts
Witnesses and Victims (LPSK) involving the President of the Republic of Indonesia;
35. That is therefore highly relevant and significant in the publication of the ruling
provision in the case of testing Article 10 of the paragraph (2) Act No. 13 of the Year
2006 against the 1945 Constitution was to prevent the occurrence of the breach
rights of the the applicant as a human if the legal norm of Article 10 paragraph
(2) Act No. 13 of 2006 is applied while the examination of
the subject is still running despite constitutional rights
The wronged applicant cannot be restored in final verdict. In
the case a quo of the sidelines is required to prevent the possibility
the constitutional loss of the applicant if it becomes a defendant when the basis
the law or the statute section about it is being examined in
testing against the 1945 Constitution on the Court.
36. Factually there are differences in interpretation between the Agency
Witness Protection and Victims (LPSK) with the Polri Investigator, against
the meaning contained in the sense of "witness who is also a suspect"
as affirmed in Article 10 of the paragraph (2) Law Number 13 of the Year
2006 on the Protection of Witness and Victims;
37. Differences in interpretation of case arrest, detention and
inquiry as Suspect of the applicant between the Protection Institute
The Witness and the Victim with the Investigator Polri, have involved the President
The Republic of Indonesia as Chief Government, as the Institute
Witness Protection and Victims to the President (LPSK) have requested
the President to be a facilitator in dispute resolution
the authority between the Polri and the Witness Protection Agency and the Victims
to the President (LPSK); (Evidence P-13)
38. That with the difference in interpretation between the Agency
Witness Protection and Victims (LPSK) with the Polri Investigator, about
a place worthy of feeling equally as having a position and
the authority in the question of the applicant, then It should be appropriate.
The applicant's position is restored in its original state as a free man,
21
prior to the arrest, detention and inquiry as
Suspects by the Polri Investigator;
39. That the politics of the legislation since the change of the 1945 Constitution, in
its nature is to provide a worthy respect for rights
human rights, though in real still there is a waiver of rights
in particular by the institution Certain as an authorization holder may
interpret certain provisions. Thus the legislation of the times
can be interpreted itself by harming the interests of the people,
the seeker of justice and truth and does not side with the interests
of the respect of human rights;
40. That the applicant is a citizen of Indonesia, is also entitled to
the equality of the law and governance as well as entitled to
equal treatment in front of the law as warranted in
Article 27 of the paragraph (1) and Section 28D of the paragraph (1) UUD 1945. Accordingly,
not overtly the applicant also posits a legal fact, that
a reporter witness who gave a description in the case of alleged
a criminal corruption charge is not or has not been convicted felon, that is between
another (Evidence P-14):
a. Miranda Gultom bribery case handled by KPK, for witnesses
por al por Agus Tjondro has been released from the lawsuit as
Suspects.
b. The Bank Indonesia Foundation fund corruption case, for Anwar's witness
Nasution, as the giver of information released by the KPK for not
was made a suspect.
41. That therefore, is a conditio sine qua non for
human rights respect, to conduct testing against
laws containing "defects" which can be interperable
as they are and in accordance with its interests by the authority holder
specified;
42. That the protection of the witness is in its nature, in order for the por,
as stated in the General Description of the Nomor13 Year Act
2006, it gets " ... adequate legal and security protection over
its report, so that he does not feel threatened or intimidated either right
nor his soul. With a guarantee of legal and security protection
22
that, expected to create a possible state
society no longer feels afraid to report a felony
which he knows to law enforcement, for fear or fear
His soul is threatened by certain parties ", including investigators.
43. All of the above descriptions prove that the assignment of a witness
to be a suspect who can be arrested, detained and bewitched as
The suspect by the investigator has been dedicating or at least potentially
shrinking the The independence of the Witness Protection Agency and the Victims, which
The task of providing protection to witnesses and victims who
reported a criminal action;
44. That by looking at the facts, it is already an authority
Constitutional Court (MK) to carry out the task that it embed,
which was mandated to him by the 1945 Constitution. In accordance with the spirit
amanat UUD 1945 to MK, MK was the guardian of the Constitution
and the final interpreter of the Constitution. Therefore, based on
the above description of MK was moted for declare Article 10 paragraph (2) Act
Number 13 of 2006 in conflict with Article 28D paragraph (1), Article 28G
paragraph (1) of the Constitution of 1945, as well as Article 28J paragraph (2) of the Constitution of 1945, and therefore
unconstitutional it is stated that it does not have a legal force that
binds.
45. That the applicant is also aware, if the Constitutional Court
states Article 10 of the paragraph (2) Act No. 13 of 2006 contradictory
with Article 28D of the paragraph (1) of the Constitution of 1945 and Article 28G of the paragraph (1) of the 1945 Constitution
and has no legal force binding, then it will be
legal void (wetsvacuum) regarding a witness as well
being a suspect in the same case cannot be released from
criminal charges. To address the legal vacuum (wetsvacuum)
it, the applicant pleads to the Constitutional Court for a suggestion
may consider providing a constitutional interpretation of
Article 10 of the paragraph (2) Act No. 13 of the Year 2006, still has the power
the law is binding throughout a witness who is also a suspect
in the same case cannot be released from criminal charges
it must be defined that the position as a suspect specified
before providing testimony in the case;
23
since MK is the final interpreter of the Constitution then MK
is mohoned to at least provide a constitutional interpretation
that is.
IV. Conclusion
1. That the applicant has a legal standing in case of submission
this request;
2. That the applicant as a citizen of Indonesia has done
its obligation to provide a report of alleged criminal offences
corruption involving law enforcement officers in some cases between
another: Criminal Tindak and Money laundering allegedly carried out by
suspect Gayus Tampile, Tindak criminal corruption/bribery on the case of PT.
Salmah Arwana Lestari, as well as the use of APBN funds, Hibah, Credit
Export by Mabes Polri and Polda-Polda throughout Indonesia;
3. That the applicant has suffered a constitutional loss:
First, the applicant has lost the right to participate in
the law and the government, as guaranteed by Article 27 of the paragraph (1) of the Constitution
1945. The right to participate in this law and government is lost
since the applicant has been detained by the Investigator for reasons other than as
The witness, the applicant has also been designated as a suspect;
Second, the applicant has loss of rights to recognition, warranty,
protection, and fair legal certainty, as guaranteed by
Article 28D paragraph (1) of the 1945 Constitution;
Third, the applicant has lost the right to feel safe and protection
of the threat of fear to commit, as guaranteed by the Article
28G paragraph (1) of the 1945 Constitution;
Fourth, the applicant has lost the right and freedom to meet
a fair charge in accordance with moral considerations, religious values,
security, and public order in a democratic society,
especially those related to "the prevention of corruption" as
is guaranteed by Article 28J paragraph (2) of the 1945 Constitution;
4. That the applicant has been arrested, detained and established as
The suspect and is being held as a suspect based on the witness description
which was given due to the "conditioning" of the situation by investigators and
24
lies committed by the check on the investigator ' s request, and
not based on legal proof according to the law;
5. That Article 10 paragraph (2) Act No. 13 of 2006 a quo, potentially for
impeded the participation of the public to participate in the law
and the government, especially in making reports of a crime
The abbreviation, such as the existence of corruption and or the legal mafia
as reported by the applicant;
6. That Article 10 paragraph (2) Act No. 13 of 2006 a quo, potentially for
eliminating any legal certainty, since a person who is
A report or a witness to a crime, can be considered a part of
the crime it and may be criminally charged for the crimes that
report it as it happened to the applicant;
7. That Section 10 of the paragraph (2) of the Act No. 13 of 2006, potentially
is a bad precedent thus eliminating the right to safe sense and
protection from the threat of fear to commit, to the por or
witness one crime because it can be used as part of the crime
that can be prosecuted;
8. That Section 10 of the paragraph (2) of the Act No. 13 of 2006, potentially
is a bad precedent and potentially prevents people from doing
"fair demands in accordance with moral and religious values" such as
performing The prevention and or disclosure of corruption as
is usually done by "whistle blower", because it would be bad for
witness or the whistleblower in the corruption case, because the witness or that reporter
can be made as a witnesses and as a suspect;
9. That Section 10 of the paragraph (2) of the Number 13 Year Act of 2006 has been
adversely detris to the applicant, because:
a. The applicant has been detained and designated as a suspect by the Investigator
and is looking for another error;
b. The applicant has lost his freedom to provide testimony
to the institution he trusted and freedom stated
the opinion;
c. The applicant has lost the right to communicate enviable and
humane;
d. The applicant has been subjected to intimidation during the detention;
25
e. The applicant has been subjected to inhumane treatment, because
there are unworthy restrictions to meet with family
and relatives;
f. That the arrest, arrest and investigation of the applicant as
The suspect by the investigator has no urgency, in addition to the embodiment of the
revenge against the petitioner who has been real-real
unraveling the unflattering deeds of Police and police investigators
Other law enforcement as well as members of the public (legal mafia) who
in collaboration doing premeditable, systematic and
structured crime;
10. Factually there are differences in interpretation between the Agency
Witness Protection and Victims (LPSK) with the Polri Investigator, against
the meaning contained in the sense of "witness who is also a suspect"
as affirmed in Article 10 paragraph (2) Law Number 13 Year
2006 on Witness Protection and Victims;
11. That with the difference in interpretation between the Agency
Witness Protection and Victims (LPSK) with the Polri Investigator, about
a place worthy of feeling equally as having a position and
the authority in the question of the applicant, then It is appropriate and appropriate
The applicant's position is returned in its original state as a free man,
prior to the arrest and arrest by the Polri Investigator;
12. That the politics of the legislation since the change of the 1945 Constitution, in
its nature is to provide a worthy respect for the right
human rights, although in real still there is a waiver of rights
in particular by the institution Certain as an authorization holder may
interpret certain provisions. Thus the legislation of the time
can be interpreted by harming the interests of the people and not
siding with the respect of human rights respect;
13. That the protection of the witness is in its nature, in order for the reporter
to have adequate legal and security protection over
his report, so that he does not feel threatened or intimidated by the right
nor his soul. With guarantees of legal and security protection
it is expected to create a possible state
society no longer feels afraid to report a criminal offense
26
which he knows is the law apparatus itself, as it worries
or fears his soul is threatened by certain parties, including investigators;
14. The provisions of Article 10 of the paragraph (2) Act No. 13 of 2006 a quo are
a potential section of which qualified violates the principle of respect and
recognition of human rights, in which case the rights of the witness and
victims. With the formulation of this section, the a quo is not
proportional and excessive and in itself violates Article 28D
paragraph (1) of the 1945 Constitution, Article 28G paragraph (1) of the Constitution of 1945, and Article 28J paragraph (2)
Constitution of 1945;
15. That to protect the rights of the applicant is not continuously violated
and does not give birth to the uncertainty of the law, then the ruling provision in
the applicant in testing of Article 10 of the paragraph (2) Act Number 13 of the Year
2006 against the Constitution 1945 is extremely urgent to prevent
the occurrence of a violation of the applicant's rights if the norm of law
is applied while examination of the subject is still running
despite the constitutional rights of the Wronged Applicant could not
be restored in the final verdict. In the case of a quo the ruling
is necessary to prevent the possibility of constitutional loss of the right
The applicant should remain a suspect by decision and or
the use of the authority of an officer who is not entitled to the right to be used or an official
has ended his term.
V. Provision
1. That given Article 58 of the Constitutional Court Act, which states
that the Court of Justice is not retroactive, it is to prevent
of the violation of the applicant ' s constitutional right (in the manner
keep hold and inspect the applicant as a Suspect), the applicant,
imploring the Assembly of the Constitutional Judges to publish the Sela Verdict which
ordered the Indonesian National Police to cease and
or delay the investigation of alleged allegations of action. criminal involving
The applicant as a Suspect;
2. That the Court had already decided the verdict of this provision in
case Number 133 /PUU-VII/2009. According to the applicant, it is necessary
done to prevent the occurrence of a violation of the 1945 Constitution which
27
has been ongoing continuously by the Republic Police
Indonesia. With regard to the sound of Article 63 of the Court of Justice
The Constitution states, " The Constitutional Court may issue
the designation that ordered the applicant and/or pleas for
stopping while implementation of the authorization is disputed
until there is a ruling The Constitutional Court "; then it is very appropriate
if the Court ordered it to cease temporarily
a police force action to investigate, menahanan being carried out by
the Indonesian Republican Police, because of the case that ' s being tested
by the Constitutional Court;
3. That is factually in the case of the Applicant Dispute
The authority of the State Agency (SKLN) between the Protection Agency
The witness and the Victims with the Indonesian National Police, sehinga is
should be the case
The Constitutional Court ordered a temporary haltan exercise of legal action (in this case the detention and
inquiry) associated with the case being tested;
4. That is correct. This request is a request for the Test Invite-
Invite against the Constitution of 1945, but cannot be levied that in
substantial and factually this request contains a dispute
the authority of the state agency, Protection of the Protection Agency
Witness and Victims and Police of the Republic of Indonesia;
5. Factually there are differences in interpretation between the Agency
Witness Protection and Victims (LPSK) with the Police Investigator
The Republic of Indonesia, against the meaning contained in the sense
" the witness who also suspects " as affirmed in Article 10 of the paragraph
(2) Act No. 13 of 2006, on the Protection of Witness and Victims.
Even this authority dispute has been officially delivered by
The Witness Protection Agency and the Victims (LPSK) to the President
Republic of Indonesia to get settlement;
6. That the provision application is urged to be granted, as an attempt
terminates the contradicting version and debate of authority between Polri's investigators
and the Witness Protection and Victims Protection Agency (LPSK)
involving the President Republic of Indonesia. In addition, the termination of the inquiry
and or the detention of this applicant is important to show and
28
proves that the Witness Protection and Victim Protection Agency (LPSK)
is a credible institution and has an authority in
providing protection against witnesses who have provided
the captions and the or the recognition of corruption in the state agencies
specific;
7. That the request of this provision is important to be submitted by the applicant, in order
The applicant gets a guarantee of legal certainty over the process that
is being led by the applicant, as the Indonesian Republic Police continues
performing the actions the law by keeping guidelines on
the norm is being tested, then the applicant's constitutional right is continuously
with all the arguments above, please respectfully request the Assembly of Judges
The Constitution deigned to grant a request for this provision.
VI. Petitum
That of the entire dalil-dalil described above and the evidence attached,
with this the applicant please to the Honorable Constitutional Court of Justice
in order to please give the verdict as the following:
- In Provision:
1. Accepts the request for the applicant's Provision;
2. Declaring postponing the enactment of Article 10 of the paragraph (2)
Act No. 13 of 2006 on Witness Protection and
Victim (LPSK) until there is a final court ruling against the subject
a plea a quo;
3. Ordering the Indonesian National Police to
stop the investigation of the case of PT. Salmah Arwana
Lestari with the number of Police Report No. Pol. LP/272/IV/2010/Barescream
April 21, 2010 on suspect Susno Duadji and the lawsuit
criminal corruption in the management of the use and
account budget grant from the West Java Pemprov of the Year
2008 with Pol's report number. S. Pgl ./485/VI/2010/Pidkor
&WCC on suspect Susno Duadji, at least until
Constitutional Court ruling in a quo
magnitude
law fixed;
29
4. Ordered to the State Police of the Republic of Indonesia to
release the applicant from the Prisoner and submit the applicant
to the Witness Protection Society and the Victims as witnesses who
are protected;
5. Orders to the South Jakarta State Prosecutor to
stop the prosecution process and or order the Court
South Jakarta State to stop the proceedings against
case of PT. Salmah Arwana Lestari with Police Report Number No.
Pol: LP/272/Iv/2010/Barescream on April 21, 2010 for suspect
Susno Duadji and criminal corruption charges in management
use and accountability budget grant from Pemprov.
West Java in 2008 with the Report Number No. Pol:
S. Pgl ./485/VI/2010/Pidkor & WCC on suspect Susno Duadji, seun-
not until the Constitutional Court ruling in case
- In the case of the case:
1. Accept and grant an Act Testing
Number 13 Year 2006 on Witness Protection and Victims
against the State Basic Law of the Republic of Indonesia Year
1945;
2. Declaring Article 10 (2) of Act No. 13 of 2006
on Witness Protection and Victims in conflict with the Invite-
Invite Basic State of the Republic of Indonesia in 1945;
3. Declaring Section 10 (2) of the Act No. 13 of 2006
on Witness Protection and Victim has no power
the law is binding with everything due to its law;
4. Or if the Constitutional Court of Justice argues otherwise and
consider Article 10 of the paragraph (2) of the Law No. 13 of 2006
on Witness Protection and the Victims, it remains the power
binding laws and apply, please. The Assembly of the Judges of the Constitution
may provide a constitutional interpretation against Article 10 of the paragraph (2)
Act No. 13 of 2006 on Witness Protection and
The victim, in which the interpretation is, in the sense that an
witness who is also a suspect in the same case cannot
30
exempt from such criminal charges, it must be interpreted that
the position as a suspect is set before the witness
it provides a testimony in the case;
5. Ordering the loading of this ruling in the Republic News of the Republic
Indonesia as it should be.
Or if the Constitutional Assembly of the Constitution argues otherwise, please the ruling
as well (ex aequo et bono);
[2.2] A draw that in order to strengthen the control, the applicant has
submitted a letter/writing tool that was given a Proof of P-1 to
The evidence of P-14, as follows:
1. Proof of P-1: Photocopy Act No. 13 of 2006 on
Witness Protection and Victims;
2. Evidence P-2: Photocopy of the State Basic Law of the Republic of Indonesia
Year 1945;
3. Proof P-3: Photocopy of the Population Card and the Polri Member Sign Card
The applicant;
4. Evidence P-4: Photocopied Kliping Media Massa on 18 March 2010
and April 12, 2010;
5. Evidence P-5: Photocopied Commission III DPR Number
SP.01/2407/DPRRI/IV/2010 dated 7 April 2010 and Kliping
Mass Media Print and Electronics;
6. Proof P-6: Photocopy of the Witness Protection Request submitted
The applicant to LPSK dated 4 May 2010;
7. Evidence P-7: Photocopy of the Protection Agreement Between the Protection Agency
Witnesses and Victims with Drs. Susno Duadji, S.H., M.H., Msc,
Number of PERJ-007/I. 3/LPSK/05/ 2010 dated May 26, 2010;
Photocopy of the Witness Protection Agency and Victim Number
S-308/I. 3/LPSK/05/ 2010 on May 26, 2010 subject
Notice Received Witness Protection a.n Drs Susno
Duadji, S.H., M.H., Msc;
Photocopy of the Statement of Statements from Drs Susno Duadji, S.H., M.H.,
Msc;
31
8. Evidence P-8: Photocopy Call Number S. Pgl/234/IV/2010/Pidkor&WCC
April 30, 2010;
Photocopy Call Number S. Pgl/283/V/2010/Pidkor&WCC
date 7 May 2010;
9. Evidence P-9: Photocopy Of The Arrest Warrant Number SP.Kap/16/V/2010
dated 10 May 2010 (without meterai);
Photocopy The Arrest Warrant Number SP.HAN/12/V/2010
dated 11 May 2010 (without meterai);
10. Evidence P-10: Photocopy of Mass Media Clippings both print and electronic
(without meterai);
11. Evidence P-11: Photocopy of the Suspect's Examination News June 10
2010;
Photocopies Call Number S. Pgl/485/VI/2010/Pidkor &
WCC on 11 June 2010 (without meterai);
12. Evidence P-12: Original Kliping Newspaper Kompas on 2 June 2010 entitled "Susno
and Witness Protection";
13. Evidence P-13: Original Kliping Newspaper Kompas on 9 June 2010 titled "LPSK
Surati President to Secure Susno";
14. Evidence P-14: Kliping Electronic Media Gatra.com dated June 10, 2010 titled
"KPK Dalami Role Agus Condro";
Kliping Media Electronics okozone.com dated 14 February 2010
titled "Anwar and Hamka's Status Unranked";
15. Proof P-15: Photocopy of the IPSK written letter number S-715/1/LPSK/
08/2010 on August 30, 2010;
In addition, the applicant also submitted two experts who had been heard
his limitations under oath in the trial date 19 August 2010,
as follows:
1. Prof. Dr. Saldi Isra, S.H., MPA;
1. Article 10 of the paragraph (2) of the 13/2006 Act of the Witness Protection and the Victims,
contains a formula that could potentially elicits an interpretation that could
harm the witness and the victim thus causing legal uncertainty
that at the end of the conflicting the Constitution of 1945.
2. Konsiderans Weighing the 13/2006 Act stated:
32
The witness and/or victim's hearing, viewing, or
experience the occurrence of a criminal offence in the search effort
and found clarity on the criminal offense;
ß law enforcement is often have difficulty presenting witnesses
and/or victims due to the threat, both physical and psychic
from certain parties;
ß Hence, necessary protection for witnesses and/or victims
that is crucial its existence in the criminal justice process.
3. The presence of Article 10 paragraph (2) of the 13/2006 Act states that one
witnesses who are also suspects in the same case may not be released
of the criminal charges if he turns out to be legally proven and assured
guilty, but his testimony may be judge judge in
easing the criminal to be dropped potentially damaging or
thwarting the initial intent of the formation of Law 13/2008.
4. By taking an example of Susno Duadji's case, usage
Article 10 of the paragraph (2) sends a clear message that the 13/2006 Act is not
being able to provide protection against witnesses.
In Section 5 of the letter a Act Number 10 Year 2004 on Formation
The laws of the Law are stated that the clarity of purpose
represents the basic principles of the establishment of laws.
Then in an explicitly stated Article 5 letter an explicitly stated:
Yang referred to the "clarity of purpose" is that any
The formation of the Law of Legislation must have a goal
which is clear to achieve.
Article 10 of the paragraph (2) of the 13/2006 Act is cyemically located in Chapter II of
Witness Protection and Victims. Should, all existing norms
are intended to provide protection against witnesses and victims.
However, the provisions of Article 10 of the paragraph (2) of the 13/2006 Act are not only in line
with the intent to exist in Chapter II due to the presence of That provision
does not provide protection against witnesses and victims.
light-benders, the presence of Article 10 verse (2) of the 13/2006 Act may be
threatening witnesses and victims.
In addition, the presence of Article 10 of the paragraph (2) of the 13/2006 Act may eliminate
the right of safe sense and protection from the threat of fear to
33
commit or not to do something still contains a weakness that
fundamental, because with the reason at the same time a person
can be designated as a witness and as a suspect, without any
Clear protection against the position as a witness.
5. Conscious or not, the provision is to enforce the rights that should be
obtained by the Witnesses and the Victims as set forth in Article 5
paragraph (1) of the Act of 13/2006.
In addition, the phrase " ..... cannot be exempt from criminal charges if he
turns out to be legitimately and convincingly guilty .... potentially
raises a double interpretation (multi-interpretation) and is ambiguous. The formulation
is not in accordance with Article 5 of the letter f Act 10/2004 which
states that the laws of the principle
the clarity of the formula.
In the Explanation Of Article 5 the letter f is stated:
referred to as "rumour clarity" is that any
laws must meet the technical requirements
drafting laws, systematics and word options
or terminology, as well as the the legal language is clear and easy to understand,
so it does n' t incur An interpretation of the
implementation.
6. In a broader context, the provisions contained in Section 10
paragraph (2) of the 13/2006 Act may be said in conflict with Article 28D
paragraph (1) of the Constitution of 1945 stating:
"Everyone is entitled to a confession, a guarantee, protection, and
Fair legal certainty as well as the same treatment before the law".
7. In the context of the Mafia's Corruption Eradication agenda
The law, the provisions contained in Article 10 of the paragraph (2) Act 13/2006 not
only damages legal certainty but also potentially damaging the purpose
other laws that does not lose its fundamentals, which is the principle of expediency.
In a simple way, the provision may lead to new fears
for someone who is expected to be willing to provide a related description
with a certain criminal offense.
34
8. Another reason that can confirm that Article 10 of the paragraph (2) of 13/2006
does not benefit in the agenda of eradication of corruption and
the eradication of the legal mafia, i.e.:
ß Gives message to the public that the 13/2006 Act is not
provides reassurance for witnesses and victims;
ß It is increasingly difficult to get key witnesses in the settlement
case of corruption and the legal mafia (especially the category scandal);
ß It is difficult to dismantle the corruption and mafia practices in the apparatus environment
law enforcement; and
ß Witnesses who provided the caption can Just be a suspect.
9. In an expert view, the reasons for this benefit also make much
the country in the world provides protection to witnesses and victims.
For example countries such as the United States, South Africa, Canada, NSW
Australia, and UK are not provide suspect status for witnesses
as set out in Section 10 of the paragraph (2) Act 13/2006. Regardless,
with the provision of adverse witnesses and victims of will
lowering the desire to open and dismantle the crime-
major crimes including corruption. For reasons of legal certainty and
benefit above, the provisions of Article 10 of the paragraph (2) of the Act of 13/2006 which
states, a witness who is also a suspect in the same case
cannot be released from criminal charges. if he turns out to be proven
legitimately and convinces the guilty, but his testimony can be made
The judge ' s consideration in the criminal extenuation to be dropped
is at odds with the 1945 Constitution and must be declared not to have
binding power.
2. Dr. Eddy O.S Hiariej
1. That Section 10 paragraph (2) of the Law Number 13 of 2006 on
Witness Protection and the Victims, explicitly stated, "A
witness who is also a suspect in the same case cannot be released
of criminal charges if he turns out to be legally and convincingly proven
guilty, but his testimony can be considered a judge in
easing the criminal to be dropped".
35
2. That Article 10 paragraph (2) of the Law Number 13 of 2006 on
Witness Protection and the Victims is in Chapter II of the Act
a quo on the Protection and Rights of the Witnesses and Victims.
3. That due to the absence of clear and unequivocal formula to
witness and suspect positions as well as in the condition of how a person
witnesses to be a suspect when at the same time as well
as a witness The snitch has generated multi commentaries and potentially
elicits an unconstitutional interpretation and incline uncertainty
the law as well as contrary to constitutional rights as
set up in the 1945 Constitution.
4. That the next question is whether Section 10 of the paragraph (2) Invite-
Invite Number 13 Year 2006 on Witness Protection and Victims
contrary to Article 28D of the paragraph (1) and Article 28G paragraph (1) of the Constitution
1945?
Based on the question, the expert will outline in the way
interpretation, i.e.:
Historical interpretation
1. The interpretation of the meaning of the act according to the way of researching
history of such laws. Historical interpretation also
covers the legal history of the meaning of a formulation of an
rule of law by seeking a link to the authors or
the general in the context of the society in the past.
2. According to its history, the Whistle Blower itself is very closely related
with the mafia-style crime organization as the oldest crime organization
and the largest in Italy that comes from Palermo, Sicilia so often
called Sicilian Mafia or Cosa Nostra.
3. Organized crime perpetrated by mafioso moves in
the field of heroin trafficking and flouring in different parts of the world
so we know similar organizations in various countries such as
Mafiya in Russia, Cartel in Colombia, the Triads in China and the Yakuza in Japan.
So strong the network of crime organizations so people-
their people can master the various sectors of power, whether that
executive, legislative, And the judiciary, including the law enforcement apparatus.
36
4. It is not uncommon for a syndicate to be exposed because one of them has betrayed them. That is, one of them serves
as a whistleblower or a whistle blower to unravel the crime
that they did. In return, this whistle blower
is released from criminal charges. Thus the provisions of Article 10
paragraph (2) of the Act a quo contradictest the spirit of the whistle
blower itself.
Interpretation Doctrinal
1. Reinforcing the argument by referring to a specific doctrine that
in this case is the doctrine of the whistle-blower (Whisper).
2. There are three related whistle-blowers that need to get attention.
First, it must be as soon as possible the whistle blower is given protection. This
is meant to have he not been killed by his accomplices. Second, information from
whistle blower could be made sufficient initial proof for
uncovering the crime syndicate. Third, if the whistle blower
provides information so that it can dismantle the crime syndicate
up to its roots, it is used as an eraser reason
criminal charges.
3. The provisions of Article 10 of the paragraph (2) of the Act a quo do not meet the principle
protection against a whistle blower because it is concerned
remains to be sentenced to death when involved in such crimes.
Meaning, on one side of the section it provides protection, but on the other side
whistle blower does not get bail to be exempt from prosecution
criminal of the given testimony. Thus, Article 10 (2)
Act No. 13 of 2006 does not provide any legal certainty
to whistle blower.
Interpretation Gramatikal
1. The meaning of the provisions of the Act is interpreted by means of addressing it
according to the everyday common language
2. The provisions of Article 10 of the paragraph (2) Act No. 13 of 2006
are ambiguous, do not meet the lex certa principle in penal law and
tend to be contra legem with the provisions of Article 10 of the paragraph (1).
3. If it is grammatically elaborated, it is a tricative three. First,
a witness who is also a suspect in the same case will
37
eliminates the right excusatie the defendant, whereas the right excusatie is accused
is one of the elements of judicial objectivity. On the one hand, when the person
as a witness in the court, the attachment is valid as a proof tool
if spoken under oath, but on the other side when
is concerned with the status as the defendant. given not
under oath.
Second, the phrase "..... cannot be exempt from criminal charges if he
turns out to be legally and convincingly guilty ...." is ambiguous
and raises question, who will be judged first,
whether the whistle blower Or the perpetrator reported by whistle
blower or will be arrased at the same time. Third, the provisions
Article 10 paragraph (2) is contra legem with the provisions of Article 10 paragraph (1)
which in its nature states that witnesses, victims and labeling is not
can be legally prosecuted either criminal and data on the report
the testimony that will, is or has been given it.
The systematic/logical interpretation
1. Interpret the laws by connecting it
with all the articles in such laws, legal regulations or
other laws or with the entire legal system.
2. In the method of legal discovery, specifically penal law, at least
there are seven principles. One of these principles is the principle titulus
est lex and rubrica est lex. The first principle is called the title
the defining legislation whereas the second principle
means the rubrik or the negotiations section is decisive.
3. In casu a quo, Article 10 of the paragraph (2) in rubrica est lex is in Chapter II
on the Protection and Witness Rights and Victims, while the substance
The section does not guarantee protection against a whistle blower of
lawsuits especially criminal law.
4. Similarly, titulus est lex, the title of the law is
the witness and victim's outerings. So whatever the status of the witness must
remain in protective custody.
5. The provisions of Article 10 of the paragraph (2) of the Act a quo regardless of context
the protection itself. Thus the provisions do not
guarantee legal certainty and protection against human rights.
38
Comparative Interpretation
1. Interpretation by comparing such provisions in other countries
among others:
- America Srerikat is set in Whistle Blower Act 1989. Whistle Blower
protected from dismissal, demoting rank, dismissal
while, threat, interference and acts of discrimination.
- South Africa is set in Article 3 Protected DsClause Act Number 26
Year 2000. Whistle Blower is given protection from occupational
detriment or loss in relation to the post or
work.
- Canada is set in Section 425.1 Criminal Code Of Canada. Whistle
Blower is protected from a job-giver who gives the penalty
discipline, demoting the rank, firing or performing
any harm in terms of work with the goal to
prevent workers from providing information to the government or
the legal execution agency or to reply to workers who
provide information.
- Australia is set in Section 20 and Section 21 Protected DsClause Act
1994. Whistle Blower, identity secret, no
criminally or civil liability, protection of
defamation demands, protection of the acts of retaliation
and conditional protection if the name is released to the media.
- England is set in Article 1 and Section 2 Public Interest Disclosure Act
1998. Whistle Blower must not be fired and protected from victimisation
as well as adverse treatment.
The comparative interpretation usually sees legislation in various countries
arising from an international agreement. In such a context, Indonesia
has ratified United Nations Convention Against Corruption (UNCAC)
with Act Number 7 of 2006. provisions of Article 10 paragraph (2)
UdAct Number 13 Year 2006 In substance contradictory to
Article 32 of the paragraph (1) of the UNCAC, which is exuperally stated, " Each country
authorities are taking appropriate actions in accordance with the system
its national law and in its authority to provide
effective protection of possible retaliation or intimidation for
39
witnesses and experts who have testified about the crimes
specified in this Convention and as it is for the families
they and others close to they".
Conclusion
Based on the overall description above, the provisions of Article 10 of the paragraph (2) Invite-
Invite Number 13 of 2006 contradictory to the principle of recognition, guarantee,
the protection and certainty of the law fair, private self-protection, family,
honor, dignity, and protection from the threat of fear to do
or not to do something that is a fundamental right
by Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution.
[2.3] A draw that against the applicant's request, the Government
provides the caption in the August 19, 2010 trial, which
outlines as follows:
I. SUBJECT-SUBJECT
1. That which is the reason for the applicant to apply
testing Section 10 of the paragraph (2) Act No. 13 of 2006
on Witness Protection and the Victims to the 1945 Constitution, which in
the principle is as follows:
a. That the provisions of Article 10 paragraph (2) of Act No. 13 of the Year
2006 have opened up the opportunity for Investigators to intervene
against the authority of the LPSK without control of the power branch
judiciary, due to the designation of a witness to be a suspect and
then a detainment can be done unilaterally by
Investigators without considering any agency authority
another country.
b. The absence of a clear and unequivocal formula to the position
"witness" and "suspect" as well as in the condition of how a person
may be a "suspect" when at the same time as well
status as a "witness witness" so that it can create a multi
interpretation and potentially eliciting unconstitutional interpretation, and by
hence the provisions of Article 10 paragraph (2) Act Number
13 Year 2006 contradictory to constitutional rights
as set out in the 1945 Constitution.
40
c. That the aftermath of multi commentaries on the provisions of Article 10 paragraph (2)
Act Number 13 of 2006, then there has been
the difference of interpretation between the Witness Protection Society and the Victims
(LPSK) with the Polri Investigator against The meaning contained in
understanding "witness who is also suspect" and due to difference
the interpretation then the applicant has harmed the rights
constitutionality, as the applicant was originally examined as
witness then designated as the Suspect as well as done the action
arrest and The detention, consequently, protection to
The applicant in capacity as a witness cannot be done with the LPSK.
d. In short according to the applicant, if the a quo provision is used with
is interpreted incorrectly then the prequalified potential has violated
the principle of respect and recognition of human rights,
in particular the witness rights And victims. In addition, the a quo also
potentially inhibits the equality of the presence before the law and
the government as well as may incur legal uncertainty, because
it is according to the applicant a quo considered conflicting with
Article 27 paragraph (1), Article 28D paragraph (1), Article 28G of paragraph (1), and Article 28J
paragraph (2) of the 1945 Constitution.
2. Furthermore, the applicant in his request pleaded for
The Constitutional Court gave the verdict:
In Provision:
1) Ordered to the State Police of the Republic of Indonesia to
stop the investigation of the case The PT. Salmah Arwana
Lestari with the Police Report number Pol. LP/272/IV/2010/
Barescream on 21 April 2010 on behalf of Susno Duadji and
criminal acts of corruption in the management of use and
liability budget grant from the West Java Pemprov of the Year
2008 with Number of Report Pol. S. PgI ./485NI/2010/Pidkor &
WCC on suspect Susno Duadji.
2) Ordered to the State Police of the Republic of Indonesia to
release the applicant from custody and submit the applicant
to the Witness Protection Society and the victim as a witness
is protected.
41
In the Subject matter:
1) Received and granted the Act Testing
Number 13 of 2006 on Witness Protection and Victims
against the State Basic Law of the Republic of Indonesia Year
1945;
2) Declared Article 10 (2) Act Number 13 of 2006
on the Protection of witnesses and Victims in conflict with the Invite-
Invite the State of the Republic of Indonesia in 1945;
3) Declaring Article 10 paragraph (2) Law Number 13 Year 2006
on the Protection of Witnesses and Victims have the power
the law is binding with everything due to its law;
4) Or if the Constitution of the Constitution argues otherwise please allow
the assembly of the Constitutional judges may provide constitutional interpretation
against Article 10 verse (2) Act Number 13 of the Year 2006
on the Protection of witnesses and Victims.
II. LEGAL STANDING (LEGAL STANDING) PEMOHON
Related to legal standing (legal standing) the applicant, Government
through His Majesty the Chairman/Assembly of Constitutional Court implores it
The applicant can prove First whether it is true that the applicant is
the party who considers the rights and/or its constitutional authority is harmed
upon the enactment of the provisions to be tested, as well as whether
there is a constitutional loss The intended applicant is specific
(special) and actual or at least as potential as by reasoning
reasonable is certain to occur, and whether there is a causal link
result (causal verband) between the losses experienced by the applicant with
expiring The laws are being moved to the test.
Further, for someone or a party may be accepted as
The applicant who has a legal position (legal standing) in
the Test Request against the Basic Law
The State of the Republic of Indonesia Year 1945, then first must
explain and prove:
a. Qualify for the a quo as mentioned in
Article 51 of the paragraph 51 of the 2003 Act of 2003 on
Constitutional Court;
42
b. The rights and/or its constitutional authority in qualifying are referred to
which are deemed to have been harmed by the enactment of the tested legislation;
c. The rights and/or constitutional authority of the applicant as
due to the applicable law is required for testing.
If you pay attention to those things above, then the applicant in
this request has a qualification or Act as a private person
Indonesia state, which considers the rights and/or authority
its constitutionality has been harmed over the enactment of a quo or
assuming such loss as a result of the expiring laws that
are directed at such testing.
Then the question is the presumption of the constitutional loss
The applicant is caused by the expiring and/or effect
expiring provisions of Article 10 paragraph (2) Act Number 13 of the Year
2006 on Witness Protection and Victims, or as a result of the designation
The applicant as a Suspect, then conducted detention by Investigator
The Indonesian Republican Police on the case of a corruption criminal that
discharges to the applicant (vide of the Report number No. PoI police.
LP/272/IV/2010/Barescream and No. Pol. S. Pgl/485NI/2010/Pidkor & WCC).
Therefore, the Government through His Majesty the Chairman/Assembly of the Court
The Constitution pleads that the applicant may prove beforehand
whether the applicant is the one who considers the rights and privileges
the authority Its constitutionality is harmed over the enactment of the provision that
is intended to be tested, primarily in contesting
The presumption of the constitutional loss is referred to, because according to
The government of what is experienced by the The applicant, who in this case acted
as the reporter (witness) who reported it the alleged occurrence
criminal crime (corruption) in one of the intrusions (Police), constitute
a form of community participation to participate in eradicing the legal mafia
which occurred in Indonesia or as embodiment Community participation
in law and government.
So according to the Government, it is appropriate and it should be appropriate if any
persons (including the applicant) do not agree to be a suspect, then
carried out a detention by Investigator (Police) on suspicion of having done
felon (corruption) for attempted pre-legal resistance/legal efforts
43
The judiciary to the State Court, as the applicant has done,
that is until the request of this test, the applicant has
conducted a pre-trial legal attempt at 2 (two) times to the Court
South Jakarta Country.
Based on the description above, according to the Government of the question
regarding the applicant is not related to the matter of the constitutionality
The treatment of the subject matter is the norm to which it is intended to be used. tested that,
because it is appropriate if the Chairman/Assembly of the Court of Justice The Constitution
wise to state the request of the applicant is not acceptable (niet
ontvankelijk verklaard).
Nevertheless, the Government is giving up entirely to His Majesty
The Council of the Constitutional Court is to consider and assess whether
The applicant has a legal standing (legal standing) or not, as
defined by Article 51 of the paragraph (1) of the Law No. 24 of 2003
on the Constitutional Court and on the basis of the verdict
The preceding Constitutional Court (vide Putermination Number 0061PUU-111/2005 and
Putermination Number 11 /PUU-V/2007).
III. CONSTITUTION OF THE CONSTITUTIONAL COURT
1. In his petition, the applicant requested that the Constitutional Court
provide a ruling in the Provision which among others ordered
to the State Police of the Republic of Indonesia to stop the process
the investigation of the case of PT. Salmah Arwana Lestari with numbers
Police Report No. Pol LP/272/IV/2010/Barescream April 21, 2010
on suspect Susno Duadji and criminal corruption charges in
management of the use and liability of the budget grant from
West Java prop in 2008 with the Report number No. Pol.
S. PgI ./485NI/2010/Pidkor & WCC over suspect Susno Duadji.
2. In connection with the applicant's request, the Government
argues that the authority for the termination of the investigation
the criminal case is not the authority of the Constitutional Court,
due to the authority of the Constitutional Court already set expressly
in Article 10 of the paragraph (1) letter a up to the letter d
Number 24 of 2003 on the Constitutional Court reads:
44
" The Constitutional Court is authorized to prosecute at first level and
the final verdict is final for:
-Testing the legislation against the Basic Law of 1945.
-Defying the jurisdiction of the authority of the state agencies its authority
provided by the Basic Law of 1945.
-Determination of the dissolution of the political party, and
-Determination disputes about the outcome of the general election ";
Whereas the reasons for the termination of the investigation of the criminal matter only
can be carried out by the Investigator for a reason: no There is enough evidence,
The event was not a criminal or investigation
terminated by law, as set out in Article 109 of the paragraph (2)
Act No. 8 of the Year of the Criminal Event.
Based on the reasons as described above, then the Government
pleads for the The Chief Justice of the Constitutional Court of Justice
rejects the applicant's plea or at least
declares it unacceptable (niet ontvankelijk verklaard).
IV. GOVERNMENT EXPLANATION
Before the Government provides an explanation for the provisions of the provisions
Article 10 paragraph (2) Act No. 13 of 2006 on
Witness Protection and Victims, following the original intent of intent Invite-
Invite a quo, as follows:
a. That the results of the research conducted sebetum composed the Script
Academic and Draft Act on Witness Protection
and Victims, succinctly as follows:
1. The various provisions contained in the Code of Law
Criminal Events (KUHAP) provide more legal protection
to the suspect/defendant than to the victims/victims;
2. Witness has an obligation to provide testimony that if not
is done then may incline criminal sanctions, as
is formulated in Section 227 and Section 534 of the Criminal Code, but not
there is a specific witness rights Formulated;
3. In the practice, there are many witnesses who are charged with criminal charges
by the perpetrators of the criminal charges against the charges.
45
defamation, as the witness convees information that
is true to law enforcement;
4. The role of the victim in the judicial process is more viewed as a means to
proving the defendant's error, but appreciation and
protection against the victim is not in tea, nor is the recovery for
the victim is completely unregulated, except as provided in
Section 98 of the KUHAP that opens the prosecution's locker room for damages that
is merged into the process of vetting such a criminal act.
b. That the provisions set out in Act Number 13 of the Year
2006 on Witness Protection and Victims, aim to provide
protection to victims and witnesses who have not obtained
attention and Adequate protection from the state. Witnesses
as set out in the a quo legislation are categorized in
several groups, i.e.: real witnesses not involved in
a criminal offence; witnesses involved as a victim of a criminal offence, and
witnesses involved in a criminal offence in the context of the inclusion
(deelneming). Then witnesses must also be distinguished from the form of the act
the criminal in which the witness provides the caption, so
the granting of protection, for example, security protection only
is given to the witness in a criminal case which very serious, and
not against all who are witnesses in a criminal case.
Likewise for victims of felon, where the right to prosecute,
for example restitution is only given to victims of the felon.
Heavy human rights violations.
c. That the existence of the whistle blower (kentongan batsmen) was realized to have
a role that was panting by the formulation of the Draft Act on
Witness Protection and the Victims, but more detailed settings
that relating to witnesses as whistle blower it has
the different elements are quite significant compared to witnesses
in other categories. As it is known that the whistle blower act that
is found in various countries in North America, Europe and Australia at
was initially more intended for the mall-administration action reported
by insider to his superiors or to the authorities.
Protection needs to be given because in general the person
46
reporting is the person who wants to enforce the truth in
the institution in which the concerned works, other discontents reported
are likely to be his superiors. The complexity of the wistle blower position
(battering batsmen) caused the perumus to be invited-
invite a quo decided not to enter the provisions of
wistle blower in Act Number 13 of the Year 2006 on
Witness Protection and Victims.
Against the provisions of the provisions of Article 10 of the paragraph (2)
Act Number 13 of the Year 2006 on Witness Protection and
Victims, Government may explain as following:
1. Law Number 13 of the Year 2006 on Witness Protection and
Victims were made to provide protection to witnesses
and/or victims in criminal cases. In Article 4 of the Act
Number 13 of the year 2006 is mentioned that witness protection and victims
aims to provide a sense of security to witnesses and/or victims in
giving the description on any criminal justice process.
The protection is intended to provide a sense of security to
witnesses and/or victims so as not to be afraid of the presence of
the threat both physical and psychic from a particular party.
2. In the General Terms of the Law Number 13 of 2006 concerning
Witness Protection and Victims are described as
"Witness" is a person who can provide information to
the interests of the investigation, the inquiry, prosecution and examination in
a court hearing about a criminal case he hears himself, he
lives alone and/or he is alone (Article 1 of the I), whereas the
referred to "Victim" is someone who experiencing suffering
physical, mental and/or economic losses resulting from by a felony
criminal (Article 1 of figure 2).
3. In the General Description of Act No. 13 of 2006
it is stated, " In order to foster community participation to
unravel a criminal offense, it needs to be created a climate that is conducive to
how to provide legal protection. and security to any person
who knew or found something that could help
47
uncovers the criminal acts that have occurred and reported the ha!
to the law enforcement ";
4. Further Section 10 of the paragraph (1) of the Law No. 13 Year 2006
mentions, " The witness, the victim, and the por may not be prosecuted
the criminal balk law nor the perdata of the report, the testimony that will,
be, or have Given it ", and by explanation of Article 10
paragraph (1) Act No. 13 of 2006 that it meant
with" Report " is the person providing information to
law enforcement regarding the occurrence of a criminal offence. The provisions that
are set up in Section 10 of the paragraph (1) of the Number 13 of the Year of 2006
constitute the assertion that witnesses, victims and non-existing cunes
are charged with criminal or civil balk laws against the testimony or
The report provided, is the witness, victim and/or por who
provides the testimony or report to "Law Enforcement", not
to others or other agencies that do not include enforcers
the law.
Then it needs to be understood that the provisions of Article 10 of the paragraph (1) Invite-
Invite Number 13 of the Year of 2006 only apply specifically to
witnesses and unstatusable labeling as suspects in the case
that is. As for the witness who is also a suspect in
the same case, arranged in the provisions of Article 10 of the paragraph (2) Invite-
Invite Number 13 Year 2006.
It is thus clear that the applicant does not include as a witness/
a protected reporter under the provisions of Article 10 of the paragraph (1) Invite-
Invite Number 13 of the Year 2006 on Witness Protection and Victims.
5. According to the provisions of Article 10 paragraph (2) of Act No. 13 of the Year
2006 that a witness who is also a suspect in the same case
cannot be released from criminal charges if he is shown to be valid
and convincing guilty, but his testimony can be made
a judge's consideration in the criminal extenuation that will be dropped.
The provisions of Article 10 of the paragraph (2) have meaning or are
affirmation that the witness is protected merely a witness at all
not involved as a perpetrator in such a criminal offence . The provisions of Article
10 verses (2) Act No. 13 of 2006 have meaning and
48
is an affirmation that witnesses protected by the Institution
Witness Protection and Victims (LPSK) are only witnesses who are not involved
as the perpetrator in the criminal offence.
6. Thus, the provisions of Article 10 of the paragraph (2) of the Act
No. 13 of 2006 have been very easy to understand, so that it is no longer
enlist the interpretation. And therefore the statement or
the opinion of the applicant in his plea that there has been a difference
the interpretation between the Investigator of the Indonesian Police and the LPSK against the provisions
Article 10 of the paragraph (2) Act Number 13 of the Year 2006 was
an opinion that does not contain the truth.
7. Then if the formulation of Article 10 (2) of Act Number 13
2006 is correctly understood
that the provisions set out in Article 10 of the paragraph (2) of the Act
No. 13 of 2006 have been implement the basic principles of the rights of each
citizen of Indonesia in the presence of the law as set in
Article 27 paragraph (1), Section 28D paragraph (1), Section 28G paragraph (1), and Section 28J
paragraph (2) of the 1945 Constitution which states:
Article 27 paragraph (1) of the Constitution of 1945:
"All citizens together are in the law and
governance and shall uphold the law and governance with
no exceptions";
Article 28D paragraph (1) Constitution of 1945:
"Everyone is entitled to recognition, assurance, protection, and
fair legal certainty as well as the same treatment before the law";
Article 28G paragraph (1) of the Constitution of 1945:
"Everyone is entitled to personal protection, family, honor,
dignity, and property in which the below his power, as well as entitled to
the sense of safety and protection of the threat fear of doing or
not doing something that is a birthright";
Article 28J paragraph (2) of the 1945 Constitution:
"In exercising his rights and freedom, any person is mandatory
to the restrictions that set with legislation with
intent solely to guarantee recognition as well as respect
upon the rights and liberties of others and to meet fair demands
49
in accordance with moral considerations, religious values, security, and
General order in a democratic society";
8. Furthermore, the Constitution of 1945 explained firmly that the State
Indonesia is a legal state (rechtstaat) and is not based on
sheer power (machtstaat). This means that the Republic of the Republic
Indonesia is a legal state that upholds the fundamental rights
man, guaranking all citizens at the same time in
in law and government as well as the mandatory upholding. law
with no exception. The law acts as an organizer in
a nation's life and international life. The law sets out what may
be done and what it is forbidden to do. As a legal country
the legal certainty must be enforced.
9. Therefore, the restriction of freedom of movement that
experienced the current applicant as a result of his containment of
the applicant is an implementation of the principle of equality in
before the law. (equality before the law), which is a principle that
values human equality before the law. In the presence of the law
all humans are equal, in the sense that anyone committing a criminal offence
then against the perpetrator of such a criminal must be treated the same in
the face of the law (equality before the law).
Thus it is clear that the provisions of Article 10 of the paragraph (2) Invite-
Invite Number 13 of 2006 on Witness Protection and Victims
do not conflict with the Constitution of the Republic of the Republic
Indonesia Year 1945.
V. Conclusion
Based on the explanation as noted above, it can
deduced as follows:
1. The applicant does not have a legal standing (legal standing) for
applying for a quo.
2. The termination of the investigation of the criminal offence on behalf of the applicant is not
in the Constitutional Court's authority.
3. Not true there is a difference of interpretation between the Protection Institute
The Witness and the Victims with the Police Investigator against the provisions of Article 10 of the paragraph
50
(2) Law Number 13 of the Year 2006 on Witness Protection
and Victims.
4. That the provisions of Article 10 paragraph (2) of Act No. 13 of 2006
on the Protection of Witness and Victims are not contradictory to
The Constitution of the Republic of Indonesia (Indonesian) of the Republic of Indonesia in 1945.
Next Government pleads to the Speaker/Assembly of Justice
The Constitution to be able to provide the ruling as follows:
In Provision:
1. Reject the applicant ' s Provision request for the whole;
2. Stating that the Constitutional Court is not authorized to
order the termination of the investigation of the ongoing criminal case
faced by the applicant.
In the Subject matter:
1. Stating that the applicant does not have a legal standing (legal
standing);
2. Rejecting The Applicant's request for the whole or at least not
states that the applicant testing invocation is not acceptable (niet
ontvankelijk verklaard);
3. Accept the Government Description as a whole;
4. Stating the provisions of Article 10 paragraph (2) of the Law No. 13 Year
2006 on Witness Protection and the Victims is not in conflict with
provisions of Article 27 paragraph (1), Section 28D paragraph (1), Section 28G paragraph (1), and
Section 28J paragraph (2) The Basic Law of the State of the Republic of Indonesia
In 1945;
But if Your Majesty the Chief Justice of the Supreme Court of the Constitutional Court
argues for another, please a wise and adiuary verdict (ex aequo et
bono).
[2.4] weighed that against the applicant, the House of Representatives
The people provided the caption in the August 19, 2010 trial,
which outlined the following:
51
A. PROVISIONS OF ARTICLE CODE NUMBER 13 OF 2006
ABOUT THE WITNESS PROTECTION AND THE VICTIMS ARE BEING HONED
TESTING AGAINST UUD STATE REPUBLIC OF INDONESIA YEARS
1945.
The applicant in the a quo application submitted a plea
testing of Section 10 of the paragraph (2) Act No. 13 of 2006
on Witness Protection and the Victims, which reads:
"A Witness who is also suspect in the same case cannot
acquitted of criminal charges if is tern yata proved legally and
assured guilt, but his testimony may be considered
judge in easing the criminal to be dropped ";
The provisions of Article 10 of the paragraph (2) The a quo Act, according to the applicant
potentially harms its constitutional rights and is considered to be contradictory
with Article 28D of the paragraph (1) and Article 28G of the paragraph (1) of the 1945 Constitution.
B. RIGHTS AND/OR CONSTITUTIONAL AUTHORITY DEEMED
APPLICANTS ARE HARMED BY THE LAW
NUMBER 13 OF 2006 ON WITNESS PROTECTION AND
THE VICTIM.
The applicant in the a quo plea, posits that the right
constitutionality has been harmed and violated by the enactment of Article 10
paragraph (2) Act Number 13 of 2006 on Witness Protection
and Victim (subsequently abbreviated Law Number 13 of 2006) against UUD
1945, i.e., at the bottom of the list:
1. That in the a quo application was put forward that the restraining action
conducted by Barescream Polri against the applicant is based upon
the description of Kadiv Humas Mabes Polri in some media mass media both print
and the electronics at its core saying the arrest
against the applicant is also based on the provisions of Article 10 of the paragraph (2)
Act No. 13 of 2006. (vide Request number 9 things. 6).
2. That according to the applicant after undergoing detention was also imposed
the suspect status in the case of criminal corruption in the management
use and liability budget grant from the Java Pemprov
West of the Year 2008 by West Java polda and its broadcast, based on
52
The Police Report No. Pol. LP/261/IV/2010/BARESKRIM dated April 12, 2010
as listed in the BAP Applicant as Suspect date
10 June 2010. (vide PLEA FOR 10 THINGS. 6).
3. That the applicant in the a quo plea posits that
the applicant's previous position is the witness of the por and has
requesting legal protection as a reporter on the Agency
Witness Protection and the Victim but Have suddenly been made
A suspect and at once an act has been committed
incarceration, is a violation of the rights
his constitutionality and the applicant have been harmed by that interpretation
one of the provisions of Article 10 of the paragraph (2) Act No. 13 of 2006 by
party Police. (vide PLEAS NUMBER 11 THINGS. 7).
4. That the applicant assumes that as a result of the arrest,
the detention and investigation as the suspect, the applicant
suffered a constitutional loss namely: (vide Plea of number 12
thing. 7).
Pertama, The applicant has lost the right to participate in the
laws and governance, as guaranteed by Article 27 of the paragraph (1)
Constitution of 1945. The right to participate in this law and government
is missing as the applicant has been detained by the Investigator for reasons other than
as a Witness, the applicant has also been designated as the Suspect.
Second, The applicant has lost the right to recognition, guarantee,
protection, and fair legal certainty, as guaranteed by
Article 28D paragraph (1) of the 1945 Constitution.
Third, The applicant has lost the right to a sense of safety and protection
of the threat of fear to commit, as guaranteed by the Article
28G paragraph (1) of the 1945 Constitution
According to the applicant provisions Article 10 paragraph (2) Law Number 13 of the Year
2006 contrary to Section 28D paragraph (1) and Section 28G paragraph (1)
Constitution of 1945, stating:
Section 28D paragraph (1) of the Constitution of 1945:
" Everyone is entitled to the recognition, warranty, protection, and the
fair legal certainty as well as the same treatment in front of
the law ".
53
Article 28G paragraph (1) of the 1945 Constitution:
" Everyone is entitled to personal protection, family, respect,
dignity, and property under its authority, as well as the right
upper sense of safety. and protection from the threat of fear to door do not do something that is a birthright ".
C. Representative of the Republic of IndonesiaAgainst the applicant ' s control as described in
plea a quo, with this House in the delivery of its views
first elaborates on the legal position (legal standing)
can be described as follows:
1. Legal Position (Legal Standing) The applicant
Qualifying to be fulfilled by the applicant as a Party has
set forth in the provisions of Article 51 of the paragraph (1) Act No. 24 of 2003
on the Mahkarnah of the Constitution (next The Constitutional Law
Constitution), which states that " The applicant is a party
considers the rights and/or its constitutional authority be harmed by
the enactment of the law, that is:
a. Individual citizen of Indonesia;
b. the unity of indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the State of Unity
The Republic of Indonesia is set in undra;
c. public legal entity or Private; or
d. State institutions. "
The rights and/or constitutional authority referred to the provisions
Article 51 of the paragraph (1), expressed in its explanation, that
"referred to by" constitutional rights " is the rights
is set in the State Basic Law of the Republic of Indonesia
In 1945. " Conditions The explanation of Article 51 of the paragraph (1) is affirm,
that only the hakhak is explicitly set in the Constitution of 1945 alone
which includes "constitutional rights".
Therefore, according to the Constitutional Court Act, in order for the
a person or a party may be accepted as the applicant
54
has a legal standing (legal standing) in the Test request
The Act against the Constitution of 1945, then first must
explain and prove:
a. Qualify as the applicant in a a quo
as referred to in Article 51 of the paragraph (1) of the Act
Number 24 of 2003 on the Constitutional Court;
b. The rights and/or its constitutional authority as intended
in "The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by
The enactment of the Undang;
Regarding the parameters of constitutional losses, the Constitutional Court
has given the definition and limitations on constitutional losses
arising from the enactment of an Act must meet 5
(five) terms (vide Verdict Case Number 006/PUU-111/2005 and
Perkara The number 011 /PUU-V/2007) is as follows:
a. the rights and/or constitutional authority of the applicant
provided by UUD 1945;
b. that the permissions and/or constitutional authority of the applicant
are considered by the applicant to be harmed by an Act
which is tested;
c. that the loss and/or constitutional authority of the applicant
is referred to Specific (special) and actual or at least to be
potential that the reasonable reasoning can be guaranteed
occurs;
d. Due to (causal verband) between the loss and
the enactment of the test-moveed Act;
e. It is possible that with the application of the request then
the loss and/or. Controlled constitutional authority is not
will or no longer occurs.
If all five terms are not met by the applicant in
the Test case a quo, then the applicant does not have
Legal standing (legal standing) as the Applicant.
Respond to the applicant a quo, the House of view
that the applicant must be able to prove beforehand whether it is true
The applicant as a party that considers the right and/or authority
55
its constitutionality was harmed over the expiring provisions
to be tested, in particular in contesting the loss
against its rights and/or its constitutionality authority as impact
of The provision of the provisions is expected to be tested.
Against the legal standing (legal standing), the House
submitted fully to the Chairman/Assembly of the Court of Justice
The mulya Constitution to consider and assessing whether
The applicant has a legal position (legal standing ) or not
as provided by Article 51 of the paragraph (1) of the Act on
Constitutional Court and under the Constitutional Court's Decree
Perkara Number 006/PUU-111/2005 and Perkara Number 011 /PUU-V/2007.
2. Materiel testing of the Act No. 13 of 2006
about Witness Protection and Victims (subsequently called Act
Number 13 of 2006)
Against the Applicant's view as described in
Request a quo, the House of Representatives conveyted the following statement:
1. That to understand the "spirit" of the provisions or norms that
is contained in Article 10 of the a quo, need
pay attention to the formulation of the formulation of the section. The meaning that
is present in the provisions of Article 10 of the paragraph (2) of the Act a quo
is important to understand. The formulation of the formulation provision
Article 10 of the a quo related to the Witness Protection that
is then assigned to be a suspect is not understood subjectively,
but the approach must be from the angle Objective view of view to
deeds. Debate on the formulation of the provisions of Article 10 of the paragraph
(2) it can be studied/read in Treatise Meeting Discussion of the bill on
Witness Protection and Victims of the Working Committee Meeting, Wednesday 24 May
2006 may be delivered as berikut: " DIM Number 53 is Article
10: a witness who is included as this suspect is also a witness as well,
but the suspect is also equally inextriable from criminal charges
if he is proven lawful and reassured guilty, however
His testimony can be made judge consideration in easing
the criminal to be dropped. That removes the Pernerintab proposal at
top. About not being able to get charged with a criminal and a civil service. Agreed
56
yes? If this is what it takes, sir? Because he's a witness and can
also be the perpetrator, if you see the rest of the time. This is a witness, so a suspect
also, KPK when we take it from the prosecutor or the police force, end-
end so again. But whatever the story is, we agree on the basic idea
is self-reliance, only the implementation is under the police
until now it has the tools to protect the witnesses. That's me
kira. Thank you. " (vide Book I Process Processing Bill on
Witness Protection and Victims, General Secretariat of the House of Indonesia, Jakarta,
things. 515).
2. That the background of the provisions of Article 10 of the bill
about Witness Protection and Victims as described
that, the response of a Witness may also be status as
The suspect, so for reasons Even if
The status of a Witness is of course unable to be released from criminal charges
If the question is legally proven and assured
guilty. Despite the testimony of a Witness who becomes
The suspect may be considered a judge to lighten
the criminal to be dropped on him. On that basis, the House
argues that the provisions of Article 10 of the paragraph (2) Invite-
Invite a quo, in relation to the provisions of Article 10 of the paragraph (1) Invite-
Invite a quo contain clear and certain legal norms. to
provide legal protection to Witness, Victim and Report,
that is that in essence a Witness, Victim, and Report
is granted legal protection for not being legally prosecuted
both criminal and criminal data on reports, testimonies that will,
moderate, or have been provided. However, this provision must be defined
that the Witnesses, the Victims, and the Report are not caught in the
the events of the criminal acts and the data that it has reported. By
therefore the provisions of Article 10 of the paragraph (2) of the a quo of course
do not apply to the Witnesses, Victims, or Enquiry while not involved
with the criminal conduct being carried out the investigation or
The investigation.
3. That the applicant in the a quo request did not elaborate
the judicial reasons for the judicial argument of Article 10 of the paragraph (2)
57
The a quo Act with the provisions of Article 28D paragraph (1) and
Article 28G paragraph (1) of the 1945 Constitution. The applicant is also in fact not
able to decipher actual losses
the constitutionality of which the applicant is in effect as a result
the provisions of the provisions of Article 10 of the paragraph (2) of the a quo Act.
As a matter of fact, the applicant is now in a loss because
his status is designated as the suspect in command
The applicant, according to the House of this case there is absolutely no relevance
or not caused by this. the provisions/norms contained in the Article
10 paragraph (2) of the Act a quo. Therefore the House argued
that the provisions of Article 10 of the paragraph (2) of the Act a quo
the norms law is correct, obviously, and it must be that one
The witness who also has the status of the suspect in the same case no
can be released from criminal charges if he turns out to be proven
lawfully and convincingly guilty, but his testimony can
be considered a judge in easing the criminal that would
be dropped. That applies to any person who is a Witness and
also as a suspect means a Saski
who is not a legal suspect in law would certainly get
a different legal protection with a A witness who
has the status of a suspect.
4. That the House of Representatives view the provisions of Article 10 (2) Invite-
Invite a quo at all does not preclude and reduce the rights
the applicant ' s constitutional right to obtain recognition, guarantee,
protection, and certainty of the law fair and the treatment that
equal before the law, also the right to gain protection of the self
personal, family, honor, dignity, and harts of objects in
under his power, as well as the right to the sense of safety and protection
of the threat of fear to commit or not to do something
which is basic rights as guaranteed in Section 28D
paragraph (1) and Article 28G paragraph (1) of the Constitution of 1945. That the applicant balk
as a Witness and the Suspect continues to obtain protection
the law in accordance with the provisions in the KUHAP and the Criminal Code. By
because of that the provisions of Article 10 of the paragraph (2) of the a quo are already
58
pursuant to and in line with the provisions that provide protection
the human rights guaranteed Section 28D paragraph (1) and Section 28G paragraph
(1) The 1945 Constitution. Of course the provision above does not apply
against the applicant, although in question as a Witness
manakali is proven to be legally and convincingly alleged to be involved
in a criminal act. Thus the loss of rights
the constitutional postured of the Applicant is not in place
its relevance to the constitutional right of any given person
Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution.
5. That the petitioners who posited the provisions of Article 10 of the paragraph
(2) the a quo of contrary to the constrittional rights
The applicant guaranteed in the 1945 Constitution is unwarranted and
not under the law, because no constitutional basis
and yuridis in the applicable criminal justice system governing
that a Witness Pereporting (whistle blower) cannot be detained
or processed criminally despite the concerned involved
in criminal action even already on the suspect's status. If
The logic of the Witness is made a subjective basis for not processing
a person, whereas the Witnesses are legally and
convinces to be shown to be involved in the middle criminal act
That would bring down the system.
the idlers, because a person would most likely appear
as a Witness to a criminal event, which
pertined itself to be involved in that criminal event.
alone.
6. That there is a difference of interpretation between the Protection Agency
The Witness and the Victim (LPSK) with the Polri Investigator, against the meaning that
contained in the sense of the "Witness who is also the Suspect"
as affirmed in Article 10 of the paragraph (2) The
a quo of the applicant (vide Plea of the figure of 26 things. 16),
according to the House of Representatives such as it is not an issue
constitutionality, but is solely related to the difference
understanding or interpretation of a provision of laws that
allows Implications for the application of the law. It's necessary.
59
we submit that the norm contained in Article 10
paragraph (2) of the Act a quo is clear as described
in the Explanation of Section 10 of the paragraph (2) of the Act a quo, means
not There is another interpretation, in addition to an explicit interpretation of the letter
in the provisions of Article 10 of the paragraph (2) of the Act a quo.
7. That the detention of the petitioner committed by Polri
is based on the Polri authority granted by the Act
Number 2 of 2002 on the Indonesian State Police
and KUHAP. In Section 14 of the paragraph (1) of the Law No. 2 of the Year
2002 on the State Police of the Republic of Indonesia in charge
" conduct an investigation and investigation of all criminal acts
in accordance with the criminal event law and The rules of the invitation-
Other invitation " The explanation of Section 14 of the paragraph (1) letter g Invite-
Invite this to explain, " The provisions of the Criminal Event Law Act
provide a leading role to the State Police.
Indonesia in its investigation and investigation so it is generally
is authorized to conduct an inquiry and investigation
against all crimes ". That further Article 16 of the paragraph (1)
letter a Act No. 2 Year 2002 set up, " In order
hosting duties as referred to in Section 13 and
Article 14 in the field of criminal proceedings, State Police of the Republic
Indonesia is authorized to perform the arrest, detention,
shakedown, And the investigation. " But the authority granted
the legislation to Polri is certainly not without consideration.
The reason for the reason is the alleged criminal offence committed by
a person (including the applicant) who already has evidence that
strong.
That based on those descriptions, the House of views
provisions of Article 10 paragraph (2) Act No. 13 of 2006 on Protection
The witness and the Victim do not conflict with Article 28D of paragraph (1) and Section 28G
paragraph (1) 1945 Constitution.
Against such legal standing (legal standing) it, the House submitted
fully to the Chairman/Assembly of the mulya Constitutional Court
to consider and assess whether the applicant has a position
60
laws (legal standing) or not as provided by Article 51
paragraph (1) of the Constitutional Court and is based
The termination of the Court of Justice Perkara Number 006/PUU-111/2005 and Matter
Number 011 /PUU-V/2007.
Thus the House pleads if the Chairman/Assembly of the Constitution of the Constitution
that mulya gives amar the verdict as follows:
1. Stating that a quo was rejected for the whole or not-
it would not have been acceptable for a quo
2. The DPR's description was accepted for the whole;
3. Stating the provisions of Article 10 paragraph (2) of the Law Number 13 of the Year
2006 on Witness Protection and the Victims is not contrary to
Article 28D paragraph (1) and Section 28G paragraph (1) of the Country Basic Law
Republic of Indonesia 1945;
4. Stating the provisions of Article 10 paragraph (2) of Act No. 13 of the Year
2006 on Witness Protection and the Victim remains the legal force
binding.
[2.5] weighed that the Court had received a written notice of
The Witness Protection Agency and the Victim on September 1, 2010, which
outlined as follows:
1. Bill Number 13 of the Year 2006 on Witness Protection and Victims, has
provided specific assurance and legal protection to witnesses,
and the victims. Legal protection against witnesses, victims and labeling
is intended to provide a sense of security for witnesses, victims and prostitutes
executed in accordance with the provisions of the laws.
All witnesses, victims, and labeling require protection of this law.
Legal protection to witnesses, buoers, and victims given by
states to address possible threats and revenge through
legal efforts Which he might receive. Legal efforts or
use of this legal instrument can be done either through criminal efforts
nor data. For example, through a lawsuit or reporting a witness to the
investigation-an investigator for a criminal act that can be directed to
a witness or a whistle-perch (criminalization).
61
2. In Law Number 13 of the Year 2006 on Witness Protection and Victims,
also included a protection that is addressed to whistleblers
those who report crimes or crimes to the authorities
law enforcement. Although the given protection is not yet
includes the por in the context of protection against the whistle-blower which
has been widely practiced in several countries. But as a point
the beginning, the regulation still looks to LPSK to protect the
buoy.
3. The provisions of this legal protection are governed in Article 10 Law Number
13 Year 2006 stated that:
(1) Witness, Victim, and Report cannot be legally charged
criminal nor perdata on reports, testimonies which will, be,
or have been given it.
(2) A witness who is also a suspect in the same case cannot
be released from criminal charges if he turns out to be legally proven
and convinces the guilty, but her testimony can be made
a judge ' s consideration in easing the criminal who will dropped.
(3) The provisions as referred to in paragraph (1) do not apply to
Witnesses, Victims, and Statements That Give A Description Not to
good faith.
4. Under this section then the Act provides protection
the laws of 2 (two):
(1) against the Witnesses, Victims, and reports due to reports, testimony that
will, be, or have been given it, referred to in the case of the law. "por por"
by the Act is the person who provides information to
law enforcement regarding the occurrence of a felony.
(2) The witness is also a suspect in the same case.
5. Legal protection in the first category is an immunity that
is given to witnesses, victims, and the por for not being prosecuted
the law of both criminal and civil rights over the report, testimony that will,
medium, Or has been given it. However, this does not apply to witnesses,
victims, and the labeling who provided the caption is not in good faith.
According to the Explanation The Act referred to " give
62
The caption is not in good faith " in this regard among others gives
false captions, perjury, and evil facification.
6. This provision is a novelty in the criminal law
Indonesia to be able to apply to all criminal cases. Previous
the protection provisions in this category were only limited given to
money laundering cases. It is also limited to a legal context
criminal. Whereas the new provision applies also in the legal region
the data.
7. In the implementation of some countries these provisions are commonly referred to as
immunity or immunity given to the plow or witnesses
which provides the apparatus (disclosure) to the apparatus
law enforcement Regarding the crimes he was aware of and above
this information would certainly help the law enforcement authorities to
investigate or prosecute the perpetrators in court. This provision
constitutes a shield for criminal offenses.
II. The Importance Of The Witness Protection Of Collaborators (Crown Witness)
8. Protection in the second category, which is set in Article 10 of the paragraph (2)
is the legal protection given to the Witness who is also the suspect.
Yakni a Witness who is also a Suspect in the same case
does not can be released from criminal charges if he turns out to be proven
legitimate and assured of guilt, but his interest may be made
a judge ' s consideration in easing the criminal to be dropped.
In general referred to as: crown witness, a witness to a collaborator,
a collaborator of the law, a state witness, "supergrasses" and pentiti (Itali language that
means "those who have been tobate"). Or a minor offender.
9. The Act does not explain a more detailed intent of this,
but it can be interpreted that witnesses in this ketegory are status as
witnesses who are also suspects who helped reveal the criminal case,
may be:
a. provide a description in the trial for incriminating the accused
others;
b. provide information on the whereabouts of the evidence/evidence tool or
any other person who is already or who is not
disclosed;
63
c. and other contributions impacting the apparatus of the apparatus
law enforcement; and
d. The phrase is "in the same case" in the formulation of the above section. If
means this phrase is only in cases where the witness position
is also at the same time the suspect is in the same case.
10. The inclusion of this provision in Law No. 13 Tabun 2006 is not without
reason. The emergence of severe criminal cases thrusts a lot of challenges
for investigators and prosecutors. Most of these cases involve
a criminal act committed by some of the perpetrators who have
developed a strong bond with each other over a period
in particular, either through a personal connection or connection business or through
a society of professions. Such a bond is often mutually beneficial that
will cause the perpetrators to be united in the face of
the investigation or the possibility of a claim to protect
their interests.
11. With respect to the basic nature of the cases organized crime or white
colar crime, then these cases are more difficult to prove than with
another criminal criminal case: Perscales of obstruction. The following, which
is often found to include:
It is difficult to know who is the main culprit of his crime;
In most cases, those who know about the crime
like this are also related in it, and get profits from
the crime, so it ' s very unlikely to report it to
Authorities;
Most crime offenders use a link between some
The key perpetrator-and the basic nature of a relationship like this can only
be proven through the help of the perpetrator involved in the relationship that
referred to;
In most cases, it is very difficult or even there is no "place
case of case" or minim forensic evidence to help
identify the perpetrator;
The physical evidence of large crimes, such as transaction documents and assets that
purchased with the result of corruption, can hidden, destroyed, diverted,
or entrusted to another person;
64
In many cases, the perpetrator is the ruling person, who
may use their influence to interfere with the inquiry,
intimidating the witnesses, or obstructing witnesses in collaboration with
authorities law enforcement;
Often new lawmakers know about the following
The crime is long after it happened, so that the trail is hard to escape,
The evidence is hard to track, and the witnesses have been paid or have
an opportunity to make an alibi-a fake alibi.
12. In the case of corruption the Investigators and the Prosecutor in Indonesia also face
additional impediation in investigating and prosecuting such cases.
The reality that the economy in the country is very based on money
cash make suspicious cash transactions increasingly
difficult. In addition, the corruption of the government's ocnum aparatur in
the country is often seen vertically, with the participation of the
officials at a higher level who have a strong enough position to
persuaded officials who were at a lower level to not work
same, or otherwise to obstructing the investigation.
13. Due to problems inherent in corruption cases
the public, most prosecutors on large corruption cases in some countries
depend partly on the cooperation of those who have
direct knowledge about this crime and their involvement in
in it. Aside from corruption cases, crime case handling
organized, corporate accounting fraud cases, and also many types of
other complex crimes involving many defendants highly
depend on the evidence provided by those who have
direct knowledge of this crime.
14. Sometimes this "insider" is a perpetrator who is involved in the crime
in his own way. The person in can provide proof that
is important about who is involved, what the role of each perpetrator is,
how the crime was committed, and where other evidence could be found.
In addition to providing clues to the investigators, the person in this
sometimes participate in an undercover investigation, recording the evidence
the sound or the video as an important evidence in the prosecution. Akhimya, person
in this can be a very important witness during the trial,
65
gives evidence as the first person, an eyewitness to the crime and the top
the activities of the defendants. To persuade people in order to work
equals the investigation and prosecution of the other perpetrators in the act
This criminal, then needed using some kind of legal device
was able to break through the deadlock.
15. Since a person who has participated in a criminal act
in connection with a crime organization has knowledge
it is important about organizational structure, operating methods, activities and relationships
with Other groups are both local and international. Then more
the country has now formed a policy or policy for
facilitating the cooperation of those individuals in the investigation of the case
involving organized crime. These individuals are known
with a number of names, including long-running witnesses, crown witnesses,
witnesses to collaborators, legal collaborators, state witnesses, " supergrasses '' and
pentiti (Iope's language) "those who have been tobats").
16. Based on experts ' opinions, there is no associated moral element in
his motivation for working together. Most of them work together
doing so in hopes of receiving immunity or at least
a reduction in prison sentences and physical protection for himself and
his family. In the rules in several other countries, people like this
are the main participants in the witness protection program. The combination
leniation in (or even immunity and) prosecution with
witness protection is considered to be a very powerful tool in
the success of the prosecution of organized crime.
17. But in practice it can indeed lift some ethical issues
because it can also be seen as a gift-giving to criminals
with the release of punishment from its criminal acts.
18. To discuss these concerns, the "benefits" granted
a number of legal systems to collaborators were not fully immunity from
his involvement in felon, but rather a lighter sentence
that only could be was given at the end of his cooperation in the process
the trial. Regulations and policies on a number of countries clearly
separate acceptance in the witness protection program from profit
anything that may be given to participants by a public prosecutor or
66
by the court with regard to previous criminal acts, and
the rules and policies state that the legal collaborator
needs to carry out the prison sentence for his criminal conduct.
III. The background of the formulation of Article 10 of Law No. 13 of 2006
19. At first in the Witness Protection bill and the Victims, Article 10
is only a 1-paragraph list (not to be contained in three verses like
in the current Act):
"A Witness who is included as a suspect in a case that is not available to the victim. equal
cannot be released from criminal charges if he turns out to be proven
legitimately and convinces the guilty, but his testimony can be made
The judge ' s consideration in easing the criminal will rationed".
The entry of this passage in the bill was motivated against its growth. various
concepts such as Plea Agreement in some Countries. Previously in the bill
community initiatives (the proposed Sentra HAM UI and ICW) have included
this protection and looks the formula is almost the same as the proposed
by Baleg House in the bill, namely:
Article 11
(1) A witness who is also the defendant in the same case is not
may be acquitted of criminal charges if he is found guilty
valid and assured, but his testimony may be considered
the judge in easing the criminal to be dropped
(2) The provisions in the paragraph (1) above are not applicable for felonacts that
carried out with violence and criminal acts related to
a grave violation of human rights.
20. In its subsequent development through DIM, the Government later
proposes a redactional revision of Article 10 to:
"A witness who is also a suspect in the same case cannot
be released from prosecution criminal if he turns out to be legally proven and
convinces the guilty, but his testimony can be considered
the judge in easing the criminal to be dropped against him."
21. In a meeting of the Working Committee on the discussion of the witness protection bill and the victims
(Panja) on 31 May 2006, the Panja Meeting approved the formulation of Article 10
with some changes in the sentence being:
67
" A witness who is also a suspect in the same case could not
be released from criminal charges if he turns out to be legally proven and
convinces the guilty, but his testimony can be taken consideration
the judge in easing the criminal to be dropped against him."
22. The panja in the Meeting considers it important to agree to the article
that is due to the initial spirit of protection for witnesses and
victims who have contributed to the disclosure of the crime. The panja
also megaggap that it is unlikely that a witness and also a
suspect can be released from criminal convictions. That would be better if,
The witness contribution was made the basis for a judge to reduce
his sentence according to his contribution. According to the necessary Panja
is merely a provision of punishment reduction on the basis of his cooperation
the witness is concerned in the judicial process.
23. In a parliamentary hearing on June 15, 2006, between Tim Panja
with some experts to receive input in the discussion of the bill,
proposed regarding the need for protection to Whistle Blower,
Hold of facts in this bill and in the discussion of the Panja Meetings
subsequently, on July 6, 2006, which is based on the expert proposal.
The examiner again proposes the inclusion of a new paragraph [paragraph (3)]
in Section 5 which contains the following:
"Witnesses, and Victims, unable to be prosecuted legally both criminal and
the data for the report, the testimony that will, are, or have been given it"
That it is essentially not a bare provision as it is also
has been contained in the Money Laundering Act. But there is
the difference, where in the Protection Money Laundering Act
it is only given to the por whereas in the examination proposal for
the bill is addressed to witnesses and victims. The government proposes that
this provision is indeed an exception and more special.
24. However, concerns in the Panja Meeting due to the emergence of the new
paragraph (3) include the provisions of Article 10 on the witness of this suspect will
have the potential to protect the crime of the person in question, if
the witness It turned out to be a crime. Show the question until
limit when the witness is unable to be prosecuted? It must also be
68
explained. Based on these concerns, Panja later distinguished
earlier in which witnesses were not suspect and status
a suspect who gave his cotributary bare the reward which could be
given to him.
25. In addition, the Panja Meeting also stated necessary to think of the foundation
and its legal theory, lest it violate the principle
The equation in front of the law can be breached with this provision.
But the Meeting of Paja aware of the practical interest aspect then the provisions
it becomes very important to be listed, aside also has been
used in some countries.
26. The Chief Meeting of Panja then proposes that the provisions of paragraph (3) in
Article 5 of the whistle blower be included in Article 10 to
paragraph (1), it is to be based that in principle witnesses and victims that
have exposing a criminal offence cannot be legally prosecuted,
but it needs to be made an exception, a special provision if the witness
turns out to be in the category as the perpetrator in the case
same. Therefore, it is necessary to distinguish which witness which
is not a suspect and the status of a suspect is then Article 10
is changed to paragraph (2), as follows:
Article 10
(1) The witness and the victim, not may be charged with both criminal and
data for reports, testimonies that will, moderate, or have been
provided.
(2) A witness who is also a suspect in the same case cannot
be released from criminal charges if he turns out to be legally proven
and convinces guilty, but his testimony can be made
consideration the judge in easing the criminal to be dropped
against him.
May 31, 2006
"as referred to in paragraph (1) does not apply to the Witnesses, Victims,
and the Report which gives the caption not in good faith".
69
IV. Conclusion and Recommendation
27. Based on the above exposures it must be distinguished between the good formula
in Article 10 of the paragraph (1) and Article 10 of the paragraph (2) Act No. 13 of 2006.
That the formula 10 paragraph (1) is intended for the whistleblers whereas
Article 10 of the paragraph (2) is intended for the witness of a collaborator or with the language
The Act is aimed at the protection of witnesses and suspects
in Same case.
28. The formulation of Section 10 is either in paragraph (1) and paragraph (2) Act No. 13 of the Year
2006 is a very important provision for grant efforts
protection for witnesses or whorings that will contribute to
disclosure of cases criminal who is the mandate of the Institution
Witness Protection and Victims (LPSK). Therefore, the LPSK remains
adhering to the position of Article 10 should remain governed in Law No. 13
2006 of Witness Protection and Victims.
29. The LPSK realized that in its current application, Article 10
is still understood to be differently both by the public and by the authorities
law enforcement in Indonesia. Some of the things that are concerned with
the application of the section are:
a. Regarding Section 10 of the paragraph (1), in any event cannot be prosecuted
legally both criminal and civil rights to the witness of the above
the report, the testimony that will, be, or have been given it? Is
referring to the phrase, "on the report, the testimony that will, be, or have
been given it"? Would trend use of a lawsuit or report
a defamation of defamation or contempt for the por
of some existing cases may be included in that category
above?
b. With regard to Section 10 of the paragraph (2), is there a particular prerequisite to the
the status of this protection applicant (suspect)? In practice,
Which is it better to take precede the tail? Is
the case that was reported in advance or the case in which
a witness is a suspect? Or can both be done
at the same time?
70
30. The above things in practice make it difficult for protection by
LPSK against either the snitch or the suspect's witness, therefore
is required for a new interpretation of the section. We view
MK may provide a more operational interpretation of Article 10.
But we hope such interpretations have to be aligned
with a passion and purpose in the form of Act Number 13 Year
2006 on Witness Protection and Victims.
31. LPSK views Law Number 13 Tabun 2006 must be more previewed
including provisions in this Section 10. Hence the LPSK
has attempted to perform a legislative review of Article 10. Related to
with the plan, the current LPSK has cooperated with some
related agencies in conducting the revision plan Act No. 13 of 2006.
[2.6] Draws That The Applicant has delivered a written conclusion
which was received in the Court of Justice on 2 September 2010
whereas the Government has delivered a written conclusion received in
Heated of the Court on September 6, 2010, which at its point
each remained with its stance;
[2.7] weighed that to shorten the description in this ruling, all
something that happened at the trial be quite appointed in the news of the event
the trial, which is one unitary one inseparable with
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the a quo plea is to
test Section 10 of the paragraph (2) Act Number 13 of the Year 2006 on
Witness Protection and Victims (Sheet) Republic of Indonesia Year
2006 Number 64, Additional Gazette Republic of Indonesia No. 4635,
subsequently called Act 13/2006) against the Constitution of the Nation
Republic of Indonesia in 1945 (later called UUD) 1945);
71
[3.2] weighed that before entering the subject of the application, the Constitutional Court
The Constitution (subsequently called the Court) was first going
consider:
a. Court Authority to check, prosecute and disconnect
plea a quo;
b. Legal standing (legal standing) The applicant to apply for
a quo;
Constitutional authority
[3.3] weighing that under Section 24C of the paragraph (1) of the 1945 Constitution and the Article
10 verses (1) The letter of a bill MK, as well as Article 29 paragraph (1) letter a Law No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
2009 No. 157, Additional Gazette of the Republic of Indonesia Number
5076, next called Act No. 48/2009), one of the authorities
Constitutional Court is to prosecute on the first and last level that
the verdict is final to test the legislation against the Act
Basic;
[3.4] Draw that the applicant's plea is to test
the constitutionality of the norm Article 10 of the paragraph (2) of the Act of 13/2006 against the Constitution of 1945, which
becomes one of the authority of the Court, so that the Court
is authorized to examine, prosecute, and cut down the a quo;
The Occupation of Law (Legal Standing) The applicant
[3.5] A draw that is based on Article 51 of the paragraph (1) of the MK Act and
The explanation, which may apply for testing of the Act
against the Constitution of 1945 is those who consider the rights and/or authority
the constitutionality given by the Constitution of 1945. harmed by the prevailing
Act, i.e.:
a. Individuals in Indonesia (including groups of people
have common interests);
72
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 name of the supplicant is: "
. the constitutional rights and/or constitutional authority granted by the Constitution
1945 resulting from the enactment of the legislation
testing;
[3.6] In a draw that the Court since the Constitutional Court's termination
Number 006 /PUU-III/2005 dated May 31, 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007 dated September 20, 2007, as well as the ruling-
The subsequent ruling is the loss of rights and/or authority
constitutionally referred to Article 51 of the 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 are considered
aggrieved by the enactment of the legislation, which the testing is required;
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. A causal link (causal verband) between the intended loss
and the applicable law-moveed act;
e. It is possible that with the request of a request then
constitutional losses such as those that are postulate shall not or no longer occur;
[3.7] Draw that based on the description as
paragraph [3.5] and [3.6] at the top, next the Court will consider
73
regarding legal standing (legal standing) the applicant in the plea a quo
as follows:
[3.8] Draws that on the applicits of the applicant postulate as
the individual of the Indonesian citizen which has a constitutional right that
set in the 1945 Constitution:
Article 27 paragraph (1) states, " All citizens together
the position is in law and government and must uphold the law
and that government is without exception ";
Article 28D paragraph (1) states," Everyone is entitled to a confession,
guarantee, protection, and fair legal certainty as well as the same treatment
before the law ";
Article 28G paragraph (1) of the 1945 Constitution that states, " Everyone is entitled to the
personal self-protection, family, honor, dignity, and property in
under his power, as well as the right to feel safe and protection from
the threat of fear to do or not to do something that is right
terms ", and
Article 28J paragraph (2) Constitution of 1945 which states, " In exercising the right and
its freedom, each person is mandatory subject to the specified restriction
with legislation with the intent solely to guarantee the recognition
and respect for the rights and liberties of others and to meet
fair demands in accordance with moral considerations, religious values,
security, and public order in a democratic society ";
The constitutional rights have been harmed by the enactment of the provisions of Article 10
paragraph (2) Act 13/2006.
[3.9] Draw that with regard to the consequences experienced by
The applicant is associated with the constitutional right of the applicant, according to the Court,
there is a causal link (causal verband) between the losses referred to and
the enactment of the legislation that the test is forgoing, so prime facie
The applicant qualified the legal position (legal standing) to submit
the application for the testing of Section 10 of the paragraph (2) Act 13/2006 against UUD 1945;
74
[3.10] Draw that by the case the court checks,
prosecute, and discharges a quo, and the applicant has a position
law (legal standing), next the Court of Justice will be held in the United States. Consider the subject
plea;
The opinion of the Court
In Provision
[3.11] Draw that the applicant in his request submitted
the application of the provision for the reasons that at its point, i) for prevent
occurrence of a violation of the applicant ' s constitutional rights (with a fixed way
detain and inspect the applicant as a Suspect), therefore the applicant
implores the Assembly of Justice of the Constitution to publish the Sela Verdict which
ordered the Indonesian National Police to stop and or
pending investigation of alleged criminal charges involving the applicant
as a Suspect; ii) in order for the applicant to obtain a guarantee of legal certainty
for the process of being led by the applicant, because of the Indonesian Republic Police
continue to do legal actions by keeping guidelines on the norm
that are being tested, then the unconstitutional right of the applicant is continuously
violated intentionally. Under the control, the applicant is then
pledging the verdict of the Court to the Court for i) Declaring postponing
execution of Article 10 of the paragraph (2) Act No. 13 of 2006
on Witness Protection and Victims (LPSK) until there is a final verdict
The court against the subject of a quo; ii) commands it
The State Police of the Republic of Indonesia to stop the investigation process
the case of PT. Salmah Arwana Lestari with the number of Police Report No. Pol.
LP/272/IV/2010/Barescream on April 21, 2010 on behalf of Susno Duadji and
criminal acts of corruption in the management of use and
accountability budget grant from Pemprov West Java Year 2008
with the Report number No. Pol. S. Pgl ./485/VI/2010/Pidkor &WCC on suspects
Susno Duadji, at least until the ruling of the Constitutional Court
in case a quo with a fixed legal force; iii) ordered it to
The State Police The Republic of Indonesia to release the applicant from
the prisoner and submit the applicant to the Witness Protection Agency and
The victim as a protected witness; iv) ordered the Prosecutor
75
South Jakarta State to stop the prosecution process and or
ordered the South Jakarta District Court to stop the proceedings
the trial of the case of PT. Salmah Arwana Lestari with the Report Number
Police No. Pol: LP/272/Iv/2010/Barescream on April 21, 2010 for suspects
Susno Duadji and criminal corruption charges in the management of the use
and the appropriation budget grant from the West Java Pemprov in 2008
with Report number No. Pol: S. Pgl ./485/VI/2010/Pidkor & WCC for the suspect
Susno Duadji, at least until the Constitutional Court's ruling
in case a quo of a fixed legal force. In the case of the applicant,
The court had taken a stance on the August 19, 2010 session with
stating that it rejected the petitioner's provision. Therefore, through
this ruling, the Court again expressed its attitude about the provision application
that. According to the Court, a plea for the verdict a quo is not appropriate
according to law because it is not directly related to the subject of a a quo
with some reason:
-that the termination authority of the inquiry is criminal case is not
is the authority of the Constitutional Court, because of authority
The Constitutional Court is expressly set firmly in Article 24C paragraph (1)
Constitution of 1945 which is then repeated again in Article 10 of the paragraph (1) letter of a
up to with the letter d Law Number 24 of 2003 on
Court Constitution that states, " Constitutional Court authorized
prosecuting at first and last rate of the verdict is final
for 1) Testing the legislation against the Basic Law of 1945, 2)
Dealizing the authority dispute the institution of the state that its authority
is snapped by the Constitution of the Republic of Indonesia Year 1945,
3) Desettled the disbandment of the political party, and 4) Desettled the dispute about
the result of the general election ";
-that other than that, the request of the provision submitted the applicant is not right
according to the law because it is not directly related to the subject of the request
a quo with some reason:
First, in Test of Act (judicial review), verdict
Court only test abstract norms, do not prosecute concrete cases
such as the inquiry or prevention in the criminal case against the applicant;
76
by the request for the applicant's provision has entered a concrete case
then the Court cannot grant it.
Second, in line with the first reason then the Court should
reject The application of the provision regarding the investigation and the prevention that
is done by the Prosecutor's institution because of the Court's ruling on the norm
in the case of Testing Act (judicial review) is a erga omnes.
Meaning, is common and binding for all cases across Indonesia.
By that cause, the Court cannot break the concrete case that is on
only against one such case in the plea a quo because if it is
done means contradictory to the erga omnes ' properties.
Third, the Court ruling is prospective in accordance with the provisions
Article 58 of the MK Act as well as Article 38 and Article 39 of the Constitutional Court Rules
No. 06 /PMK/2005 on the Perkara-Event Guidelines Testing
The Act, so whatever amar the Court's ruling in the matter
a quo does not retroactive against any concrete matter already in progress.
Based on those reasons, the Court reaffirm, fixed
rejecting the applicant ' s application for the provision;
Pokok The request
[3.12] weighed that the subject of the applicant is testing
the constitutionality of Article 10 of the paragraph (2) of the 13/2006 Act that states, " A Witness
which is also a suspect in the same case cannot be Acquitted of prosecution
criminal if he turns out to be legally proven and convincingly guilty, but
His testimony may be a judge's consideration in the criminal extenuation
that will be dropped ".
[3.13] Draw that before considering the subject
pleas, the Court sees the need to decipher briefly
regarding the background, intent and purpose of the creation of Act 13/2006, so
may acquired an understanding of the a quo Act, in particular the Article
10 with three verses contained in it, in a perspective that
is relatively more complete and adequate.
77
[3.13.1] That important matters in the disclosure process of the criminal conduct case
are suspects, witnesses, and victims, including the por por. Witnesses and victims
is a highly defining element in the criminal justice process,
but its existence has so far less attention, so much
a criminal case that was not revealed and was not resolved because of law enforcement
often difficulty presenting witnesses or victims due to the threat, either
physically, psychically, or his soul from certain parties, property or
the family of the witnesses or victims who reported to the law enforcement;
[3.13.2] That in order to help law enforcement Uncovering the case
The criminal is required to grow people's participation. To that it needs
created a conducive climate by providing legal and security protection
to any person who knows or finds something that
helps uncover the criminal acts and report it to enforage
the law. Those are witnesses, victims and the por;
[3.13.3] That witnesses, victims, and prostitutes need to get legal protection
so that they are not worried or fear his soul is threatened by certain parties,
when they are required by law enforcement helping to uncover the case
criminal, whether in the level of investigation, inquiry, prosecution and
examination in court. Legal protection to them in the
criminal process is not specifically regulated, whereas the suspect or defendant has
obtained legal protection under Article 50 to Article 68
Law No. 8 of 1981 KUHAP. Therefore, based on the principle of similarity in
in front of the law (equality before the law) in the principle of state of witness law and/or
the victim must be granted legal protection guarantee.
[3.13.4] That with the background back, intent and purpose as
described above that the 13/2006 Act was made by the establishment of the Act.
The House of Representatives and the President jointly agreed
the establishment and the presentation of the 13/2006 Act with intent and purpose
providing legal protection against witnesses, victims, and whistlebings to be
78
they are free of concern and fear of threats when
help law enforcement unravel a criminal case.
[3.14] A draw that in the framework of understanding as described
in considerations above and under its name Act 13/2006 on
Witness Protection and Victims, as well as the title of bab/section, " Protection and Rights
Witnesses and Victims, then Section 10 consisting of the three verses must
be interpreted as the legal provisions to protect witnesses, victims and placings
that is not a suspect and who Good faith, as a reward (reward) for
witness participation, victim and por favor as a good citizen help
law enforcement uncovers the occurrence of a felony. In line with that then
Section 10 of the paragraph (2) and paragraph (3) shall be defined as a clear
and resolute (expressis verbis) of the exctional nature of Article 10 of the paragraph (1), so
the applicable provisions of the Article 10 of the paragraph (1) must be interpreted to be not valid
against witnesses who are also suspects in the same case, also the por
is not in good faith. However, the participation of the witness is also a suspect,
if in the process of the law it is legally proven and
convinces, the witness is indeed not exempt from prosecution
criminal, but His testimony in uncovering a criminal act is granted
award, which is as considered in the subtraction
pidananya.
[3.15] Draw that based on the description in such consideration in
over related to the dalil-dalil in the applicant's request then the issue
the law to be answered by the Court is, whether the provisions of Article 10
paragraph (2) which gives only the award (reward) against the witness participation
that is also a suspect whose interest has helped in
the disclosure of the criminal offence only as a consideration of criminal reduction,
but does not release him from the lawsuits against the principle-
principle:
79
-participation in government as set out in Article 27 paragraph (1)
Constitution of 1945 stating, " All citizens at the same time
in law and government and shall uphold the law. and
The government is with no exception ";
-a fair legal certainty as set in Article 28D paragraph (1) of the Constitution
1945 stating, " Everyone is entitled to the recognition, guarantee,
protection, and fair legal certainty as well as the same treatment at
before the law ";
-deprive the rights of safe and protection of the threat of fear
to do as set in Section 28G paragraph (1) of the 1945 Constitution
states, " Everyone is entitled to the protection of the law. Personal, family,
honor, dignity, and property under his power, as well
entitled to a sense of security and protection from the threat of fear for
commit or not to do something it is a fundamental right ", and
-limiting human rights (human rights) by preventing people do
fair demands according to moral and religious values
as set in Section 28J paragraph (2) of the 1945 Constitution that states,
" In exercising their rights and freedom, each person is mandatory subject to the
the restrictions set out with legislation with intent solely-
the eyes to guarantee recognition as well as respect for rights and freedoms
others and to meet the fair demands accordingly.
moral considerations, religious values, security, and public order in
a democratic society ";
[3.16] Draws, to answer the legal issue of the Court
gives consideration according to the problem as follows:
1. Participation In The Governance
[3.16.1] Draws That The Applicant postulate with the enactment of Article 10
80
paragraph (2) Act 13/2006, the right to participate in law and governance
as defined in Article 27 paragraph (1) of the 1945 Constitution. The rights were lost
since the applicant has been detained by the Investigator for reasons other than as a witness
The applicant has also been set as a suspect. In order to support the control
in addition to submitting the papers/writing, the applicant also proposes the expert Prof. Dr.
Saldi Isra, S.H., MPA., which in the matter specifies, Article 10 of the paragraph (2) of the Act
13/2006 specifically does not benefit on the eradication agenda
the corruption and eradication of the law mafia, because 1) does not provide guarantees
for witnesses and victims; 2) make it difficult to get key witnesses in
settlement of corruption cases and mafia laws (especially those that category
scandal); 3) difficult to dismantle the practices of corruption and mafia in the environment police
law enforcement; and 4) witnesses who provide the caption may well be
suspects. Against the applicant's control, upon divorce of the request
The applicant, the expert on the Government, the Council's description
The People's Representative, and the written testimony of the Witness Protection Society and
Victims, the Court of Justice. argues, that as described in
the consideration of paragraph [3.14], the provisions contained in Section 10 of the paragraph (2) of the Act
13/2006 are provisions that can be defined very clearly and
unequivocal (expressis verbis) that the normative substance is giving
the award ( reward) against the participation of witness who is also a suspect who
his interest has been helpful in the disclosure of a criminal offence with
making it a consideration of criminal reduction. Based on
the substantive provisions, states through the power-forming power-
invite should be deemed to have not to ignore the participation of the citizens who
have contributed to the disclosure A felony. Country
gives the award of its pidanical reduction. How big it is
it reduces the pidation of being handed over to the discretion of the judge who
is controlling it based on his contributions in the participation of uncovering the action
criminal. An award is a choice of legal choice (legal choice) that
81
performed by the state in giving awards to witnesses also
suspects, as well as encouraging public participation of uncovering felon.
In the General Description of Act No. 13 of 2006 mentioned,
" In order to foster community participation to unravel the follow
criminal, need to create a climate that is conducive to giving
legal and security protection to any person who knowing or
found a thing that could help uncover the follow-up criminal
has occurred and reported it to law enforcement ". Based
the description in such consideration, according to the Court of provisions in the Article
10 paragraph (2) Act 13/2006 is not proven to be contradictory with Article 27 of the paragraph (1) of the Constitution
1945;
2. Certainty of Fair Law
[3.16.2] A draw that the applicant has lost the right to
recognition, assurance, protection, and fair legal certainty, as
guaranteed by Article 28D paragraph (1) of the 1945 Constitution As a result of the termination of Section 10 of the paragraph (2) Act
13/2006 In order to support the applicant in addition to submitting evidence
surat/writing also submitted the expert Prof. Dr. Saldi Isra, S.H., MPA., who at
instead explained, Article 10 of the paragraph (2) of the 13/2006 Act contains the potentially formula
embed an interpretation that can harm witnesses and victims
thus eliciting legal uncertainty as opposed to Article
28D paragraph (1) of the 1945 Constitution. Based on the reason for legal and benefit certainty
that, many countries in the world provide protection to witnesses and
victims, such as the United States, South Africa, Canada, New South Wales
Australia, and the United Kingdom by not giving a suspect status to
witnesses, so that witnesses easily opened up and dismantled the crime-
major crimes including corruption. As for the expert Dr. Eddy O.S. Hiariej,
describes Article 10 of the verse (2) of the Act of 13/2006 does not provide a formula
clearly and resolute against the position of witnesses and suspects as well as in conditions
how a witness is a suspect. when at the same time
82
also has a status as a reporter witness. This gave rise to multitasers and
potentially eliciting an unconstitutional interpretation, thus causing
a legal uncertainty in conflict with the 1945 Constitution. In addition, Article 10
paragraph (2) of the Act of 13/2006 gives rise to the three cuperates. First, a witness who
is also a suspect in the same case would eliminate the right excusatie
the defendant as one of the judicial objectivity, because on the one hand,
when the person As a witness to the court, his limitations were valid as
a proof tool for being pronounced under oath, but on the other side when
concerned with the status as the defendant's description was not in
under oath. Second, is ambiguous and raises the question, who is
that will be arrated first, whistle blower or the perpetrator he reported,
or trial concurrently. Third, is contra legem with
provisions of Article 10 of the paragraph (1) of the Act of 13/2006 that release witnesses, victims and
the perch of the lawsuits. Against the control, after a divorce
pleas of the applicant, expert captions, Government captions, captions
People's Representative Council, and the written testimony of the Witness Protection Institute
and the Victims, the Court argued, that as described in
paragraph [3.14] and in accordance with the name Act 13/2006 which is about
Witness Protection and Victims and the title of the section, Protection and Witness Rights
and Victims, then the substance of the norm Article 10 {\b {\cf1 \f1 \" \" \" \" is to protect the witness, the victim, and
the por, not the witness who is also a suspect in the same case and not
the non-faith whistleber. The protection of the law as
awards (reward) for the participation of witnesses, victims and forkmen as citizens
a good country in assisting law enforcement in uncovering
a occurrence of a criminal offence. In line with that, Section 10 of the paragraph (2) Act 13/2006
states, " A witness who is also a suspect in the same case is not
may be released from criminal charges if he turns out to be legally proven and
convinces guilty, but his testimony can be a judge's consideration
83
in extenuating criminal to be dropped ". Awards by state
which are given to witnesses who are also suspects in question should be viewed
as justice because in it there is balance (balancing) between
contribution of crime disclosure and criminal reduction to errors.
Therefore, it is not appropriate to be interpreted a contrario that the witness who
is also a suspect in the same case not getting legal protection,
so it does n' t get anything. Not exactly that interpretation
due to the fact as a witness he received an award under Article
10 paragraph (2) of the Act a quo due to his participation in uncovering
a felony, and as a suspect/defendant he has obtained protection
the law based on the KUHAP as described above. Article
10 paragraph (2) of the Act of 13/2006 as an exctional provision of Article 10
paragraph (1) of the 13/2006 Act is in contrast to Article 10 paragraph (3) of the Act of 13/2006.
The difference lies in the award. Witnesses who were also suspects
received awards, while witnesses, victims and non-official labeling
in good faith, were legally prosecuted, but did not receive an award
in the form of a reduction in its pidanings. Such provisions have been sufficient
giving it justice. The provisions of Article 10 of the paragraph (2) of the Act of 13/2006
have meaning or are the assertion that a protected witness
is merely a witness who is not involved as a perpetrator in the criminal act
that is. Based on the description in such consideration, according to the Court
the provisions of Article 10 of the paragraph (2) of the 13/2006 Act do not conflict with Article 28D
paragraph (1) of the 1945 Constitution;
3. Safe and Protection of Fear Threats
[3.16.3] A draw that the applicant has lost the right to
a sense of safety and protection from the threat of fear to commit, as
guaranteed by Article 28G verse (1) The 1945 Constitution that states, "any person entitled
for personal protection, family, honor, dignity, and property
under its authority and entitled to a sense of security and protection from the
84
the threat of fear for committing or not doing something that is right
-as a result of the enactment of the provisions of Article 10 of the paragraph (2) Act 13/2006
thus according to the applicant, contrary to the Article 28G paragraph (1) of the Constitution of 1945
which states, "... and is entitled to the safe and protection of the threat
fears to do or ...". In support of his control, the applicant in addition to
filed a proof of the letter/writing also submitted the expert Prof. Dr. Saldi Isra, S.H.,
MPA, which in its press specifies, Section 10 of the paragraph (2) Act 13/2006
potentially damaging or otherwise. Thwarting the initial intent of the formation of Law 13/2006,
and not in line with the intent in Chapter II, protecting witnesses and victims,
but instead it could threaten witnesses and victims. Against this, after
defile the request of the applicant, the expert captions, the Government's description,
the statement of the House of Representatives, and the description of the Institute
Witness Protection and the Victims, the Court argued, The applicant ' s control
states, if the section is used with the wrong interpretation
potentially eliminate the right of safe and protection from threat
fears to commit to the por or witness [vide Request points 10
page 16 and points 14 page 14] is not appropriate, cause according to
The court of formulae the norm in section a quo is quite clear, resolute, and not
ambiguous. Thus, according to reasonable reasoning, it encourages
that the perpetrator is to be truthful in his
testimony in order to uncover the criminal offense. In contrast, there is no
argumentation that reasonable reasoning can be accepted if the terms
thus make people feel afraid and feel insecure for
giving testimony. On such grounds the Court does not agree with
The applicant of the applicant, Prof.Dr. Saldi Isra, S.H., M.P.A. stating, Article 10
paragraph (2) of the Act of 13/2006 is not in line with the intent in Chapter II, protecting witnesses
and the victim, But it can be a threat to witnesses and victims. Thus
that Article 10 paragraph (2) of the 13/2006 Act is contrary to Article 28G of the paragraph
(1) The 1945 Constitution is unproven and unwarranted according to the law;
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4. Restrictions on Human Rights
[3.16.4] Draw that the applicant postulate has lost rights and
the freedom to meet fair demands in accordance with consideration
morale, religious values, security, and the public order in a society
democratic, especially in relation to "corruption prevention"
as guaranteed by Article 28J paragraph (2) of the 1945 Constitution as a result of expiring
provisions of Article 10 paragraph (2) of Act 13/2006. To support his control, the applicant
submitted the expert Dr. Eddy O.S. Hiariej, who explained it in his section
10 verses (2) contrary to the spirit in the history of whistle-blower, because:
(i) whistle blower not being given protection from the threat of his conspirators, (ii) not
making information whistle blower as a preliminary proof to unravel
crime syndicate, and (iii) the whistle blower information that unravels
is used as an excuse to remove criminal charges. Article 10 of the paragraph (2) of Act 13/2006
also gives rise to the three cuperates. First, a witness who is also a suspect
in the same case would eliminate the right excusatie the defendant as
one of the elements of the judicial objectivity, because on the one hand, when the person
as a witness In court, his limitations are valid as a tool of evidence because
is pronounced under oath, but on the other hand when concerned
status as a given caption is not under oath.
Second, is ambiguous and begs the question, who would
be judged first, whistle blower or the perpetrator he reported, or
arraignment concurrently. Third, is contra legem provided
Article 10 of the paragraph (1) of the Act of 13/2006 that exonerates witnesses, victims and the rights of
the lawsuits. Against the control, upon divorce of the application
The applicant, the expert captions, the information of the Government, the captions of the House of Representatives
People, and the written testimony of the Witness Protection Society and the Victims,
The court argued, that the constitutional norm of Article 28J paragraph (2) of the paragraph (2) of the Constitution
1945 is a provision that allows the state to limit
the implementation of human rights and that each person is mandatory subject to such restrictions.
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Restrictions are intended to meet the terms of: (i) with the Invite-
Invite, (ii) with the intent to guarantee recognition and respect for
the rights and liberties of others, and (iii) to meet the demands that fair to
with moral considerations, religious values, security, and public order
in a democratic society. According to the Court, the provisions of Article
10 verses (2) of the 13/2006 Act are not restrictions on the implementation of human rights.
The provisions contained in it are regarding lawsuits against
a suspect who has been legally proven and convincingly guilty of doing
a criminal offense, still legally prosecuted even though he has provide
testimony against the same case, as the granting of testimony is not
removing its pidanical liability. Such provision is not
constitutes a limitation, but is a reasonable one based on
justice and is the principle that is embraced in the criminal legal system in
Indonesia. Because of the provisions of Article 10 of the paragraph (2) of the Act of 13/2006 not to be
the limitation of human rights implementation then the Court does not need to test the dalil
The applicant is further related to the terms of the constitutionality
the restrictions Human rights. As for the applicant ' s control of the whistle blower,
The court argued that the a quo Act did not set up
about the whistle blower. In relation to this, the Court agrees
with the Government stating, " The complexity of the whistle position
the blower (battlers) caused the perumus of the legislation
a quo decided not to enter the whistle blower ... ". With
so the applicant ' s control is irrelevant to consider, so
should be ruled out;
[3.17] It is balanced that regardless of consideration Court against
legal issues above, the Court needs to consider things
such below:
[3.17.1] That the Court assesses there is a legally weakened choice
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about the cancellation request of Section 10 of the paragraph (2) of the 13/2006 Act, which was submitted
by the applicant. On one side the Court understands the applicant that
if the section is left to remain in effect there will be many people who are afraid
to report and testify in the same case as it could
be targeted criminalization without being held for protection, but on the other
the Court also understands the Government's view that if
the section is abolished could pose a possibility or a door for the perpetrator
a criminal offence for Take shelter and save yourself through the absence of the norm
that. In addition to the witness, the victim, and the reporter were not the participants
A criminal offence in the inclusion of the inclusion, then the person in question has received
legal protection under Article 10 of the paragraph (1) Act 13/2006. Therefore,
The court assesses that it is a legal policy option that
does not contain the problem of the constitutionality of the norm, so that the decision
The applicant is unwarranted according to the law;
[3.17.2] That the applicant postulate Article 10 of the paragraph (2) of the 13/2006 Act of 13/2006 should
be given the constitutional interpretation that, " a witness who is also a suspect
in the same case may not be exempt from criminal charges if
stated that the position as a suspect is set in advance
before a witness gives testimony in the case ". According to
Court, the plea is not exact cause without interpretation
conditional (conditionally constitutional) substantively as well as
A grammatical indeed for such a thing must be declared to have been proven
lawfully and convincingly guilty of committing a criminal offence. Thus,
there should be no other interpretation for the phrase as it is clear and resolute
(expressis verbis) a convicted man is surely to be
the suspect first.
4. KONKLUSI
Based on the assessment of the facts and laws as outlined
above, the Court concluded:
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[4.1] The court is authorized to check, prosecute, and disconnect
plea a quo;
[4.2] The applicant has a legal position (legal standing) for
applying for;
[4.3] Pokok a non-proven and unwarranted law.
Based on the Constitution of the State of the Republic of Indonesia
In 1945 and given the Law No. 24 Act 2003 on
Constitutional Court (State Gazette) Indonesia Year 2003 Number
98, Additional Gazette Republic of Indonesia Number 4316), Invite-
Invite Number 48 Of 2009 On The Power Of Justice (State Sheet
The Republic Of Indonesia In 2009 Number 157, Additional State Sheet
Republic Indonesia Number 5076);
5. AMAR RULING
PROSECUTING,
STATES:
IN THE PROVISION REQUEST
REJECTING THE APPLICANT ' S PROVISION;
In case of the case:
Repleting the applicant's plea for the whole;
Thus decided in a Consultative Meeting of the Judges by
nine Constitutional Judges on Friday, the third of September of the year
two thousand ten and spoken in the Plenary Session of the Constitutional Court
open to the public on this day, Friday the twenty-fourth month
September of the second year Thousand ten by nine Constitutional Judges, which is Moh.
Mahfud MD., as Chairman of the Member, Achmad Sodiki, M. Arsyad
Sanusi, M. Akil Mochtar, Maria Farida Indrati, Harjono, Muhammad Alim, Ahmad
Fadlil Sumadi and Hamdan Zoelva each as a Member, with
assisted by Cholidin Nasir as Panitera Replacement, as well as attended by
89
The applicant/Power, the Government or the representing, and the People's Representative Council
or represents.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd. td
Achmad Sodiki
ttd.
M. Arsyad Sanusi
ttd.
M. Akil Mochtar
ttd.
Maria Farida Indrati
ttd.
Harjono
ttd.
Muhammad Alim
ttd.
Ahmad Fadlil Sumadi
ttd.
Hamdan Zoelva
6. DIFFERENT OPINIONS (DISSENTING OPINION)
Against that ruling, a Constitutional Judge Hamdan Zoelva
has a different opinion (dissenting opinion) as follows:
The applicant's plea is at its point. extend the constitutionality
Article 22 paragraph (2) Act No. 13 of 2006 On the Protection of Witness and Victims,
determining: " A witness who is also a suspect in the case
is the same as not being released of criminal charges if he turns out to be proven
legitimately and Guilty, but his testimony can be made up.
The judge ' s consideration in easing the criminal to be dropped ".
90
According to the applicant, section 22 of the paragraph (1) of the Act a quo contradictory
conditional with the Constitution of 1945:
-Article 27 paragraph (1), the right to participate in law and governance,
-Article 28D paragraph (1), the right above recognition, warranty, protection and certainty
fair law;
-Article 28G, the right of safe feel, and protection from the threat of fear
to do;
-Article 28J paragraph (2), rights and freedom to meet Fair demands
in accordance with moral considerations, religious values, security and order
common in democratic terms;
According to the applicant, its constitutional rights guaranteed by the constitution
it is harmed by the enactment of Article 22 of the paragraph (1) Act a quo, due to the applicant
which is already well-emphasized has been open and report on corruption cases in
law enforcement agencies (police and force chime) justeru are made a suspect
first and detained by the Police. According to the applicant, it should be
The applicant as a witness who reported the case was secured
as a reporter for not being taken as a suspect as well as not being held.
The request was submitted in front of the request. The current Court of Justice
is a unique case, as it is not fully testing
invite-invite will be but more on a constitutional complaint or
constitutional complaint, as it is strongly linked to case in concrito which
encountered the applicant.
In check and The Court of Justice to uphold the law and justice, as well as the achievement of goals
social justice and general health, is the principle that should be
the main cornerstone for the Court. There are three fundamental aspects that should be
considered by the Court, which is the principle of justice for each citizen
as well as the principle of precede interest and public health and crime
corruption as extra ordinary Crime and organized crime.
Therefore, there are three fundamental reasons why the Court
should grant the plea, which is:
First, the aspect of justice. The policy of setting the applicant as
a suspect followed by an act of arrest and arrest is a form of
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actions and treatment that threaten the freedom of the applicant to teruas
uncover the corruption case that it has reported. The applicant has
in good faith opening and reporting of corruption cases in the institutional environment
law enforcement, in this case corruption crimes have been categorized as
extra ordinary crime and organized Crime, should be given protection and
a reasonable tribute, by giving the opportunity to
The applicant to open the case in the vastness or other cases
which he knows with a sense of security without Fear. The applicant 's strategic position
as a former key official in the law enforcement institutions' environment in
the country is a very important source of crime information.
The applicant ' s locator as a suspect followed the action arrest and
incarceration in such cases is one form of action that
meets a sense of justice and violates the principle of a fair legal guarantee and
curb the freedom or at least stop the move The applicant
carries out its constitutional rights and obligations as a citizen country to
continue to open known corruption cases or other cases
that may be possible.
Second, The principle of health/general interest. Whatever background
the applicant's actions that open and report on the corruption cases that
know in the internal instinct, the move the applicant has
provides a very large benefit in the effort eradicate crime
corruption. With the move of a citizen, such a move
The applicant, there is a very large hope of the people going to open a wide range
an uncommendacity act that covers part of the law enforcement that
is immoral and engaged in a crime of corruption. The applicant ' s action has
provided a good effect for the eradication effort of corruption. It should be,
The applicant is granted legal protection in order to continue to open and
report on the various cases which he knows are comfortable, without pressure
let alone with arrest and arrest, even if it may be the applicant
previously was a misunit of the crime. The applicant's actions
that open such cases are very good and much greater benefits
for the interests and general health, and the interests of the nation and the state.
Third, Corruption as a tremendous crime and Organized. Corruption,
as is the crime of terrorism, narcotics crime, as well as a part of the crime
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finance and banking such as money laundering is a crime
outstanding (extra ordinary crime) and in general it is a crime
organized (organized crime) and done by the smart people (white
collar crime). A crime like this can only be revealed in ways that
is remarkable. One commonly known way of uncovering crime
like this one, is to pull out one of its network's eyes, which is
by providing protection and security security to one of the eyes
chain the network (person in person) who knows the mode and the crime network
that, in order to unlock the very closed crime network. With
it acts as a suspect against the fact that the reporter
in that case, and immediately continued arrest and arrest in
cases that would otherwise close or at least be small.
likely disclosure of the network of crimes more broadly or equally
by letting it not be the most widespread crime.
The crime of corruption in Indonesia, it has been set as a common enemy
which has to be eradicated since the beginning of the 1999 reform period of the year
declaration of MPR RI Number XI of 1998, change of Invite-
Invite Number 31 Year 1999 on the amended Corruption Eradication
with Act Number 20 of 2001, the formation of the KPK in the year
2003 and Various other government policies. This means,
The eradication of corruption is one of the public justice demands that should
be well-responded by various state institutions. Because of this, eradication
a crime of criminal corruption that is an extraordinary crime (extra
ordinary crime) and the organized crime (organized crime) is one
justice demands that Be desired today as transitional justice.
The applicant is an important former official in the enforcement of the enforcement institution
the law is the RI Police, an institution that is in the public spotlight
because May be a crime conspiracy by some people in the neighborhood.
The agency. In the case of the tax on Gayus Tamstockpile, it must know more
the mode and network of the crime is in Indonesia, so it should be citizens
countries like the applicant are granted protection as a witness. Because, in
the reality is at least two of the first three cases uncovered and
reported the applicant is a case of criminal laundering and corruption by
suspect Gayus Tamhows and corruption cases and bribery on PT Arwana
93
Lestari has been well revealed and taken to the Court. While one
another case is the case of budget use at the Polri Mabes and the Polda-Polda in
all of Indoinesia has not been briefly revealed, until the detention
against the applicant by Polri investigators.
The action establish the applicant or anyone of the citizen who
performs the feat as performed by the applicant to be a suspect who
followed an act of arrest and arrest, contrary to the guarantee
the constitutional one is given to any citizen entitled to a sense of
safe and protection from the threat fear of committing or not to do
something that is a fundamental right (Article 28G verse (1) of the 1945 Constitution) is the right
to participate in law and governance and the obligation to
uphold the law and the government without Except. Such actions may
occur, as it is derived from the provisions of Article 10 of the paragraph (2) of Act 13 of 2006
which does not expressly provide protection as a witness to the por
in such cases. While in order for interest and
general health and to achieve the benefits of magnitude to
in general interest, the applicant should have gained protection as
the witness.
In addition it also contradictory to the soul that
contained in Act No. 13 of 2006, as described
in the General Description of the Act, which states:" In
order to foster community participation to unravel the criminal offense,
needs to be created a climate that is conducive to providing legal protection
and security to any person who knows and finds a thing
that can help uncover the criminal acts that have been occurred and
reported it to law enforcement. Such a note should
be given adequate protection and security for its report, so that it
does not feel threatened or intimidated either right or soul. "
Giving witness protection in cases as described
above in casu against the applicant, must not provide impunity against
the perpetrator of the crime (violation of the non-imitable principle), and neither
constitutes a violation of the principle equality before the law. The subject matter
which must be solved in this case is the more
in charge when confronted between the demands of justice and
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General interest/health principles with non-compliance principles as well as principles
equality before the law? In my opinion, public interest and
the general health needs to be required rather than the principle of non-impunity or principle
equality before the law. Citizen participation rights in the law and
government for greater public interest as well as to uphold
wider public justice should not be sacrificed only to uphold
principle non-compliance or the equality before the law principle. Or at least,
precede the stated principle of interest and general health for
enforcing a broader public justice is far more important than
fulfillment of the non-compliance principle or equality before the lawprinciple, as long as
actions for the benefit and general health of it are done in a gesture of
good.
Enforcing non-alignment and equalitiy principle before the law
is good, but it is much better to priorite the principle of interest
and greater public health and public justice. Wider. This
corresponds to the principle in the kaedah ushul fiqh, if the problem
many and must be done by one at the same time, then more
is best chosen.
Ikhtibarul ashlahi, fa ashlah al ashlah.
Therefore, the implementation of the non-compliance principle and the equality principle
before the law in casu against the applicant in this case should be suspended
until the completion the disclosure of the corruption case reported by the applicant.
Based on The consideration is above.
Article 10 of the paragraph (2) Act No. 13 of 2006 on Protection
The witness, is constitutional, which is constitutional if it is interpreted
the witness of the por which reports on corruption and crime crimes
Other organizations can only be used as suspects or withheld in the same
case after the case in which the report is completed and is broken up by
the court.
PANITERA REPLACEMENT
ttd.
Cholidin Nasir